Wade v Lawrence
[2013] VCC 884
•23 July 2013
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-13-01120
| LINDSAY DAVID WADE | Plaintiff |
| v | |
| GARY IAN LAWRENCE | Defendant |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 10, 11, 12, 15 and 16 July 2013 | |
DATE OF JUDGMENT: | 23 July 2013 | |
CASE MAY BE CITED AS: | Wade v Lawrence | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 884 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the low back – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Humphreys v Poljak (1992) 2 VR 129; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; O’Donnell v Reichard [1975] VR 916
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti SC Mr G Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr P B Jens Mr M K Clarke | Wisewould Mahony |
HIS HONOUR:
1 In this matter, case number CI-13-1120, the plaintiff, Mr Wade, applies for leave to issue Common Law proceedings in his application for a serious injury certificate refused by the insurer on 18 February 2013.
2 Subsequent to such refusal, the Originating Motion of 13 March 2013 was lodged to seek leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) hereinafter called “the Act”.
3 Mr Monti, of her Majesty’s Counsel, and Mr Pierorazio appeared on behalf of the plaintiff, and Mr Jens and Mr Clarke appeared on behalf of the defendant.
4 In opening, Counsel for the plaintiff identified the body part as the lower back, and the serious injury as being a part (a) injury as per the definition of “serious injury” pursuant to ss(37) of the Act.
5 The applicant sought leave to seek damages for both pain and suffering consequences and loss of earning capacity consequences: see s134AB(38)(b)(i) and (ii).
6 As to the law relevant to such an application, the Court is now assisted by ss(38)(b) and (c) of s134AB of the Act, being a statutory recognition of the principles expanded upon by the Appeal Division of the Supreme Court of Victoria, as it then was, in Humphries v Poljak (1992) 2 VR 129 at 140, and generally by ss(19)(a) and (b) of such section, and also again by the Court of Appeal in Barwon Spinners & Ors v Podolak (2005) 14 VR 622.
7 The Court continues of course to be assisted in such determinations by the general principles espoused in Humphries v Poljak and in Cropp v Transport Accident Commission & Beglehole [1998] 3 VR 357.
8 While I assume it is not necessary to state, one of course understands the definition of injury pursuant to those cases to which I have referred, did not include the word “permanent” which has been substituted, it previously having being the definition of the words “long term”.
9 The plaintiff tendered Exhibits A to N. The plaintiff was called and attested to the truth of his two affidavits, Exhibits B1 and B2. The plaintiff also called his wife, who attested to the truth of her affidavit, being Exhibit C.
10 The defendant tendered Exhibits 1 to 8 and cross-examined both the plaintiff Mr Wade, and Mrs Wade.
11 In this matter, I was much assisted by the final addresses of both counsel.
12 During the hearing and after Mr Jens had cross-examined the plaintiff, I questioned Mr Jens as to the terms of his opening. In his opening, he had said that the major issue involved in the case, as far as the defendant was concerned, was whether the narrative test was satisfied, and he had submitted that the defendant would submit that I should find on all the evidence that the narrative was not satisfied.
13 I said to him that from the manner in which his cross-examination had proceeded, I had wondered if indeed the defendant’s real issue was whether this alleged injury and/or accident at work had actually happened. Mr Jens said no, that the defendant did admit that there was an injury caused at work and that there was no issue about that, and indeed that such injury was to the lower back. Mr Jens said that despite the cross-examination, the issue was, as he originally opened it, whether the plaintiff in this case met the narrative test.
14 Mr Jens submitted that the purpose of the cross-examination, that is, the analysis of the background of the injury, the circumstances of the termination of work of the plaintiff on 19 April 2010 and the ultimate reporting of the alleged injury to the general practitioner on 20 April 2010, that such cross-examination and concentration on those matters was for the purpose of indicating that the physical impairment and/or impact of the alleged injury was not as suggested in evidence by the plaintiff. Indeed, Mr Jens submitted that I should find in all the circumstances that the impairment was not such as to establish a serious injury upon either consequence.
15 The determination of the factual issues cross-examined upon is a matter that affects the credibility of the plaintiff and his wife.
