Torcasio, John v B and Z Klarica Investments Pty Ltd
[2009] VCC 1205
•5 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-04388
| JOHN TORCASIO | Plaintiff |
| v | |
| B & Z KLARICA INVESTMENTS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 and 18 September 2009 |
| DATE OF JUDGMENT: | 5 October 2009 |
| CASE MAY BE CITED AS: | Torcasio, John v B & Z Klarica Investments Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1205 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – whether the consequences of a knee injury were serious – satisfaction of test of loss of earning permits the plaintiff to claim damages for pain and suffering: section 134AB(37)(a) and (38)(c), (e) and (f)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC WITH | Slater & Gordon |
| Mr G Chancellor | ||
| For the Defendant | Mr N Rattray WITH | Lander & Rogers |
| Ms B Knoester | ||
| HIS HONOUR: |
Background
1 Before the Court is an application brought by Originating Motion filed on 15 October 2008 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr P Jewell SC appeared with Mr G Chancellor of Counsel for the plaintiff and Mr N Rattray appeared with Ms B Knoester of Counsel for the defendant.
4 The body function which the plaintiff says has been lost or impaired is the left knee.
5 The following evidence was adduced during the hearing:
• the plaintiff gave evidence and was cross-examined; •
Dr Sillcock, occupational physician, gave evidence and was cross- examined;
•
The plaintiff tendered the Plaintiff’s Court Book (“PCB”), pages 12-21 and 56-97: Exhibit A;
•
the plaintiff tendered a summary of earnings and tax returns for years ending 30 June 2003, 30 June 2004 and 30 June 2006: Exhibit B;
•
The defendant tendered the Defendant’s Court Book (“DCB”) pages 13-24 and 26-64: Exhibit 1;
• the defendant tendered the following documents: ƒ extract of the clinical notes of Dr Richards, general practitioner:
Exhibit 2;
ƒ plaintiff’s tax return for the year ending 30 June 2007: Exhibit 3; ƒ report of Mr P Moran, orthopaedic surgeon, dated 31 July 1997:
Exhibit 4;ƒ report of Mr Bracy, orthopaedic surgeon, dated 17 November 2006:
Exhibit 5;ƒ report of Dr Richards to Centrelink in October 2007: Exhibit 6.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e) impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born on 5 January 1963. He is now forty-six years of age. He was born in Italy.
10 The plaintiff completed Year 10 at Moorabbin Technical School. He completed a four-year plumbing apprenticeship. He was then self-employed and carried out some subcontract work, before commencing employment with the defendant in October 2000.
11 On 11 December 2002, the plaintiff was descending an apparatus known as a chariot. As he stepped off the bottom step and his left foot became caught in the end of a cast-iron pipe which was sitting at the bottom of the steps. He lost his balance and fell, twisting his left knee.
12 The plaintiff reported the incident at a first-aid post. He completed a register of injuries on the day of the incident. The register recorded that the plaintiff suffered an injury to his left knee with pain and inflammation localised to the medial area of the knee. He was given Voltaren cream and an adhesive supportive bandage. The register of injuries was signed by the first-aid officer.[5]
[5] PCB 96
The Plaintiff’s Medical Treatment
13 The plaintiff first saw Dr Richards, general practitioner, on 9 September 2003 for treatment for his left knee injury. The plaintiff gave Dr Richards a history consistent with the occurrence of the incident. He also told him that he had experienced pain in his left knee since the incident, but was able to do a light job and felt he was able to cope with the pain until around the time he first saw Dr Richards.[6]
[6] PCB 61
14 Dr Richards diagnosed a tear of the left medial meniscus. He provided the plaintiff with a referral to see an orthopaedic surgeon. The plaintiff decided not to pursue specialist treatment until his symptoms worsened, which saw him return to Dr Richards on 13 May 2004. On that occasion, Dr Richards referred the plaintiff to Mr Bracy, orthopaedic surgeon.[7]
[7] PCB 61
15 Mr Bracy first saw the plaintiff on 11 August 2004. After examining the plaintiff, Mr Bracy was of the opinion that it was likely that the plaintiff had suffered a medial meniscus injury. He recommended the plaintiff undergo an arthroscopy which he performed on 27 July 2005. The arthroscope revealed a grossly comminuted tear of the posterior half of the medial meniscus which Mr Bracy considered to be long-standing.[8]
[8] PCB 67
16 Mr Bracy reviewed the plaintiff on a number of occasions postoperatively, last seeing him on 17 November 2006. In the course of his treatment of the plaintiff, he recorded that the plaintiff complained of persisting left knee pain. This led Mr Bracy to refer the plaintiff to have an MRI scan on 17 October 2006. It demonstrated some degenerative changes in the medial meniscal remnant and some mild medial compartment and patella pathology.
