Agnes Lawson v Victorian WorkCover Authority
[2016] VCC 977
•14 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-03824
| AGNES RENE LAWSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 July 2016 | |
DATE OF JUDGMENT: | 14 July 2016 | |
CASE MAY BE CITED AS: | Agnes Lawson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 977 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – claim for loss of earnings – suitable employment
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013, s5; Workmen’s Compensation Act 1925 (UK), s9(3)
Cases Cited: Richter v Driscoll & Ors [2016] VSCA 142; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Cardiff Corporation v Hall [1911] 1 KB 1009
Judgment: The plaintiff have leave to issue a proceeding claiming damages for pain and suffering and loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Mr R Ajzensztat | Maurice Blackburn |
| For the Defendant | Mr E Makowski | Thomson Geer |
HIS HONOUR:
1 This is an application which relies on part (a) of the definition of “serious injury” in ss(37) of s134AB of the Accident Compensation Act 1985 (“the Act”), that is permanent serious impairment or loss of a body function.
2 The body function relied upon is the right upper arm and shoulder.
3 The claim by the plaintiff instituted by Originating Motion dated 11 August 2015 seeks leave from the Court pursuant to ss(16)(b) of s134AB of the Act to commence a proceeding which will claim damages for pain and suffering and loss of earning capacity.
4 I was told at the outset that the defendant concedes that the plaintiff meets the statutory test in respect of pain and suffering consequences. The application proceeded before me therefore only as an application for leave to commence a proceeding for loss of earning capacity.[1]
[1]Transcript (“T”) 1
5 The concession made by the defendant is very appropriate on the evidence available. There is no disagreement amongst the various medical opinions in this case as to the nature and extent of the plaintiff’s injury or that her capacity for work is restricted to light duties and that this is likely to be permanent.
6 Ms J Forbes QC, with Mr R Ajzensztat of counsel, appeared on behalf of the plaintiff. Mr E Makowski of counsel appeared on behalf of the defendant.
7 The following evidence was adduced during the hearing:
· The plaintiff swore two affidavits and gave sworn evidence and was cross-examined. The plaintiff’s first affidavit was sworn on 20 April 2015.[2] The second affidavit was sworn on 23 June 2016.[3]
[2]Plaintiff’s Court Book (“PCB”) 10-16
[3]PCB 17-20
· The plaintiff tendered the following evidence – the Plaintiff’s Court Book (“PCB”) pages 20-71 and pages 101-103 inclusive (exhibit B).[4]
[4]T60
· The plaintiff also led evidence through the plaintiff’s solicitor, Mr Urtegan, of attempts to obtain an up-to-date medical report from the plaintiff’s general practitioner (exhibit A).[5] Nothing turns on this issue.
· The defendant tendered the following evidence – the Defendants’ Court Book (“DCB”) pages 1-41A inclusive and pages 167-178 inclusive, together with pages 1 to 14 of the clinical notes of the plaintiff’s general practitioner (exhibit 1).[6]
[5]T59
[6]T61
8 In giving consideration to this application, I have considered all of the evidence adduced by the respective parties.
9 The plaintiff was born in New Zealand in August 1962. She is a married woman. Her husband works as a labourer, sometimes construction worker. They have three adult children, one of whom lives with them, together with his own family, She has thirteen grandchildren.
10 The plaintiff worked in a number of jobs of various kinds in New Zealand, but mostly her work was either factory or processing work. She had a stint as a hospital room orderly before moving to Australia in 2004. In 2004, she had a short period of time as a picker and packer with a firm called Probiotic, but since that time she has worked at a place called Reverse Logistics (or TIC) Pty Ltd (“the employer”), as a picker and packer and, then as a scanner line operator. That has been her relevant employment history since moving to Australia twelve years ago.
11 The plaintiff first began to experience right shoulder pain around July 2007. The pain was experienced in the context where the conveyor belt on which she worked having broken down, she was required to manually push boxes along it. She had a right shoulder ultrasound on 21 July 2007. The report of that investigation demonstrated a tear of the supraspinatus tendon.[7] The plaintiff was then initially treated by medication, physiotherapy and some time off work. From that time, the shoulder injury has had a relapsing course with her going off work and returning at various times.