16 In the affidavit of the plaintiff, Exhibit B1, in particular at page 16, paragraph 12, the plaintiff swore in that affidavit, and confirmed in this Court, that the problems with pain in regard to his lower back had begun in early 2009 when he started to feel symptomatology in the back and the hip which he said was due to the car seat, and the awkward condition in which he was forced to drive the car in his employment with the defendant.
17 The plaintiff said that he drove the car in that damaged condition for a period of nine months, with the seat not being replaced. He further said that in June 2009, the seat was finally replaced, and at that stage his back got better. However, by September 2009, the seat had gone again and he had complained directly to his employer, Mr Lawrence, again.
18 Indeed, he said in evidence that in November of that year he had indeed shown Mr Lawrence the car and Mr Lawrence had driven the car himself and had said that the seat was no good. He further said that despite that, the seat was not replaced and he had to drive the car in such condition until April 2010 when he had to finally went off work.
19 Just prior to the day that he received his email termination notice, he said that he had already pre-booked an appointment with Dr Chabbou. He, when cross-examined, denied that he had made this appointment only after he had actually been terminated.
20 In Exhibit 1, Mr Lawrence, by way of affidavit, in particular at paragraph 8, spoke as to these issues. He said that the seat in the car was replaced in February 2009, following complaints in January 2009. He said that from that time there was no complaint about the seat by the plaintiff until after he had been dismissed.
21 In paragraph 12, there was a variation on such, in the sense that Mr Lawrence said that there had been a complaint of the plaintiff having hurt his back at some time about the time that he was using his own vehicle, or his wife’s vehicle, for the work. According to the plaintiff’s affidavit, that time would have been approximately April 2010.
22 There were photographs tendered which were Exhibit 7. Those photographs, according to the plaintiff, showed seat damage. The problem was, the photographs of the damage which the plaintiff said were to the seats which had caused his difficulty in driving, were taken after the car had been involved apparently in an accident. There was no independent evidence from either party as to the actual condition of the seats, nor was there any expert evidence called on this issue.
23 It should however, be remarked that in the medical report of Dr Todhunter, the pain specialist, Exhibit F2, he had noted, as had Dr Bowles, the occupational physician, Exhibit 4, and Professor Hart in Exhibit 5(a), that an injury being caused in such manner was clearly possible.
24 In final submission, Mr Jens was particularly critical of the plaintiff’s presentation of the case, in the sense that this clear conflict between the plaintiff’s sworn affidavit and evidence given in Court as to the circumstances of his complaint, and the length of time over which he had complained and what his employer said in Exhibit 1 was not in any way sought to be alleviated by the calling of Mr Lawrence for cross-examination.
25 In cross-examination, it was put to the plaintiff that he had never, indeed, apart from the initial time recorded by the plaintiff in his affidavit, complained that he had suffered injury at all as a result of his work duties. The plaintiff said in evidence he had, and indeed it was a regular occurrence in late 2009, that he was complaining about the pain that he was suffering in his employment, and indeed, that pain was such that it was causing him a great amount of discomfort. However, at Transcript (“T”) 3, he said, despite the pain, he did not, to use his words “didn’t think a great deal about it” until December 2009.
26 Indeed, at T26, he said in fact he went to the chiropractor in 2009 due to back pain caused by his car.
27 In cross-examination, it was put to the plaintiff that a perusal of the clinical records of the general practitioner and of the records of the chiropractor demonstrated that in fact at no time did he refer to his back during 2009; that is, when he went to the chiropractor on 23 December 2009, see Exhibit 6, and to the general practitioner on four occasions in 2009, those occasions being 8 October, 12 October, 1 December and 21 December 2009 as detailed in Exhibit E6, and further, on one occasion in 2010, being 31 March 2010.
28 It was put to the plaintiff that on none of those occasions had he ever reported the issues concerning a bad back.
29 At T49-50, he in fact maintained that he was sure that he had told his chiropractor and doctor about his bad back.
30 Indeed, as a perusal of the clinical records demonstrates, the first reference to a doctor about the complaint of an injury caused by a car, was in the consultation on 20 April 2010. The point in regard to that consultation as shown in the clinical records, is that there is no reference in the history given by the plaintiff on that day to Dr Chabbou of such having occurred in 2009 at all. Indeed, the notes taken by the doctor would indicate a reference by the plaintiff that this problem first arose in February 2010. It is not insignificant to note that the diagnosis made by Dr Chabbou on that occasion was one of muscle strain.
