Bennetts v Your Beauty Laser and Spa Pty Ltd
[2018] VCC 1240
•13 June 2018
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUR INJURY LIST |
Case No. CI-16-05717
| LAURA LYNICE BENNETTS | Plaintiff |
| v | |
| YOUR BEAUTY LASER & SPA PTY LTD (ACN 150 692 578) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKS | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 7 and 13 June 2018 | |
DATE OF JUDGMENT: | 13 June 2018 | |
CASE MAY BE CITED AS: | Bennetts v Your Beauty Laser & Spa Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1240 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right knee – pain and suffering and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR; Vulcan Steel Pty Ltd v Fullerton [2014] VSCA 18; State of New South Wales v Moss [2000] 54 NSWLR 536; Richter v Driscoll (2016) 51 VR 95
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr A Clements QC with Ms F Ryan | Thomson Geer |
HIS HONOUR:
1 In this matter, the plaintiff in the action seeks leave to commence common law proceedings against her former employer, Your Beauty Laser & Spa Pty Ltd, pursuant to s134AB(16B) of the Accident Compensation Act 1985 (“the Act”) in respect of both pain and suffering and loss of earning capacity damages.
2 The application refers to an injury to the plaintiff’s right knee, which she sustained in the course of her employment on 12 November 2013. The injury is accepted as being a permanent injury to the right knee, caused by the work-related injury.
Background
3 The plaintiff was born in May 1994 and at the time of the injury, was aged nineteen years. In terms of her education, she completed Year 12 at Baimbridge College in Hamilton, and attained an ATAR score of approximately 38.
4 Thereafter, she did some part-time work at Bakers Delight and Kentucky Fried Chicken, prior to commencing employment with the defendant on 24 November 2012 as a trainee beauty therapist. Her hours of employment were between 38 and 42 hours per week, and she was earning approximately $13.50 per hour.
5 The plaintiff swore that her traineeship was to last until approximately May of 2014, but unfortunately was interrupted by the occurrence of the injury on 12 November 2013. On that day, she had stepped on a floor board which was not securely fastened to the girders, and suffered a twisting and falling injury to her right knee.
6 She swore in her first affidavit, sworn 16 May 2016, that had she been able to complete the traineeship, she would have been able to earn “at least $720 gross per week”.[1]
[1]Exhibit A, paragraph 6
Paragraph 3, “Identifying the Injury”
7 The plaintiff was referred by her general practitioner to orthopaedic surgeon, Mr Andrew Byrne, who reported to the plaintiff’s solicitors first on 3 June 2015.[2]
[2]Exhibit C
8 Mr Byrne took a relevant history and noted that on 2 December 2013 on examination, the knee could not fully extend and there was quadriceps wasting of a significant degree, with a small effusion noted. He informed that plaintiff that she had evidence of articular damage to the patella with a probable medial meniscal tear.
9 On 13 February 2014, Mr Byrne undertook surgery at the Ballarat Day Procedure Centre. At surgery, a grade 3 articular damage to the medial facet of the patella was identified, requiring an extensive chondroplasty.[3]
[3]Plaintiff’s Court Book (“PCB”) 53
10 Further, loose articular debris was noted and extracted. He also noted a grade 1 articular damage to the trochlear was confirmed at operation.[4]
[4]PCB 53
11 On review on 4 March 2014, movement had improved in the knee and the plaintiff was taking Endone for pain control as well as Panadeine Forte. Further physiotherapy was recommended.
12 When reviewed again on 3 April 2014, Mr Byrne noted:
“… She was struggling with her right knee. She was taking Panadol osteo for pain control. She was at work on light duties. … .”[5]
[5]PCB 53
13 Next, Mr Byrne reviewed her on 29 May 2014, and he injected the knee with Depo-Medrol and a local anaesthetic.
14 When reviewed again on 18 August 2014, the plaintiff related that the steroid injection did help her pain and she was ready to return back to work on this occasion.