17 Mr Bracy recommended that the plaintiff undertake bike riding, no doubt to rehabilitate the plaintiff’s left knee. When he last saw the plaintiff he was of the opinion that the plaintiff’s symptoms were minor, and that the plaintiff was generally managing the injury. He suggested adopting an expectant policy, by which I assume he meant that the plaintiff should wait and see how his left knee injury developed.
18 Mr Bracy was of the opinion that the plaintiff might require further treatment in the future which might include a joint replacement. In terms of capacity to work, he considered that he was fit to work as a plumber.[9]
[9] PCB 64
19 The plaintiff subsequently saw Dr Richards, who provided him with medication to control his pain. Dr Richards retired. One of his partners, Dr McInerney, has taken over the treatment of the plaintiff. The plaintiff is presently prescribed Celebrex, which is an anti-inflammatory, and he also uses Osteo Panadol, which is over-the-counter medication, to obtain pain relief. He said that neither medication helps him a great deal.[10]
[10] Transcript 64
The Medical Opinions
20 Dr Richards was of the opinion that the incident caused the injury to the plaintiff’s left knee. He described the injury as a tear of the medial meniscus, and he referred to there being damage to the articular surface of the medial facet of the patella and mild degenerative changes to the articular cartilage of the medial femoro-tibial articulation.
21 Dr Richards was of the opinion that it was likely that there would be a slow progressive decline in the condition of the plaintiff’s left knee, with arthritis eventually developing, to the extent that surgical replacement or resurfacing of the knee joint would be required. He was also of the opinion that the plaintiff would not be able to return to heavy physical work, and that he would need medical attention, including medication, indefinitely.[11]
[11] PCB 59
22 Mr Bracy’s opinion was similar to that of Dr Richards in terms of the nature and extent of the plaintiff’s injury. He was of the opinion that the plaintiff suffered a tear of the left medial meniscus with significant chondropathology affecting a wide area of the medial femoral condyle.
23 Mr Bracy was also of the opinion that the plaintiff might require joint replacement surgery. He differed in his opinion from Dr Richards, in that he considered that the plaintiff was fit to work as a plumber.
24 Mr O’Loughlin, orthopaedic surgeon, examined the plaintiff on 2 September 2008. He was of the opinion that the plaintiff suffered a significant medial meniscal tear in his left knee. He commented on the delay between the occurrence of the injury and the surgery, being of the opinion that the delay had possibly result in further damage to the plaintiff’s left knee and aggravation of underlying degenerative osteoarthritis.
25 Mr O’Loughlin considered that the plaintiff’s physical signs on examination were totally out of proportion to the pathology which he considered was present. He suggested that the plaintiff return to see Mr Bracy for reassessment.
26 Despite Mr O’Loughlin’s observations of the plaintiff’s behaviour on examination, he was of the opinion that the plaintiff would develop degenerative changes in the medial compartment of his left knee, and, depending on the degree of osteoarthritis present, there was a likelihood that he would require an arthroplasty or a hemiarthroplasty with or without a tibial osteopathy.[12]
[12] PCB 77
27 Mr O’Loughlin re-examined the plaintiff on 25 August 2009. On that occasion he was of the opinion that the plaintiff had sustained a genuine injury to his left knee as a result of twisting it, causing a tear of the posterior medial meniscus and an aggravation of pre-existing osteoarthritis of the left knee joint. He again expressed the opinion that the delay between injury and treatment had probably aggravated the condition of his left knee.
28 Mr O’Loughlin repeated his opinion that the plaintiff might well require one of the forms of surgery which he previously referred to.[13]
[13] PCB 79c-79d
29 Dr Sillcock examined the plaintiff on 30 March 2009. She was of the opinion that the plaintiff was suffering from osteoarthritis of the left knee secondary to a medial meniscal tear.