31 Dr Chabbou sent the plaintiff off for physiotherapy and the plaintiff reported that he was getting better as a result thereof, at a clinical attendance on 27 April. Thereafter, he was seen again on 3 May 2010 by Dr Chabbou and the plaintiff reported that the physiotherapist had cleared him to go back to work. Further, according to the clinical notes, the plaintiff told Dr Chabbou that he indeed himself was feeling very well and was happy to return to work; however, his worker’s compensation claim had been denied by the boss.
32 In fact, as the plaintiff said in evidence, he had previously been dismissed prior to that attendance upon his doctor, and had been dismissed by way of a receipt of an email received on 19 April 2010 as shown in Exhibit 8.
33 In support of the plaintiff’s claim as to the impact of the car and as to the back injury caused thereby, his wife filed an affidavit, as I have said, Exhibit 6, sworn 26 June 2013. Mrs Wade was called to the Court for cross-examination and was interposed.
34 In re-examination, at T118, Mr Wade said that at the time of the cessation of his employment, the plaintiff had suffered from back pain for at least 12 months. Also, on the next page, she said that the pain he suffered at that time was to a degree that he would get out of the car hunched over and would be walking with a limp. She said that the plaintiff had said to her that his whole back was hurting, and he went to the chiropractor to have it put back in. He had told her that the seat was bad and was causing his injuries, and she had sat in the seat and she, as a result, had almost fallen into the door.
35 The plaintiff, in re-examination at T149, had said that in September 2009, his back was so bad from driving the car that he could not even sit down. Again, in re-examination at T151, he said that as a result of driving and the condition of the seats, he would be twisted into the door and would be literally sitting on the door. At T152, again in re-examination, he said that in the six months prior to being terminated he had to use his wife’s car because the condition of the seat was hurting him so much.
36 At T156, the plaintiff said in December 2009, being asked in re-examination why it was that he did not report or do anything about the injury until that time, he said it was hurting a “hell of a lot” and was hurting him on a daily basis, and as a result, he said that he was taking over-the-counter medication, and that the extent of such medication was that he was taking eight to nine tablets every day which he said at T157, being Panadeine Extra or Nurofen.
37 The plaintiff was asked what was his state when he finally consulted the doctor in April 2010, and at T156, he said at that stage he was in pain every day and had trouble getting in and out of the car, or of cars generally.
38 Finally, in re-examination at T159, as of March 2010, the plaintiff said his injury caused by the car produced pain which was intense, and on occasions he could not even get out of bed, he had to roll out, and as a result it was on occasions hard to even walk.
39 In cross-examination at T41, it was put to the plaintiff, to which he agreed, that throughout the period of January to April 2010, he had not in fact had any days off from work as a result of such back injury. When asked as to his work and the times that he worked during such period prior to being dismissed, he said that he would work on average from 7.00pm through to 4.30am, and on average each day he would travel in the car between 150 to 170 kilometres per day and was working a six-day week.
40 Coming up to the time that he was terminated, he said that he had worked over that weekend, and indeed had worked on the Saturday night, the 17th. He also worked on the Sunday morning. Again, he worked on the Monday when he actually dropped off the takings that he had picked up on the Sunday.
41 The plaintiff agreed, at T45, that there was no specific incident which occurred at work which had caused his back injury.
42 As to the week leading up to the time of his termination, that is the week from 12 April to 19 April, the plaintiff was asked was there anything different about the routine he had followed, and at T47, he said no, that, he had followed a normal routine of work that week. He was further asked about the week that he started on the 19th prior to being terminated and said that he had indeed started work and made a delivery that morning, and, T48, that he was anticipating on that day that he would work and continue to work a normal week.
43 It was then put to the plaintiff that he had put a WorkCover claim in regard to this matter, Exhibit M at page 77 of the Plaintiff's Court Book. In that claim he is asked “When did you first notice the injury?” and his answer was “10 March 2010”. He was asked by Mr Jens as to how that is so, if in fact he said it happened in 2009. At T61, he said “That's when it started to get bad”.