[7]PCB 42
12 After some time off work, the plaintiff returned to work following the initial injury but was forced to cease again in May of 2008. A second ultrasound was then undertaken around 15 May 2008.[8] It showed a full-thickness tear and queried the presence also of adhesive capsulitis. The plaintiff was referred by her general practitioner to Mr Michael Dooley, orthopaedic surgeon.[9]
[8]PCB 33
[9]PCB 33
13 Mr Dooley saw the plaintiff on 22 July 2008. It was his opinion the plaintiff’s work had aggravated underlying degenerative rotator cuff disease and that she had developed secondary adhesive capsulitis of the right shoulder.[10] Mr Dooley referred the plaintiff to a shoulder specialist, Mr Shane Barwood, and he has been the treating orthopaedic surgeon who has had the continuing care of the plaintiff.
[10]PCB 50-51
14 Mr Barwood saw the plaintiff in August 2008. He confirmed Dr Dooley’s diagnosis. He recommended hydrodilatation to treat the adhesive capsulitis first before treating the rotator cuff tear.[11]
[11]PCB 26
15 The plaintiff at this time had been working on light duties which Mr Barwood advised that she cease whilst she underwent two hydrodilatations of the right shoulder.[12]
[12]PCB 26
16 Once the adhesive capsulitis had been treated, Mr Barwood carried out surgery for the underlying rotator cuff tear. That was done at The Avenue private hospital on 28 January 2009.[13] Mr Barwood reviewed the plaintiff on 11 February 2009. He advised her at that time to use the shoulder “as comfortable” and, she could return to work in a restricted fashion and increase her hours and duties “as comfortable”.[14] The plaintiff returned to work on that basis.[15]
[13]PCB 28
[14]PCB 30
[15]PCB 12
17 After that first surgical procedure, the plaintiff again developed adhesive capsulitis which was again treated by a further two hydrodilatation procedures as recommended by Mr Barwood in April and May 2009, with some resolution.[16] The plaintiff gradually returned to work but on modified duties and Mr Barwood initially discharged her at the end of 2009.
[16]PCB 30-31
18 The plaintiff worked through 2010. However, there was a further recurrence of right shoulder pain in May of 2011. The plaintiff returned to the care of Mr Barwood and she underwent a second round or surgery on 13 July 2011.[17]
[17]PCB 13
19 Following the second round of surgery, there was post-operative physiotherapy and the plaintiff experienced some improvement. However, when Mr Barwood last saw the plaintiff in 2012, he felt she was left with a painful and weak shoulder but with a reasonable range of motion at that time.
20 In terms of the plaintiff’s capacity for employment, when he saw her last, Mr Barwood was of the opinion that the plaintiff would not be able to return to her normal occupation, but he felt that if she could find some alternate desk‑type duties that were not repetitive or, did not involve any significant manual handling work or lifting, that she would be able to perform that type of occupation.[18]
[18]PCB 31
21 The plaintiff returned to work in February 2012 to perform a new role called a warehouse operator. That work was a modified light duties role that the plaintiff continued to work in until her employment was terminated by the employer in December 2014.[19] During this period and, whilst working doing light duties, the plaintiff had further investigations because of continuing pain and restriction. These involved a third ultrasound and an MRI scan.[20]
[19]PCB 13
[20]PCB 44-45, 47-48
22 For approximately the last twelve months of her employment, the plaintiff worked on modified duties in accordance with a Return to Work Plan No 11 (“the RTWP”).[21] Her title was that of a “JB HiFi Online Dispatch Clerk”. The RTWP involved limitation on weights and limitations so that all of the work the plaintiff did was performed between shoulder and waist height and excluded the shelves above and below those levels and would also involve the need to ask for assistance as required. It also involved a modified technique in respect of the packing work which excluded any movement of the boxes themselves. Those light duties that the plaintiff was doing pursuant to the RTWP were withdrawn by the company in December of 2014 and her employment was formally terminated in March of 2015.[22]
[21]DCB 93-99
[22]Termination letter dated 3 March 2015 at DCB 135
23 The employer’s letter terminating the plaintiff’s employment makes it clear both parties accepted, at that time, that the plaintiff did not have the capacity to resume her pre-injury work. The employer terminated the plaintiff because it was unable to continue to provide work for her of a light duties kind as envisaged by the RTWP.
24 The plaintiff has not worked since. She has been seeking work, without success. In 2016, Nabenet has been providing her with assistance in job‑seeking and has been applying for jobs on her behalf. In March of this year, the plaintiff was approved to undergo a computer course to upgrade her computer skills. Although funding for the course was approved in March of this year, no computer retraining has occurred because an appropriate course has not been identified by the relevant agent to date, so the plaintiff remains unemployed.