30 Dr Sillcock was provided with a vocational assessment report[14] in which the author of the report identified three jobs: namely, supervisor/plumber; sales representative (hardware and plumbing supplies); and stock and purchasing clerk (building and plumbing supplies). She was of the opinion that the plaintiff could theoretically undertake that sort of work, but he would need considerable retraining. She was of the opinion that at best the plaintiff could undertake sedentary work on a part-time basis not exceeding 15 hours per week.[15]
[14] DCB 26-32, and particularly at DCB 30-31
[15] PCB 85
31 The defendant obtained a further vocational assessment report[16] in which the author of the report identified a further three jobs: namely, plumbing inspector; sales representative (plumbing supplies); and project estimator.[17]
[16] DCB 33-64
[17] DCB 45-47. Each of the jobs was accompanied by a job description and rates of gross weekly earnings – at DCB 45-47
32 Mr Jewell asked Dr Sillcock whether she considered that the plaintiff would be capable of doing any of those three jobs. She was of the opinion that the plaintiff would not be able to do any of those jobs.[18]
[18] Transcript 70-73
33 Mr Rattray cross-examined Dr Sillcock at some length regarding the plaintiff’s capacity to work. He put a number of opinions of other medical practitioners to Dr Sillcock, on the basis that those opinions suggested that the plaintiff was more capable than Dr Sillcock considered him to be in terms of his capacity for work. It was not my impression that Dr Sillcock changed her opinion in any material way from that stated in her report.[19]
[19] PCB 80-88
34 Dr Brown, occupational physician, examined the plaintiff on 21 June 2004 for an insurer. He was of the opinion that the plaintiff had suffered an injury to his left knee. At the time when he examined the plaintiff he considered that he was fit to undertake light duties not involving heavy lifting or extensive ladder work.[20] Dr Brown examined the plaintiff before he underwent the arthroscopy.
[20] DCB 15
35 The defendant was in some doubt whether the plaintiff had in fact suffered an injury to his left knee. The doubt was based upon the delay between the plaintiff suffering the injury and seeking medical treatment from Dr Richards on 9 December 2003. The defendant provided Dr Brown with an investigator’s report and asked him for his opinion on causation. In a report dated 25 June 2004, Dr Brown said that the material he was provided confirmed his opinion that the plaintiff suffered injury in the incident which occurred on 11 December 2002.
36 The plaintiff was cross-examined on that very issue by Mr Rattray. The plaintiff said that he was managing the left knee injury until he was shifted from Port Melbourne to a worksite at Burwood where he was required to do heavy manual work which caused his left knee to worsen.[21] He then saw Dr Richards with worsening left knee on 9 September 2003.
[21] Transcript 26-28 and 65
37 Mr Love, orthopaedic surgeon, examined the plaintiff for an insurer on 27 September 2007. Mr Love was of the opinion that the plaintiff’s diagnosis was obscure. He was of the opinion ultimately that the plaintiff was suffering from a chronic pain syndrome. His opinion is entirely out of keeping with the other medical practitioners who have examined the plaintiff.[22]
[22] DCB 18
38 Mr Dooley, orthopaedic surgeon, examined the plaintiff for the defendant on 22 January 2009. He was of the opinion that the plaintiff suffered a tear involving a degenerate posterior horn of the medial meniscus in association with early degenerative changes affecting the medial side of the left knee joint.
39 Mr Dooley was of the opinion that because of the effluxion of seven years since the injury occurred he expected the underlying medial compartment arthritis to evolve naturally from a mild to moderate degree.
40 Mr Dooley was of the opinion that the plaintiff was unfit to perform heavy physical work which involved prolonged standing, kneeling and squatting. He advised a cautious approach to any consideration of surgery, but conceded that the arthritis in the plaintiff’s left knee would progress to a point where the replacement surgery would have to be considered.[23]
[23] DCB 21-22
41 Mr Dooley was provided with the same vocational report provided to Dr Sillcock. He was of the opinion that the plaintiff would be capable of working in all three of the jobs described by the author of that report. However, in giving that opinion in a short report dated 9 July 2009, he did not analyse what those jobs involved, nor did he state why he considered the plaintiff would be capable of undertaking all three jobs. He added that the jobs were suitable so long as they did not involve any significant kneeling and squatting. He said that the plaintiff could work to a point where he could increase his hours to full-time work in a light physical or clerical capacity.[24]
[24] DCB 24
Serious Injury
42 Mr Rattray did not contest the fact that the plaintiff suffered an injury to his left knee consistent with the opinion of Mr Bracy; that is, that the plaintiff had suffered a tear of his left medial meniscus with significant chondropathology (damage to the articular cartilage) affecting a wide area of the medial femoral condyle.