44 Then Exhibit 6 was put to him, which was a questionnaire that he had filled out upon attendance at his chiropractor on 23 December 2009. It was put to the plaintiff, how was it that when he had filled out a questionnaire in regard to his own health, there was no reference at all to his back? It is noted that when he finally attended the doctor and ultimately attended upon Dr Todhunter, the pain specialist, in each instance he told Dr Chabbou and Dr Todhunter that the pain had first come upon him in the April of 2010.
45 Mr Jens, in final submission, referred to the principles of O'Donnell v Reichard [1975] VR 916, 929 at paragraph 27, insofar as the chiropractor and Dr Chabbou, and said that I could use such principles to conclude that those witnesses could not have helped the plaintiff. It seems to me that I do not need to adopt those principles in this case. The plaintiff himself has quite readily accepted, though he thought he did complain, that the evidence shows that at no stage, to any doctor or chiropractor, was any complaint made by him of any such injury to his back or a problem in regard to the car, prior to the time that he saw Dr Chabbou in April.
46 In analysing all of such evidence by way of his evidence-in-chief, the cross-examination and also the affidavits of both himself and his wife, I have determined that I do not accept the evidence of the plaintiff or his wife.
47 I do not accept their evidence in regard to three aspects: firstly, when he began to suffer pain from the car; secondly, as to the extent and degree of such pain and thirdly, as to the physical limitations caused by such pain.
48 I do not accept such evidence because of the failure of the plaintiff, had he been in such severe and unremitting pain and suffering the restrictions to which he has sworn, to firstly, as he had in fact said he thought he had done, mention such to either his general practitioner or chiropractor, and secondly, when actually consulting his chiropractor or general practitioner in 2009 and prior to April of 2010, that is, prior to when he was dismissed, not to have ever mentioned such severe pain and restrictions.
49 Looking at the plaintiff’s affidavits, Exhibits B1 and B2, and his sworn evidence in Court and the totality of the evidence, I find the plaintiff to have been an unreliable witness in this regard, and indeed, an untruthful witness. I also form the same opinion as to his wife.
50 It is to be noted that the furthest Mr Jens went in cross-examination in this regard was to put to the plaintiff the proposition that he was not suffering from back pain prior to April 2004, the date of his termination, and albeit that it was not put by Mr Jens that the plaintiff was “lying or whatever”, Mr Jens put that he was mistaken: see T33.
51 The question arises, given my findings, as to where that leaves the plaintiff’s application.
52 I am required to determine these applications upon a consideration of all of the evidence: see Jayatilake v Toyota Motor Corporation (Aust) Ltd (2008) 20 VR 605 at paragraph 17.
53 As I have recorded, when the plaintiff did report his alleged back pain, which he said had arisen in the February of 2010 to the general practitioner, Dr Chabbou, he was subsequently cleared, apparently, according to his report to Dr Chabbou on 3 May 2010, by the physiotherapist to return to work, and indeed, that was his stated intent according to the clinical records of Dr Chabbou. However, the plaintiff did not return to work, albeit that he did work for an alternative security organisation unsuccessfully for a period of three nights: see paragraph 18, Exhibit B1, he was subsequently placed upon weekly payments by the insurer, and has been off work since that time.
54 The plaintiff’s case has been presented on the basis that due to his injury and pain which arose before April 2010, he has and is totally incapable of working and is still in such condition, albeit that he helps out in a limited way by assisting his wife in mowing for her clients.
55 Indeed, in re-examination, the plaintiff said that his capacity, if the back pain is not bad, is such that he is able, on a ride-on mower, to do two to three lawns a day which take approximately 45 minutes to one-and-a-half hours each. He stressed, however, that is when such work is available.
56 The reports of the general practitioner tendered as part of the casebook were reports of Dr Dumitrescu, not Dr Chabbou. Apparently he was treated by both. The treating general practitioner, that is Dr Dumitrescu, reports the plaintiff complaining of chronic low-back pain, and she thought that such was complicated by depression.
57 In Exhibit E3, the general practitioner had received the medico-legal report of Mr Scott, orthopaedic surgeon. That report is dated 16 August 2011, Exhibit 2(b). She noted in her report that Mr Scott had concluded that the plaintiff’s changes were minimal and that he was exhibiting abnormal illness behaviour. Both her history and Mr Scott’s history was as given by the plaintiff, based upon the pain beginning in September 2009 and worsening up to April 2010.