15 Mr Byrne advised that further injections may be required in the future, but she should avoid “kneeling or squatting if at all possible”.[6]
[6]PCB 54
16 When reviewed again on 12 May 2015, the plaintiff said that she had some increased pain in her right knee over the last two months or so. She said that the arthroscopy in February 2014 had helped a lot. However, at this time, grade 3 articular damage to the patella was noted, and Mr Byrne recommended further arthroscopy of the knee with a view to “debriding the knee joint and assessing the progression of the articular damage to the patella”.[7]
[7]PCB 54
17 At this particular stage, Mr Byrne was of the view that:
“… Analgesics, anti inflammatory medication and intra articular injections of cortisone will be required potentially in the future. Arthroscopic debridements of the knee joint may also be warranted if symptoms of locking develop or there has been a significant interval between arthroscopies. At her age at 21 all attempts should be made to try and delay any major intervention for as long as practical. There is a possibility that a chondrocyte transplant may be appropriate for her in the future but there is damage to not only the patella but early changes to the trochlea and this usually means a chondrocyte transplant is not likely to be successful.”[8]
[8]PCB 54-55
18 Mr Byrne reported again on 1 March 2018 and noted at that stage, that the plaintiff had undergone further surgery on 21 May 2015. He noted:
“At surgery, a right knee arthroscopy was performed where grade II articular damage of the medial aspect of the patella was noted requiring a moderate chondroplasty. Synovitis was also evident in the patellofemoral joint and a synovectomy was performed. … .”[9]
[9]PCB 58
19 When reviewed on 31 July 2015, Mr Byrne noted:
“… The situation was unchanged. She still had some symptoms in her knee. She was however doing well. She was taking no analgesics on this occasion.”[10]
[10]PCB 58
20 However, when reviewed again on 4 August 2017, he took a history that:
“… Her right knee had been an issue since Christmas time. She had pain in the front of the knee and it felt tight. She felt the knee was crunching at times. It was catching and grabbing at times as well. She did feel it locking up at times. The knee was giving way and had been for the last few months.
Examination of the right knee on the 4th August 2017 confirmed valgus alignment. Examination of the knee otherwise confirmed quadriceps wasting of a mild degree only, with a small effusion. There was significant localised medial joint line tenderness noted. Patellofemoral joint was irritable as well.”[11]
[11]PCB 58-59
21 Mr Byrne’s advice to the plaintiff at that stage was that:
“… an arthroscopy with a view to a chondroplasty and a possible partial synovectomy maybe the next step for her as it had been very affective (sic) for her left knee. … .”
22 He did arrange for x-rays of the knee which were performed on 7 August 2017.
23 Nonetheless, the plaintiff underwent surgery to her right knee on 7 November 2017, which was of the third occasion. Mr Byrne noted:
“… Grade II articular damage to the patella was identified requiring an extensive chondroplasty. Loose bodies were extracted from the knee joint. … .”[12]
[12]PCB 59
24 When reviewed again on 22 November 2017, the plaintiff was taking Panadol for pain control, and stated that the pain is a lot better. Mr Byrne’s advice at that stage was that –
“… she would have ongoing difficulties with regard to her knee and that she needed to avoid kneeling, squatting and lunging if at all possible. ….”[13]
[13]PCB 59
25 Mr Byrne’s opinion at that stage was that:
“… She has significant patella articular damage and ultimately this matter will progress to a point where further surgery may be required. Further surgery includes the possibility of arthroscopic intervention for removing loose bodies and debriding the joint, a partial total knee replacement involving the patellofemoral region or more likely a total knee replacement at a later date should symptoms justify it.”[14]
[14]PCB 59
26 Since this operation, both the plaintiff and the defendant have had the plaintiff examined for medico-legal purposes by orthopaedic surgeons. The plaintiff has been examined by orthopaedic surgeon, Mr Russell Miller, who reported on 23 April 2018.[15]
[15]Exhibit G, PCB 92
27 Mr Miller took a relevant history and noted as follows, with respect to the right knee:
“This continues to be her major problems (sic) with ache, discomfort and pain in the knee. Her symptoms are fluctuating and she feels there is a pattern towards deterioration. She stated she underwent further arthroscopy in November 2017, but this unfortunately has not led to sustained improvement in the knee. She has difficulty with prolonged standing and walking and difficulty with kneeling and squatting.”[16]
[16]PCB 94
28 Mr Miller further noted that the plaintiff had gained weight since the accident and that she was now fifteen weeks’ pregnant with her second child:
“… She is currently using Panadeine and Panadol. She does not use anti-inflammatory medications on the advice of her surgeon.”[17]
[17]PCB 94
29 On examination, Mr Miller noted grade 1 quadriceps wasting measuring at two centimetres. There was patellofemoral joint crepitus and pain on patella compression. The knee was otherwise stable. He noted that the plaintiff could not “kneel, squat or hop on the right leg”.[18]
[18]PCB 95
30 Mr Miller noted that in the future, the plaintiff planned to return to work as a beauty technician on a part-time basis. At this stage, Mr Miller had not seen Mr Byrne’s latest report, but stated:
“The client reports a pattern of symptom deterioration and disease progression is likely. On the information currently available to me, I believe the medium term prognosis for the knee is fair, but the long term prognosis is poor.”[19]
[19]PCB 96
31 As to the future, Mr Miller noted:
“The client has undergone a repeat arthroscopy of the knee. I believe there is a likelihood that she will require more major intervention such as a joint replacement. I remain of the view that this is likely to be in a 15-20 year time frame. … .”[20]
[20]PCB 97
32 In terms of capacity for work, Mr Miller noted:
“The client will have ongoing restrictions with her right knee. She will have difficulty with work that involves large amounts of prolonged standing, prolonged walking, twisting, turning, kneeling and squatting.