25 The central issue to be decided by me on this application is whether or not the plaintiff has discharged the onus that she bears of proving that because of her right shoulder injury and consequent permanent impairment, her post-injury working capacity results in her post-injury earnings being reduced by forty per cent or more of her pre-injury earnings.[23]
[23]Section 134AB(38)(e) of the Act
26 Subsection (38)(c) of s134AB of the Act provides that the impairment identified 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”.
27 Subsection (38)(f) and (g) of s134AB of the Act provide the formula to be applied by which a claim for loss of earning capacity is to be determined. For the purposes of those sub-sections “suitable employment” is defined to mean “employment in work for which the worker is currently suited” having regard to a number of stipulated factors and, “whether the work or the employment is available; or the work or the employment is of a type or nature that is generally available in the employment market”.
28 Subsection (38)(j) of s134AB of the Act provides that the assessment of serious injury is to be made at the time of the hearing of the application.
29 In my opinion, the plaintiff has discharged this onus and her application for leave to commence a proceeding that claims damages for pain and suffering and loss of earning capacity must succeed. The evidence adduced from both of the parties shows the plaintiff is only able to work on light duties. She can only perform work of the kind envisaged by the RTWP. The evidence also shows that the plaintiff will be impaired in this way on a permanent basis. She has been so impaired for the past nine years.
30 The plaintiff had been asked in cross-examination about her capacity for work around the time that she was terminated on 14 December 2014. It was put to her that she had a permanent capacity to work doing light or modified duties of the kind contemplated by the RTWP. The plaintiff gave this evidence in re-examination:
Q:“You were asked a question about whether you could do now what you were doing back in December 2014. You heard that question just then?---
A:Yes.
Q:We’ve got your doctor’s notes, because this isn’t a memory test and if Your Honour’s got the bundle there, it’s p.13 as they’re paginated by the practice, the entry of December 24 2014 and to put that in context, this is immediately before your duties were withdrawn. There’s a note saying you attended and he’s recorded, ‘Has had increased shoulder pain from working long time on a particular job yesterday, and now having right shoulder pain’. Do you remember going and seeing your doctor? ---
A:Yes.
Q: At about the time you last worked?---
A: Yes.
Q:Do you remember having difficulties as the doctor’s recorded them there?---
A:Yes.
Q:Can you tell His Honour what you remember about the circumstances of you going to the doctor in December 2014 and then your duties being withdrawn?---
A:I had been working in the dispatch area, helping another colleague - or workmate receive stuff - stock, and my hours were meant to be - to work in that area for an hour or doing that task for an hour and then rotate. I was left down there for five hours doing the same sort of task. By the end of the day I had pain in my shoulder and I went and saw the HR people, and they weren’t happy and I wasn’t happy so I went to my doctor.
Q:When you say, ‘They weren’t happy,’ what were they suggesting should happen?---
A:That I had pain in my shoulder and I was going home.
Q:How did they react to that?---
A:Well, they weren’t happy and they sent me home.
Q: Did you return to work after that day?---
A: No.”[24]
[24]T50-51
31 The plaintiff then went on to explain how her work tasks differed from others doing similar work but who were not on light duties. In short, the tasks that the plaintiff was not able to perform because of her limited capacity were performed by others within her work group who did not have restricted capacity.[25] The plaintiff could only perform her work by calling in other workers to perform the tasks she was required to perform but in respect of which she did not have the capacity to carry out. In other words, without the back up of fellow employees the plaintiff would not have a job at all. Another way of putting it is, that the plaintiff’s employment on a light work basis was conditional upon her having other employees with her to carry out the tasks she was unable to perform. Whether or not the plaintiff could find work would be contingent on an employer being prepared to employ her on this condition.
[25]T51-52
32 Although it is to the employer’s credit that it maintained the plaintiff’s employment on light duties for so long, the overwhelming evidence in this case shows the plaintiff could only work on light duties for an employer who was prepared to accept that to be the case and put up with it. In my view, the plaintiff would find it near impossible to find another employer who would be prepared to employ her in such a limited capacity and, on the conditions that she would require.