43 It occurred to me that the preponderance of the medical evidence (save for the opinion of Mr Love which I reject) supported the conclusion that the plaintiff had an osteoarthritic left knee before the incident occurred. The incident caused damage to the left medial meniscus and aggravated widespread degenerative changes in his left knee.
44 Mr Rattray did not seriously contest the fact that the injury to the plaintiff’s left knee resulted in an impairment of the function of his left knee and that the impairment was permanent.
45 I consider the plaintiff’s explanation relevant to the delay between suffering injury and first seeing Dr Richards to be entirely plausible. I cannot see how he can be criticised for having suffered an injury which he tried to manage until it got to a point where he could no longer manage it. It is abundantly clear from the register of injuries that he suffered an injury which the first-aid officer diagnosed fairly accurately on the very day when the injury occurred.
46 The real issue in this case was essentially whether the consequences to the plaintiff in terms of pain and suffering and loss of earning capacity met the statutory tests.
47 I was invited by Mr Jewell to consider the question of loss of earning capacity first, given what the Court of Appeal has recently said in Advanced Wire & Cable Pty Ltd v Abdulle (supra).
48 After considering all the evidence and the submissions made by Mr Jewell and Mr Rattray I intend to take that approach.
49 The plaintiff struck me as being a fairly simple, straightforward and uncomplicated man. I consider that he gave his evidence reasonably and informatively. I saw nothing about the way he gave his evidence, nor the content of his answers, that would lead me to do other than accept his evidence in whole.
50 After the plaintiff suffered injury to his left knee he continued working until the Christmas break after having some time off. He returned to work and was able to work through 2003 until he was moved to a worksite in Burwood where he engaged in heavy manual work which caused a worsening of his left knee.
51 Before he first saw Dr Richards on 9 December 2003, his employment with the defendant was terminated in November 2003. He was told that there was not enough work to him to be kept on.
52 Between January and June 2004, the plaintiff worked for Swalle Design & Construction Pty Ltd as a peggie. The work was light and involved cleaning sheds and worksites.
53 In 2006, he worked as a plumber for M T R Building Services for about three to four months doing general domestic plumbing work.
54 Subsequently, the plaintiff took up work with his nephew who conducts a cleaning business known as Southern City Cleaning. He began working for his nephew in 2006 after he finished with M T R Building Services. The plaintiff still works for his nephew.
55 The impression I obtained from the plaintiff’s evidence was that the work he undertakes for his nephew is light work. The plaintiff said that his nephew obtains work through leaflets drops. He might get four or five jobs a week or less and sometimes none.[25] The plaintiff said that he might be able to work three hours a day for his nephew, but he would be pushing it to work four hours per day. On average he might work one to three hours per day for his nephew when his nephew has work.[26]
[25] Transcript 66
[26] Transcript 53
56 Mr Rattray cross-examined the plaintiff about whether he could undertake work as a plumbing inspector, sales representative (plumbing supplies) or as a project estimator. The plaintiff said that he was basically a plumber without any skills, training or experience beyond general plumbing work. He said he could not do any of those jobs, nor did he believe he could succeed in doing any retraining because of what he considered to be his basic level of intelligence.[27]
[27] Transcript 42-49
57 Mr Rattray submitted that the opinions of Mr Bracy and Mr Dooley should persuade me that the plaintiff is fit for work as a plumber and probably in any of the three jobs referred to in the last vocational report. He based that submission partly on the opinion which Mr Bracy expressed when he last saw the plaintiff, that his symptoms were mild and that he was fit to work as a plumber.
58 However, that submission fails to have regard to the opinions of all of the medical practitioners who have expressed the opinion that the degeneration in the plaintiff’s left knee is progressive. Mr Jewell put that very question to Dr Sillcock, asking her whether it would surprise her that there may be changes in the plaintiff’s left knee from the time Mr Bracy last saw the plaintiff compared to the time when she saw him. Her answer was that she would not be surprised, because two-and-a-half years had elapsed. She was of the opinion that the pathological changes and the symptoms experienced by the plaintiff in that time would have been significant. She added that the progressive nature of the degenerative disease would gradually restrict the plaintiff further and further.[28]
[28] Transcript 97-98
59 I find not only that the plaintiff suffered the injury to his left knee which I referred to earlier, but that he suffered an aggravation of pre-existing degenerative disease in his left knee which is progressive in its nature and has progressed to such an extent consistent with the opinion of Dr Sillcock.