She would not be able to return to work as a beauty therapist unless these restrictions could be put in place on a permanent basis.”[21]
[21]PCB 97
33 Mr Miller reported again on 24 May 2018, once he was in receipt of the results of Mr Byrne’s findings at the third operation. Mr Miller reported on that operation note as follows:
“… I note that included his operative findings for the right knee arthroscopy performed on 07/11/2017, which revealed grade II articular cartilage damage to the patella for which he performed extensive chondroplasty and the loose bodies were extricated from the joint. … .”[22]
[22]PCB 99
34 Under the heading “Further Comment”, he noted:
“… The client is at risk of medium and long-term deterioration. I remain of the view the medium term prognosis for the knee is fair, but the long-term prognosis is poor.”[23]
[23]PCB 100
35 Further, he reported:
“… There is a likelihood that the client will ultimately come to a requirement for further surgery in the form of repeat arthroscopy, a partial knee replacement or a total knee replacement with patellar resurfacing. Given the arthroscopic findings, I am now of the view that this is likely to be an approximately a 20-25 year time frame.”[24]
[24]PCB 100
36 Thereafter, in terms of the plaintiff’s work capacity, Mr Miller repeated that the plaintiff:
“… could not undertake work that involves prolonged standing, prolonged walking, twisting, turning, kneeling and squatting. She could return to work as a beauty therapist provided these restrictions were in place on a permanent basis. Assuming those restrictions were in place on a permanent basis then I believe the client would be capable of returning to normal working hours.”
37 The defendant had the plaintiff examined by orthopaedic surgeon, Mr Bruce Love, who first reported on 25 October 2017. After taking the relevant history, Mr Love noted:
“This woman has a principal diagnosis of patellofemoral changes which can reasonably be assumed to have been induced by the incident of 12.11.2013, and which are causing ongoing symptoms.”[25]
[25]Exhibit 1, Defendant’s Court Book (“DCB”) 24
38 As this was pre the third operation, Mr Love stated:
“It is not unreasonable for one further arthroscopy to be performed, but I think further arthroscopies have a low probability of being helpful in her circumstances.
A full range of conservative treatments needs to be considered, both of an operative and non-operative nature with regard to ongoing management.”[26]
[26]Exhibit 1, DCB 24
39 In terms of identifying the injury, Mr Love stated that the plaintiff suffered from–
“posttraumatic chondromalacia of the patella and the condition appears to be non-responsive to both conservative and operative treatment.”[27]
[27]DCB 25
40 In terms of prognosis, Mr Love considered that the plaintiff would be likely to suffer current symptoms into the foreseeable future, and in the long term, other conservative measures should be encouraged along with operative treatment, and it will be dependent upon her progress as to whether other forms of surgery will be considered, but the concept of a knee joint replacement is not something that is a probable consideration in the near future.[28]
[28]DCB 25
41 When he reported again on 6 March 2018, Mr Love commented on the recent surgery performed on 7 November 2007. The history taken on this occasion was that the plaintiff believed that her knee function had improved as a result of diminished pain, but she continued to suffer from symptoms of instability and giving way.
42 The plaintiff showed Mr Love a photograph on her mobile phone of a bruise of the right knee when her knee gave way when she walked up steps at her home, falling onto the right knee. She also gave a history that she continued to suffer ongoing episodes of swelling in the right knee with locking.[29]
[29]DCB 30
43 A further history included the following:
“Her right knee condition is such that ordinary daily activities such as mopping, sweeping, washing and gardening are all done by her husband who works as a plumber.