58 In Exhibit E3, in the report of the general practitioner of 21 September 2011, Plaintiff’s Court Book 41, the general practitioner remarked that the plaintiff had been difficult to treat and had a poor response to even simple analgesia. As a result, she decided to refer him to a psychologist, David Jones, and a pain therapist, Dr Todhunter. He apparently made little progress with the psychologist and the report in the casebook of the psychologist, Mr Jones, was not tendered by the plaintiff at the hearing.
59 Dr Todhunter’s reports were tendered, and his first report is Exhibit F1 of March 2012 at page 49 of the Plaintiff’s Court Book. Apparently the plaintiff had not attended during 2011 on a number of occasions for appointments. Dr Todhunter confirmed Mr Scott’s opinion that the medical imaging demonstrated non-specific degenerative changes with no nerve compression, and that there was nothing demonstrated that could be surgically fixable.
60 Dr Todhunter recommended for the plaintiff a pain management program to try to assist him with what he diagnosed as secondary depression and complex psychosocial changes, and indeed the plaintiff ultimately participated in such a program from 8 July to 27 July 2012: see Exhibit G. It is noted on the schedule of medications (Exhibit E6) that during that time, he was placed on Lyrica.
61 In Dr Todhunter’s report of June 2013, Exhibit F2, he noted that the plaintiff reported continued pain, and he diagnosed that that was the result of pain sensitisation caused when the intervertebral discs cannot repair. By that stage, Dr Todhunter had been supplied with a medical report of Mr Brearley, general surgeon, that report being Exhibit K at page 60 of the Plaintiff’s Court Book, and it was Dr Todhunter’s view in June 2013, that the plaintiff was suited for light work involving something by way of three hours per day of between four to five days per week.
62 Mr Monti relied strongly on the opinion of the general practitioner in his final address, which he said was supported by Dr Todhunter and the report of Ms Henderson, the occupational therapist, Exhibit L.
63 The general practitioner, in Exhibit E5, in a report of 21 January 2013 at page 47 of the Plaintiff’s Court Book, opined that the injury had caused a Chronic Pain Syndrome, and such Pain Syndrome was exacerbated by a reactive psychological problem related to back pain. Similar to Mr Scott and Dr Todhunter, she was of the view that the imagery in regard to the spine detected little. However, the doctor was adamant that this was a work-related mechanical problem which had caused a Chronic Pain Syndrome and that such had been caused by his driving with the defendant. She was of the view that such ongoing pain affects all aspects of his life and indeed it had caused clinical depression.
64 Mr Monti, in final submissions, submitted that such opinion of the general practitioner was supported by the medico-legal report of Mr Brearley. Such report, as I have said, is Exhibit K, and was a report of February 2013 located at page 60 of the Plaintiff’s Court Book. He diagnosed essentially what would be termed “a light work back” which restricts the plaintiff’s activities. He said that the plaintiff was suited to light work on a full-time basis; however, he was limited on examination in his movements, and he noted that he was not currently undergoing any treatment.
65 Mr Brearley opined, at page 63, that the plaintiff suffered a mechanical condition of the lumbar back secondary to pre-existing degenerative changes at a point being L5-S1 where there was an annular tear. Based upon the history, indeed the history presented by the plaintiff, upon which I have commented earlier, Mr Brearley thought that the probabilities were that such was caused by the driving of a car with a broken seat over a long period.
66 Mr Monti also relied upon the opinion of Mr Hart, a doctor whose report is in the Defendant’s Court Book, and which I will talk about later.
67 Mr Monti also tendered Exhibit J, which was a Medical Panel opinion of 28 September 2011 made for the purposes of s91 of the Act and which had determined an impairment assessment at a level of five per cent. This apparently was tendered for the purpose of proof that the defendant had accepted the plaintiff’s injury and that the injury was permanent. As I say, in the circumstances, Mr Jens did not dispute the circumstances of the occurrence of the injury, and the issue as to permanence obviously, despite the opinion of the Panel, is ultimately a matter for the Court.
68 Coming then to the defendant’s medicals, I have already mentioned Mr Scott’s first report. In his final report, Exhibit 2(c) located at page 27 of the Defendant's Court Book of September 2011, Mr Scott identified what he described as a minor ongoing work-related organic disability with a major pain amplification and abnormal pain response.