60 The opinion of Dr Sillcock explains the evidence of the plaintiff that he even finds working for his nephew on a part-time basis difficult because of the pain he experiences in his left knee. It is likely that the progressive nature of the degenerative process has now reached a point where his capacity is reducing.
61 On the basis of this evidence, and in particular Dr Sillcock, I find that the plaintiff is now in a position where he cannot work as a plumber, and certainly not in any of the occupations described in the recent vocational report, and that he is essentially only fit for work as a cleaner.
62 Dr Sillcock reluctantly seized upon 15 hours per week as being the plaintiff’s capacity, but qualified it as being a theoretical capacity, not a residual capacity in the plaintiff which he can exploit as a plumber or in some allied job or alternative employment.
63 When the plaintiff last worked for the defendant his gross earnings were $69,671 for the year ending 30 June 2003. Mr Jewell submitted that in the three years post-injury his earnings would be $73,154 for the year ending 30 June 2004; $76,812 for the year ending 30 June 2005; and $79,894 for the year ending 30 June 2006. The foregoing was based upon the opinion of Ms Oliver of Flexi Personnel.[29] The calculations were made based upon material obtained from the CFMEU which supported the extrapolation of the plaintiff’s income from 30 June 2003 onward.
[29] PCB 88a-88b
64 Mr Rattray objected to the plaintiff’s use of those figures; however, for two reasons I ruled against Mr Rattray’s objection. Firstly, the calculations were tendered without objection, with objection only being taken during Mr Jewell’s address; and secondly, I consider the resort to figures to be academic and beside the point, considering the findings I have made below.
65 I consider that the evidence of the plaintiff and the preponderance of the medical evidence, but in particular Dr Sillcock, supports the conclusion that the plaintiff cannot work as a plumber and has a very restricted capacity to work. I accept the plaintiff’s evidence that he has attempted to return to work on two occasions as a plumber and has failed, and has resorted to very light work as a domestic cleaner which is probably the only job which the plaintiff is now capable of undertaking.
66 I consider the submission made by Mr Rattray that the plaintiff could retrain and return to the plumbing field of employment to be untenable.
67 Therefore, I find that the plaintiff suffered an injury to his left knee as a result of the incident which not only caused meniscal damage, but also aggravation of degenerative changes which are progressive and which have significantly reduced his capacity for work and will continue to do so, with a risk that the plaintiff will require radical surgery variously described by the orthopaedic surgeons who have examined him.
68 I find that the reduction of the plaintiff’s capacity for work is extensive and has consequences for the plaintiff in terms of his capacity for work which have reduced him to relatively insignificant part-time work as a domestic cleaner. In these circumstances I find that the plaintiff meets the statutory test for loss of earning capacity; that is, that the consequences to him in terms of loss of earning capacity deserve the description at the least very considerable when judged by comparison with other cases in the range of possible impairments or losses of a body function.
69 For the sake of completeness I should refer to the submission made by Mr Rattray that the plaintiff’s loss of earning capacity was partially caused by a persisting lower back injury.
70 The plaintiff admitted suffering an injury to his lower back in about 1996. He saw Dr Richards, who referred him to Mr Moran, orthopaedic surgeon. At the time when the plaintiff saw Mr Moran he had been suffering from left- sided sciatica from about one month.[30]
[30] Exhibit 4
71 Dr Richards completed a treating doctor’s report dated 12 October 2007 directed to Centrelink in support of an application by the plaintiff to obtain Centrelink benefits. The plaintiff also signed the application on 10 October 2007.
72 Dr Richards described the plaintiff as suffering from recurrent lower back pain with current symptoms comprising pain radiating into both posterior thighs. He also said that restricted the plaintiff’s ability to lift and bend.[31]
[31] Exhibit 6
73 The plaintiff denied that his lower back problem was of the magnitude which was suggested by the description given to it by Dr Richards in the application. He said that it had not interfered with his capacity for work, and that appears to be the case, because he was subsequently employed without any apparent difficulty. I accept the plaintiff’s evidence.
74 In any event, there is no other evidence of any substance to suggest that the plaintiff’s current loss of capacity for work is caused by any other medical problem other than his left knee.
Conclusion
75 On the basis of the foregoing reasons, findings, and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
76 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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