…
With regard to returning to work as a beauty therapist she believes that this is unlikely in that there are no opportunities to sit whilst doing that work and sometimes there is a need to squat. She is of opinion that she would need to have periods where she could sit or squat during such days.”[30]
[30]DCB 31
44 On examination, he noted:
“… There is generalised medial and lateral tenderness but there is no instability. The knee is stable both medial, laterally and anteroposteriorly. There is some patellofemoral irritability and crepitus present.”[31]
[31]DCB 31
45 His assessment was described as follows:
“Ms Bennetts has a significant degree of dysfunction of the right knee which has led to consequences of her being unable to perform usual daily household tasks, engage in her prior international hockey career or to engage in her chosen career as a beauty therapist.
Treatment options at the present time are very limited. The recent arthroscopy has brought about some improvement but disability remains.”[32]
[32]DCB 31
46 In response to specific questions, Mr Love noted:
“Ms Bennetts has a severe internal derangement of her right knee with symptoms of pain and instability being the main features from a clinical point of view.
There has been some recent lessening of pain as a result of the recent arthroscopic procedure but the constant giving way is concerning.
…
The short time prognosis is such that there is unlikely to be any obvious change in the immediate future.”
47 In terms of her capacity for suitable employment, Mr Love noted:
“She has no capacity for returning to her work as a beauty therapist at the present time. As she explained today, beauty therapy requires her to stand throughout the day or kneel, neither of which she can do.
I have concluded that were she able to find employment that was entirely sedentary this would be within her capacity at the present time.
…
As things now stand, this incapacity can reasonably be considered permanent as she has had definitive treatment by way of arthroscopic debridement.”[33]
[33]DCB 33
48 In terms of considering suitable jobs, Mr Love considered the 130-week vocational assessment report dated 10 December 2015[34] which referred to occupations such as:
[34]Exhibit 2, DCB 36
(i) Beauty therapist;
(ii) Receptionist;
(iii) Sales assistant – clothing or cosmetics or jewellery, watches and clocks;
(iv) General clerk.
49 As to these occupations, Mr Love reported:
“The occupations that have been listed would only be within her capacity if there was an absence of a requirement to stand for long periods, walk distances or work in a kneeling or squatting position.”[35]
[35]DCB 33
50 Finally, he noted that the plaintiff said that:
“… when she was anticipating be able to return to work she had arranged childcare but her recent episodes of instability have led her to cease return to work plans.”[36]
[36]DCB 34
51 At the hearing, it was conceded by Senior Counsel for the defendant that the plaintiff had suffered a “serious injury” within the meaning of s134AB(37A) of the Act, with respect to pain and suffering consequences.
52 Paragraph (a) provides that a “serious injury” means “a permanent serious impairment or loss of a body function”. As a consequence of that concession, the defendant admits that the impairment to the plaintiff’s right knee, when judged by comparison with other cases in the range of possible impairments or losses, could fairly be described as “at least very considerable,” and “more than significant or marked”.[37]
[37]See s134AB(3) of the Act
53 Further, the concession includes that the consequences of the injury are serious to the plaintiff, and the consequences will relate to the pain and suffering such that leave should be granted under that particular head.[38]
[38]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
54 In his opening, senior defence counsel indicated the basic issue was whether the plaintiff was able to prove that after the date of hearing, she would continue permanently to have a loss of earning capacity, which would be productive of financial loss at 40 per cent or more.
55 It was conceded that the plaintiff was under 26 years of age at the time of suffering her injury, and as such, the formula in s134AB(38F) of the Act does not apply. This means that the Court –
“… may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common-law position prevails.”[39]
[39]See the Accident Compensation (Common Law and Benefits) Bill Second Reading Speech, 23 May 2000, Hon M M Gould
56 In addition, I was referred by Senior Counsel for the defendant to the Court of Appeal decision of Vulcan Steel Pty Ltd v Fullerton,[40] where it was stated by the majority:
“The issue before the judge was whether retraining might put the respondent in a position to be able to do some form of light work (involving a loss of earning capacity of less than 40%). … .”
[40][2014] VSCA 18 at paragraph 33
57 I accept this submission.
58 In those circumstances, it follows that the issue between the parties includes the following:
(a) that the three years before and three years post injury period is irrelevant;
(b) the issue of suitable employment is not relevant save for possibly by reference to s134AB(38G) of the Act.
Credit
59 It was submitted by Senior Counsel for the plaintiff that I should regard his client as a person of credit and this was not demurred from by Senior Counsel for the defendant. I find that the plaintiff at all times was attempting to be honest and straightforward in giving her evidence.