69 The defendants also tendered a report from the surgeon, Mr Battlay. That was Exhibit 3, Defendant’s Court Book page 29, a report of June 2011. Again, Mr Battlay’s opinion was given upon the history provided in the terms that I have already referred to by the plaintiff. Even upon that history, that is a history extending into 2009, Mr Battlay was of the opinion, at page 32, that was he was dealing with was “a Chronic Pain Syndrome for which no clinical or radiological abnormality is accountable”. Mr Battlay was of the view that there may have been some age-related changes to the spine and the job had caused some symptoms; however, in his opinion in June 2011, the plaintiff displayed no objective abnormality and had no permanent injury.
70 The defendant also tendered a report of September 2012 at page 34, from the occupational physician, Dr Bowles. His opinion, at page 37, was that the plaintiff, if he had a back injury, that such back injury would have long since resolved. Dr Bowles noted that as of the time of his examination, the plaintiff had been two years unemployed. His opinion was that there was no injury or medical condition of the lower back at that time, but that the plaintiff presented with a number of non-organic features.
71 Finally, in the Defendant's Court Book were the opinions of Mr Hart, to whom I have already referred, and to which Mr Monti referred in final submission. The first of those is Exhibit 5A, a report of January 2013 in the Defendant's Court Book at page 44. Adjunct Professor Hart was, and is, an orthopaedic surgeon. He took a full history of the alleged work injury as detailed by the plaintiff, in particular at paragraph 41, and he, at paragraphs 48 to 51, reported in quite minute detail the full medical treatment history of the plaintiff. What is clear from that history as reported, was the low-back pain reported by the plaintiff had developed first in September 2009.
72 Upon examination, Professor Hart noted low-back pain which produced, according to him, marked limitation of movement out of proportion to the history and the imaging. Professor Hart noted, in his view, a psychological history with positive Waddell signs, such signs having been also found by Dr Bowles. Professor Hart was of the view that it was those psychological factors which prevented the plaintiff from returning to security work despite, as he said at page 56, being physically able to do so. He was of the opinion, however, that there were mild degenerative changes at the L5-S1 level, which was consistent with the site of pain as shown by the plaintiff, and that was indicative of the need for limitations in carrying out such light work.
73 Adjunct Professor Hart reported again in regard to the plaintiff in June 2013, Exhibit 5(b), page 58 of the Defendant’s Court Book. He noted there had been a change, in that the plaintiff was now carrying out mowing works for his wife but with persisting low-back pain. He described that as a positive development. He noted that the plaintiff was having no medication; he described him as having a light work back, and he described the symptoms as being out of proportion to the pathology, and said that the psychological factors were playing a role.
74 Upon analysis of all the evidence, despite strong support of his general practitioner, the pain therapist, Dr Todhunter, and Mr Monti’s references to both Mr Brearley’s report and the reports of Professor Hart, I am not satisfied that the plaintiff has satisfied the requirements of the proof of a serious injury in this matter.
75 On the evidence as presented, and upon my conclusions as to the credibility of the plaintiff, I am unable to conclude what is the extent of the physical injury impairment allegedly sustained by the plaintiff, as is the onus upon the plaintiff pursuant to s134AB(38)(h).
76 As such, I am unable to assess the consequences as to their seriousness as required by s134AB(38)(b) and (c).
77 As detailed in Jayatilake v Toyota Motor Corporation (supra), I am unable upon the evidence to conclude on the probabilities, even though here there has been no attempt to identify the impact of these supervening psychological sequelae, that the physically-based impairment satisfies the statutory test.
78 I should say, as to the presentation of the case as to the alleged loss of earning capacity consequences as required by ss(38)(e) and (f), such was presented on the basis that somehow I could conclude the plaintiff’s current wages by way of ascribing to him a wage value made up by way of a representation of the monies paid by his wife in her business for the costs of leasing, or hire purchase or financing costs, of the motor vehicle which the plaintiff uses in order to mow lawns. Mrs Wade gave evidence that she pays her husband no monies for the service that he performs for her business and that the costs of the car provided to her husband, are paid by that business.
79 If I was able in this case to proceed to consider the requirements of ss(19)(b) and ss(38)(e) and (f), the evidence before this Court in that regard was totally unsuitable.
80 I therefore dismiss the application in regard to both alleged consequences in this matter and I dismiss the application.
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