33 Mr Simm, orthopaedic surgeon, has provided a medico‑legal opinion on behalf of the plaintiff. He has provided opinion that the plaintiff has a persistent organically-based right shoulder pain with associated loss of function due to the surgically treated supraspinatus pathology.[26] His opinion on the issue of the plaintiff’s capacity for work is that the plaintiff is permanently incapacitated for work that requires repetitive and strenuous use of her right hand away from her body or, at above chest height. He noted the plaintiff has no occupational qualifications or work experience in non‑physical forms of employment and that she has a very limited ability to operate a computer. On the basis of her current clinical presentation, Mr Simm thought the plaintiff appears to have no capacity for work for which she is suitably trained and experienced.[27]
[26]PCB 57
[27]PCB 57-58
34 Dr Robyn Horsley, an occupational physician, has expressed a similar opinion.[28] She said, inter alia:
“Taking account of Ms Lawson’s general presentation, her two years out of the work force, her right shoulder disability, and her manual working experience, I believe that her prognosis for return to work in any capacity, at best is guarded. On the basis of her right shoulder injury alone, I believe that there is potential for return to work on a part time basis, in a role that complies with the restrictions outlined above.”[29]
[28]PCB 62
[29]PCB 71
35 The defendant has had the plaintiff examined for medico-legal purposes by Dr Malcom Brown, who is also an occupational physician. He has examined her for this purpose on two occasions on 10 June 2015 and 16 February 2016 and he has provided three reports.[30]
[30]DCB 33-41A inclusive
36 In February 2016, Dr Brown was asked to give an opinion as to the plaintiff’s capacity for work in the context of recommendations provided in a report from Nabenet which identified different jobs said in the report to be within the plaintiff’s capacity. In answering a question asked of him, namely, what are suitable employment options of the plaintiff, he said:
“Customer service work, clerical work and some types of retail work are suitable for her. Work as a cashier in busy supermarkets or gaming venues, and packing or process work, is unsuitable, due to the repetitive manual nature of the work tasks. The other option of receptionist would be suitable but data entry work would not.”[31]
[31]DCB 41
37 In a subsequent report, Dr Brown made clear his opinion. Referring to his earlier report, he said he assessed the plaintiff as having capacity for “appropriate work, not involving heavy lifting, work above shoulder level or repetitive arm movement” and “capacity for clerical, customer service and warehouse work provided there was no lifting or repetitive work”.[32]
[32]DCB 41A
38 The defendant has obtained a number of vocational assessment reports from Nabenet. The content of the reports is largely repetitive. The last report[33] identifies what Nabenet says are suitable employment options for the plaintiff in order of priority at page 2 as follows:[34]
[33]DCB 119-134
[34]DCB 120
“1.Customer Service Representative
2.Cashier / Console Operator
3.Retail Assistant
4.Warehouse / Despatch Clerk
5.Packer / Process Worker (light duties).”
39 It can be seen that there is little or no divergence of medical opinion in this case. The plaintiff has little training and few skills. Having regard to her age and work experience and, the on-going permanent nature of her injured right shoulder and consequent impairment, the range of employment options available to her is very limited. Her capacity to work is subject to an employer being found that is prepared to employ her on strict conditions which the employer is prepared to abide.
40 The parties agreed between them that the plaintiff’s earnings without injury would presently be $43,194.00 per annum. Sixty per cent of that figure is $25,916.00, amounting to $498.00 per week.
41 It is the plaintiff’s case, which I accept, that having regard to her permanent injury to her right shoulder, a consequence for her is that she is permanently totally unemployable because, having regard to her skills and training, she can only seek employment in light duties of the kind she was performing at the time of her termination. Because the reality is no such employment can be found, she claims total loss of earnings.
42 In his submissions I understood Mr Makowski to accept that the plaintiff had established that she only had a capacity for light work or restricted duties. He argued the plaintiff must demonstrate the limits of her capacity in terms of the limited number of hours she can work. He argued the plaintiff has not discharged that burden. He relied upon a report from Mr Battlay, who last saw the plaintiff for the purposes of the defendant in November 2014. It was Mr Battlay’s opinion that the plaintiff could work full time but that her work capacity would be permanently restricted.[35] In a latter report prepared one week before the plaintiff’s employment was terminated by the employer, Mr Battlay was of the opinion that the plaintiff’s partial incapacity “will never cease”.[36]
[35]DCB 25
[36]DCB 28
43 Mr Makowski’s submissions may be summarised by the following from the transcript:
“It’s essentially the defendant’s case, Your Honour, that the plaintiff - Your Honour ought accept the plaintiff does have a real full‑time earning capacity for a modified packing, picking, dispatch clerk-type job. I will take Your Honour to the evidence as to why that ought be accepted.[37]
In my submission, the weight of the evidence in this case is that the plaintiff does have a real capacity for work. If Your Honour accepts that there is a capacity for modified duties then, in my submission, it was incumbent upon the plaintiff on the evidence in this case to adduce at what level of hours per day per week is the limit of the plaintiff’s capacity on the material in this case. The plaintiff is unable to do that task, once Your Honour has a look at all of the evidence.