The Plaintiff’s evidence
60 In her first affidavit sworn 16 May 2016, the plaintiff related that after the first surgery, having been performed on 3 February 2014, she was thereafter certified fit for modified duties, four hours a day, three days a week, by Mr Byrne from 20 March 2014 onwards. However, she swore that although she was performing these duties, her employment was terminated at the end of June 2014 when her employer put her off work because she was not capable of performing any duties. The plaintiff was not challenged on this aspect.
61 The plaintiff further swore that her employment was formally terminated on 11 October 2014. Thereafter, she continued to work for herself, opening her own business known as “Face the Beauty” in November 2014. Although she was not fully qualified, she provided services including waxing, manicures and spray tanning. However, she related that her symptoms deteriorated and on 21 May 2015, she underwent another operation performed by Mr Byrne. She stated that whilst the surgery helped a bit, her symptoms slowly returned. However, she managed to get back to work on 2 June 2015 and was not doing any hands-on work other than “a bit of waxing of eyebrows. Otherwise, I was just sitting at the front at reception to keep the place open.”[41]
[41]Exhibit A, affidavit dated 16 May 2016, PCB 9, paragraph 33
62 As at the date of her first affidavit, being 16 May 2016, she stated:
“Currently, I am working up to 5 days a week, Monday to Friday, for a maximum of 5 hours per day which is my absolute limit. My hours vary each day, depending on the number of clients I have booked in and how my knee is coping. The duties I perform include spray tanning, waxing, manicures and pedicures. I have difficulty performing massage and for this reason my mum does this for me in addition to some of the book work. I find sitting or standing for prolonged periods increases the pain in my knee. I was paying rent at the shop of about $250 per week and was not able to keep this up. At one stage I was three weeks behind in the rent and barely breaking even after I paid off suppliers. … .”[42]
[42]Exhibit A, PCB 10, paragraph 34
Consequences
63 At the date of her first affidavit, the plaintiff swore:
“I continue to suffer from constant and ongoing pain in my right knee. I am restricted in terms of bending in that I cannot bend my right knee fully. The pain affects my ability to sleep most nights. I simply cannot get comfortable in bed, even if I try putting a pillow between my legs. My physical relationship with my partner has also been significantly compromised.”[43]
[43]Exhibit A, PCB 10, paragraph 36
64 Further, she swore:
“I rely on Panadeine Forte to try and deal with the pain but this causes constipation and therefore I try and limit the amount I take. I was on Endone at one stage but I stopped taking same when I became pregnant. For similar reasons I stopped taking Nurofen Plus when I became pregnant. … .”[44]
[44]Exhibit A, PCB 10, paragraph 39
65 Further, she swore:
“I also find that driving for prolonged periods of time increases the pain in my right knee. Generally speaking, 20 minutes is about my limit. Otherwise, my partner Garith or my mother drive me. For example, if I need to go to Melbourne either one or other of them will drive me.”[45]
[45]Exhibit A, PCB 11, paragraph 46
66 Further, she swore:
“I also used to enjoy hiking in the past. I would regularly go hiking to places such as Halls Gap and the Grampians. We would hike up to the Venus Spas, a distance of 5km. I was able to hike carrying a backpack with water and food. Since the knee injury, I tried walking up Mount William in the Grampians. I managed to walk about 500m but could not continue the rest of the way due to increasing pain. There is no way I will be able to hike any distance now. I also enjoyed walking around Lake Hamilton with our Border Collie. I could not manage that now because of my right knee.”[46]
[46]Exhibit A, PCB 12, paragraph 49
67 The plaintiff further swore:
“I also enjoyed dancing in the past. I will not be able to do this now because of my right knee. Just before I fell pregnant, Garith and I together with our friends went to a club in Hamilton. Everyone went onto the dance floor to dance. I attempted to but after a couple of minutes, I found that I could not cope and simply sat down. I haven’t been back dancing since.”[47]
[47]Exhibit A, PCB 12, paragraph 50
68 The plaintiff further swore:
“… I am restricted in terms of being able to do the gardening. I can only perform cleaning in short bursts. Because of difficulties with vacuuming and mopping, Garith does these things for me. I am able to manage to get the clothes into the washing machine but have difficulty carrying the clothes out in the basket and pegging the washing up so Garith or my mum help me out. I find that even making the bed can be a struggle. I find that bending into the bottom shelf of the dishwasher difficult.”[48]
[48]Exhibit A, PCB 12, paragraph 53
69 In her second affidavit sworn 23 March 2018, the plaintiff swore that prior to her third arthroscopy on 7 November 2017, she had been taking Panadeine about three times a week until 26 October 2017 when her general practitioner advised her not to take it unless absolutely necessary whilst breastfeeding. She ceased analgesia at the end of January 2018 when she discovered that she was pregnant with her second child. She swore:
“… Since ceasing the Nurofen, my knee has swollen far more regularly and there is a persistent tightness in my knee that is present almost always through the day. I continue to breastfeed my baby and I am very cautious about using any medication for that reason.”[49]
[49]Exhibit A, affidavit dated 23 March 2018, PCB 15, paragraph 2
70 Further, the plaintiff swore:
“The pain in my knee is there all the time and it is getting worse. That was why Mr Byrne suggested that I have the arthroscopy to try and at least reduce the pain. He doesn’t believe that it has fixed the problem and he has told me that I will need a knee replacement when I am older and can’t put up with the difficulties anymore.”[50]
[50]Exhibit A, affidavit dated 23 March 2018, PCB 15, paragraph 3
71 Further, she swore:
“Walking, bending, squatting, kneeling, lifting or any activity where I am on my feet is now very difficult. I am restricted in what I can lift. My driving I restricted to 15 to perhaps 20 minutes then I will get increased pain. Looking after my young toddler is very difficult. She is now nineteen months old and she is very active. To pick her up, change her and to look after her will cause pain in my knee but I obviously just have to do what is necessary. My husband is very supportive but he is not there during the day and he can’t do everything.”[51]
[51]Exhibit A, PCB 15, paragraph 4
72 Further, she swore:
“Because of the pain I don’t sleep well and I wake a lot, particularly if I roll onto that side. … .”[52]
[52]Exhibit A, PCB 15, paragraph 5
73 Importantly, she swore:
“I was working in my own business until late January 2016, by which stage I was getting bad morning sickness due to my pregnancy and could not continue working. Before closing I was doing 15-20 hours per week in my business and was having to turn clients away as I could not increase my hours due to the knee injury. I was doing my absolute limit.”[53]
[53]Exhibit A, PCB 17, paragraph 8
74 Further, she swore:
“My intention was to start the business up again once my child was around a year old. That would have been in August 2017. However due to the ongoing knee pain and restrictions due to the knee I have not started the business up again and I don’t believe I could work at all at the present time due to the knee. I felt that after the surgery on my right knee in November 2017 that there had been some minor improvement in my pain levels over all, my knee was not actually feeling as good as it had done after the second surgery in May 2015 and I believe that my right knee has continued to get progressively worse.”[54]
[54]Exhibit A, PCB 17, paragraph 9
75 She further swore:
“I would like to be able to start seeing clients again, but even if I could it would have to be by appointment only at my home, or my mother’s home, instead of from a shop in town. To reopen a shop front I would need to be working at least 20 hours a week to make ends meet, which I don’t think I could reliably do due to my knee. With the knee the way it is, even now after the surgery I had in November last year, I don’t think I could reliably work every day and I certainly could not do four or five hours every Monday to Friday. With the restrictions I have in standing, kneeling, bending and squatting, I would struggle to be able to do one to one and a half hours in any one day even with breaks, and then only after second day at best, working from my home or my mother’s home on a self-employed basis. It is difficult to see my knee improving now to the point that I could work much more than that.”[55]
[55]Exhibit A, PCB 17-18, paragraph 10
76 In cross-examination, it was put to the plaintiff as follows:
Q:“I suggest to you that you would be physically capable of doing less physically demanding jobs than beauty therapy like desk-based jobs. What do you say about that?‑‑‑
A:I definitely considered that as a great alternative because I didn’t have to walk, push, lean. However, I’ve spent a lot of time as you can imagine in (indistinct) in a clerk’s office lately and watching Nicole who’s (indistinct) secretary. She still does a desk job and she still leans down to put paper in - squats down to put paper in the printer. She carries files, she’s up and down the whole time as well, and as much as I’d love to say yes I could definitely sit and type at a desk that’s not exactly all it is in that job, and the same thing I would have to - as I said about my knee I’d have to still be getting up and going for a quick walk. Like right now I’m getting to that point where it’s starting to get stiff, but there’s still squatting to put papers in printers and get things from lower drawers.” [56]
[56]Transcript 17, Line 18 – Transcript 19, Line 4
77 It was further put as follows:
Q:“There might be in the job of a particular person you’re describing, but I suggest to you that so long as you could find a desk-based job that did not involve squatting down you would be able to do it?‑‑‑
A:As long as the employer was willing to still look at my restrictions because I still will struggle to sit for - I couldn’t sit all day.”[57]
[57]Transcript 19, Lines 5-10
78 She was then asked:
Q:“Does it really happen this way, that sometimes after prolonged sitting you need to get up and have a quick stretch of the knee to relieve cramping or tightness and then you’re able to sit down again and keep doing something that’s - - -?---
A:For another possibly 20 minutes, half an hour, and then I would struggle again.”[58]
[58]Transcript 19, Lines 11-16
79 After further probing, the plaintiff stated:
“As long as they were - like as I said the sitting, even just sitting if I sat all day today for instance tomorrow I would be very stiff and very sore. So it would still not be a job I could see myself doing capably without pain full-time.”[59]
[59]Transcript 19, Lines 5-9
80 On further questioning, it was put:
Q:“But do you actually know that, have you actually tried sitting all day? When would you do that at the moment, sitting all day. It would be pretty hard with a 2 year old, wouldn’t it?‑‑‑
A:Well, I’ve gone, as you’ve seen in my appointment list to Melbourne and back there’s eight hours in the car. That’s - that’s an eight hour day, isn’t that a job?