There is simply no evidence about hours of work. It’s the defendant’s case that it’s full‑time in a modified role akin to what the plaintiff was doing at the time. If it has changed, bearing in mind - and I’ll come to the GP - then the plaintiff had to do more in terms of producing the evidence to show that the 40 per cent test has been satisfied because if you do a particular calculation at a particular hours per week she’d overcome the threshold. We submit Your Honour shouldn’t be satisfied this is a total loss case; that is, total destruction of earning capacity.”[38]
[37]T63
[38]T63-64
44 On the evidence, I find that in approximately July 2007, during the course of her employment by the defendant, the plaintiff suffered an injury to her right shoulder in the form of a tear of the rotator cuff tendon, together with the development of adhesive capsulitis. As a result of this injury, there have been pain and suffering consequences for her, such that her injury is a “serious injury” within the meaning of the Act.
45 I accept the evidence of the plaintiff as to her ongoing difficulties and incapacity to get back into the workforce. I accept her evidence, both viva voce and in her affidavits, of her attempts to find suitable work. I accept the plaintiff as a witness of truth and note that there has been no attack mounted against her credit.
46 As a result of her injury, the plaintiff has suffered the consequence, that she can only perform work for which she is suitably qualified, in a restricted or limited capacity. The preponderance of the medical evidence adduced by both parties is to this effect. I am of the opinion, that because of her injury, the plaintiff has suffered an ongoing permanent impairment, being a loss of earning capacity which, when compared with other cases in the range of possible impairments, can fairly be described as “more than significant or marked, and as being at least very considerable”.[39]
[39]Section 134AB(38)(c) of the Act
47 Ms Forbes submitted that the plaintiff’s employment on light duties as an online despatch clerk for JB HiFi was not “a job in the real world” because there are no jobs available to her that fit the description of the kind of limited work she now has capacity for. Relying on Richter v Driscoll & Ors,[40] Ms Forbes submitted the evidence as to the plaintiff’s limited capacity for suitable employment showed that she had proved her case. No employer would give her employment restricted, as it is, to light duties.
[40][2016] VSCA 142 at paragraphs [72] – [97]
48 In Richter,[41] the Victorian Court of Appeal discussed the meaning of the expressions “no current work capacity” and “suitable employment” both of which expressions are used in the Act but are defined in s5 of the Workplace Injury Rehabilitation and Compensation Act 2013. By operation of s5(2) of the Act, those definitions are applicable where used in the Act.
[41]Supra
49 The Court in Richter made it clear that capacity for work means capacity for work in employment in a meaningful way so as to obliterate the need for weekly payments of compensation.[42] At paragraph 76, the Court went on to deal with suitable employment, where it said:
“Third, we agree with the applicant’s submission that return to work in employment, so understood, requires more than that a physical capacity to engage in a task or tasks. That is because there is more to an ability to work in employment—‘ability’ being converse of ‘inability’, which appears in the definitions of ‘no current work capacity’ and ‘current work capacity’—than the ability to perform a task that happens to be required in that employment. The definition of ‘suitable employment’,, which falls for consideration in the context of ‘no current work capacity’, plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise, paragraphs (a)(ii), (iii) and (iv) would have no work to do.”
(my emphasis).