Q:But when you’re in a car you can’t really get up and down, can you - - -?---
A:We do have to stop though. We do have to stop so that I can get up in and out of the car.
Q:Do you say you stop every ten minutes or do you say it’s more like every hour?‑‑‑
A:Probably close to every half an hour, half an hour, 45 minutes we do. So for instance - - -
Q:You have a brief stretch and then you can get back in the car?‑‑‑
A:Yes, and the next day I - for instance to go to these appointments my mum does - or my partner will have to take the day off to take me, and the next day I usually do end up requiring them to have the next day off because again I’m very exhausted with my knee being - the next day it’s always stiff and sore and I struggle to look after my 2 year old by myself with that.”[60]
[60]Transcript 19, Lines 10-30
81 The defendant tendered in evidence a rehabilitation document, being a 130-week vocational assessment dated 8 December 2015.[61] The report was prepared by a Ms Anna Dolman, who was described as an employment placement consultant.
[61]Exhibit 2, DCB 36
82 At that stage, the plaintiff reported to Ms Dolman as follows:
“[She] advised she is happy working for herself. She is able to schedule appointments to suit her physical needs and doesn’t feel like she is letting anyone down by working shorter hours if she is in pain. Ms Bennetts is able to maintain regularly postural changes and breaks throughout the day and avoid certain tasks that exacerbate her injury, including massage.”[62]
[62]DCB 38
83 In considering certain occupations, Ms Dolman first looked at a self-employed beauty therapist, but described the tasks to include:
“Employees constantly stand or sit alongside clients whilst carrying out beauty care tasks.”[63]
[63]DCB 39
84 A similar requirement was noted for working for “Your Beauty Laser & Spa”.[64]
[64]DCB 40
85 With respect to a cashier at KFC, it was noted:
“Staff constantly walk or stand about the kitchen and carry out various tasks ... occasionally employees bend, squat or crouch to facilitate kitchen tasks such as picking up.”
86 With respect to the job description, “Cashier at Bakers Delight,” the job description included:
“Frequently stands at sales counters ... stretching and/or twisting movements may be required occasionally when reaching up or down to shelves. Bending, squatting or crouching movements may be required for lifting products. Lifting, pulling or carrying requirements will be occasional and light, but up to a medium for sales of these types of products.”[65]
[65]DCB 42
87 Thereafter, Ms Dolman considered a beauty therapist, ANZSCO, of which there was one vacancy in the Hamilton area. Once again, the job description included:
“Employees constantly stand or sit alongside clients while carrying out beauty care tasks. ... bending will be occasionally necessary because of situations where the client is lying down and the therapist is required to lean over them to carry out certain processes or tasks such as massage.”[66]
[66]DCB 45
88 With respect to the occupation description, “Receptionist ANSCO 54211,” of which no vacancies were identified in the Hamilton area, the job description included:
“May perform other clerical tasks such as word processing, data entry, filing, mail despatch and photocopying.”
89 A further occupation was described as, “Sales assistant - clothing or cosmetics or jewellery/watches,” of which three vacancies were identified in the Hamilton area. The job description included:
“Staff frequently stand at sales counters or walk about the establishment to assist customers and locate merchandise. They may sit occasionally on high stools. Lift and passes items purchased across scanners and may need to wrap or package goods. Occasional stretching or twisting movements may be required when reaching up or down to shelves or rails. Bending, squatting or crouching movements may be required for lifting products. Lifting, pulling or carrying requirements will be occasional and of sedentary to light demand level.”[67]
[67]DCB 48
90 Further, a job description of, “General clerk, ANSCO 53111,” was considered where the job description included:
“Constantly sits at a work station and carries out a variety of both manual and computerised data entry and word processing tasks. Occasionally stands and walks about the office. Stretching, twisting, climbing and lifting or carrying is not a significant component of this job. Bending, squatting or crouching is not a significant component of this job. There were considered two vacancies identified in the Hamilton area.”[68]
[68]DCB 48
Loss of earning capacity
91 As to the principles applicable concerning loss of earning capacity, I was referred to the Judgment of Heydon J, as he then was, in State of New South Wales v Moss,[69] which provides as follows:
[69][2000] 54 NSWLR 536
“[64]… evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity. … .
…
[66]… in general it is desirable for precise evidence to be called of what the plaintiff would have been likely to earn but for the injury and what the plaintiff is likely to earn after it. … .
…
[69]‘… [W]here a plaintiff has suffered a significantly disabling injury which obviously affects the range and nature of the work he can, therefore, perform, a tribunal of fact can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity.’
…
[71]… The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: …. [It is an issue of] calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. … .
…
[72]… the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum. …
…
[87]… The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters. … .”[70]
[70]Paragraph 87
92 The following evidence concerning loss of earning capacity, in my view, is of relevance in determining whether the plaintiff has suffered a permanent 40 per cent loss. First, all the medical evidence from both plaintiff and defendant attests to the fact that the plaintiff has a skillset which meets virtually all the indicia contained in the job descriptions that I have referred to in exhibit 2, but, broadly speaking, administrative work or work as a beauty therapist on a part-time basis.
93 The plaintiff has attempted to perform modified duties after the injury, but has not done so since the third arthroscopy in November 2017. Prior to that time, she had attained a self-employed self-restricted beauty therapist business where she could work 10 to 15 hours per week, but indicated that this was her absolutely limit. The question remains as to whether the plaintiff’s subjective opinion that she virtually can do no work at present or whether she could return for a limited time, say, 15 or 20 hours per week doing alternative duties is to be considered.
94 In the Court of Appeal decision of Richter v Driscoll,[71] the Court of Appeal had cause to consider a similar situation as to whether a plaintiff could have a capacity for suitable employment, the construction of which Ashley and Kaye JJA, on the definition of no current work capacity and suitable employment, expressed their opinion as follows:
“… 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.”[72]
[71](2016) 51 VR 95
[72]Paragraph 95
95 Osborn JA agreed with Ashley and Kaye JJA that the appeal should be allowed. Osborn JA agreed that the ability of a person to return to work in employment does not simply depend on the capacity of that person to “physically undertake particular tasks”.[73] His Honour went on and stated:
“… The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.” [74]
[73]Paragraph 143
[74]Paragraphs 143-145
96 In this matter, having found that the plaintiff is a witness of truth and having suffered a serious knee injury requiring three bouts of surgery, I accept her evidence that performing sitting tasks for anything up to eight hours per day results in a progressive deterioration in the symptoms such that she has to take virtually the next day off to recover. I accept her evidence that the best that she could achieve after injury has been 15 to 20 hours per week in her business and I accept that she was having to turn clients away, having performed restricted duties roughly equivalent to clerical duties in that time. Whether or not she would be still able to perform those sort of hours is, perhaps, a moot point because on that basis, she would satisfy the criteria of having a 40 per cent loss which I find to be of a permanent degree.
97 It was submitted by Senior Counsel for the defendant that in proving the 40 per cent loss, that I should have regard to the plaintiff’s evidence that she would have been able to earn $720 per week had she been able to finish her course with the defendant or at best, the $842 per week which is adduced in exhibit 3 tendered by the defendant. Even accepting this submission, it seems to me that the plaintiff, if this was the figure to be the basis of a comparison, assuming that she could work as a general clerk earning $1,192 per week for a 38-hour week, this would translate to approximately $32 per hour. At the rate of 15 hours at $32 per hour, her wage would still be approximately $500 per week, which is less than 60 per cent of the $842.
98 In any event, in my view, the correct assessment is that given that the plaintiff, pre-injury, had a full range of abilities to work as a general clerk and, perhaps, into the future as a beauty therapist, I consider that her ability to perform either tasks is severely restricted because of the knee injury and that she has been able to prove the 40 per cent loss of earning capacity into the future, and leave will be granted as sought.
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