[42]See paragraphs [74] and [75]
50 The Court made it clear that a worker’s ability or otherwise to return to pre-injury employment, requires a consideration of matters over and above just a physical capacity to carry out the task.[43] The Court went on to say that Barwon Spinners & Ors v Podolak[44] did not decide that the definition of “suitable employment” focuses solely upon a worker’s physical capacity to undertake a task and that the definition of “suitable employment” is directed to ability to undertake work in employment.[45]
[43]Richter (supra) [77]
[44](2005) 14 VR 622
[45]Richter (supra) at paragraphs [78] and [81]
51 In Richter,[46] after a number of observations about the definitions of “no current work capacity” and “suitable employment” in the Act, made a number of observations about the latter applicable here. At paragraph 92 of the judgment, Justices of Appeal Ashley and Kaye said:
[46]Supra
“[92]These observations may be made. The definitions of ‘current work capacity’ and ‘no current work capacity’ were expressed in language almost identical with that in the repealed definitions of ‘total’ and ‘partial’ incapacity for work. So the definitions of ‘current work capacity’ and ‘no current work capacity’ trace from, and in our view may be taken to be informed by, the fact that physical capacity alone was never considered the be all and end all of determination of incapacity for work. In our view, the plain meaning of the present definitions of ‘no current work capacity’ and ‘suitable employment’ is consistent with long-established jurisprudence respecting closely-related concepts.[47] But, to be crystal clear, our opinion as to the meaning of the definitions is one based on reading their text.
[47]This consistency could only be pressed so far. The Act has long been notorious for its obscure language and departure from long-established jurisprudence. See, for instance, Wellbridge v Jackson [1990] VR 689 at 694, lines 24–36 and at 696, lines 35–45
[93]About ‘suitable employment’, this may be said. The term was used, in connection with calculating compensation for partial incapacity, from earliest times.[48] A large jurisprudence developed.[49] It is plain that suitability of work was never confined to physical capacity to perform a task required by a particular job. What we take to be the plain meaning of the definition is generally consistent with that jurisprudence.
[48]For instance, s9(3) of the Workmen’s Compensation Act 1925 (UK) referred to “the average weekly amount which [the workman] is earning or is able to earn in some suitable employment or business after the accident”
[49]Conveniently summarised in Willis’ Workmen’s Compensation (37th edition) 1945, 306–316
[94]Eleventh, the definitions of ‘no current work capacity’ and ‘suitable employment’, as we construe those definitions, together with the inclusion in the definition of ‘medical question’ of paragraphs (aba), (abaa), (abb) and (abc), will require medical panels to consider matters travelling beyond bare medical expertise. But that is not a reason for construing the definitions otherwise than their plain words require. Not that it is decisive, questions of ‘no current work capacity’ and ‘suitable employment’ are not the exclusive preserve of medical panels.
[95]Twelfth, the construction which we place on the definitions under consideration can be expressed in either of two ways. One is to say that whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce. Viewing the matter in that way, these observations of Buckley LJ in Cardiff Corporation v Hall, are in point:[50]
[50][1911] 1 KB 1009 at 1027
‘The two following propositions are of course distinct: First, that owing to incapacity for work arising from the accident the condition of the workman is such that his labour is not saleable or is saleable only at a reduced figure, and, secondly, that his labour is saleable or is saleable at the same figure as before the accident but that he has failed to find a purchaser. The former and not the latter is the relevant proposition in the question of compensation. …
It is difficult, no doubt, to draw the line. Physical incapacity is not necessarily alone to be considered. In some employments personal disfigurement may preclude employment when physical capacity is just as good as before. In such case personal disfigurement is an element to be taken into consideration. The circumstances under which labour can command employment in the market being all taken into consideration, the question is whether the accident has produced in the workman some incapacity for work personal to himself which prevents his obtaining employment.’
[96]The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in the same case, where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.[51]
[97]Neither of those ways of looking at the matter is at odds with the settled law that an employer does not guarantee the state of the labour market. Nor do they mean that inability to work in employment covers the situation in which – addressing the reality of what may occur – an employer will not take on a worker only because the latter has been off-work and in receipt of compensation payments. Rather, they focus upon an assessment of the inhibitions which exist upon the worker’s ability to work in employment. ‘Employment’ is a relationship in which a prospective employee must have something – a capacity to work in employment – to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker, as outlined in these reasons, lead the employer to conclude that the worker has nothing to sell.”
[51](ibid) at 1020
52 Applying the principles in Richter to this case, Ms Forbes submitted that because the plaintiff is so limited in the kind of work she can do, in the employment market place she has nothing to sell and that there is no employer that would employ her. I accept that argument.
53 Having accepted as I have that the plaintiff’s injury to her right shoulder is permanent and has serious injury consequences both for pain and suffering and loss of earning capacity, I find the plaintiff has established on the evidence that because of her injury, she has no capacity for suitable employment and she suffers from total loss of earnings capacity.
54 The plaintiff will have leave to commence a proceeding for damages for pain and suffering and loss of earning capacity.
55 I will hear the parties on the question of costs.
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