Billing v Wealth Within Services Pty Ltd
[2019] VCC 208
•8 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted |
SERIOUS INJURY LIST
Case No. CI-18-03172
| ANNE BILLING | Plaintiff |
| v | |
| WEALTH WITHIN SERVICES PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE TSALAMANDRIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 January 2019 & 1 February 2019 |
| DATE OF JUDGMENT: | 8 March 2019 |
| CASE MAY BE CITED AS: | Billing v Wealth Within Services Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 208 |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – injury to the right hip – injury to the spine – psychiatric injury – pain and suffering – loss of earning capacity – suitable employment.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering Pty Ltd v Victorian WorkCover Authority [2014] VSCA 67; Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121; Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188; Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170
Judgment:Leave granted to the plaintiff to bring proceedings for pain and suffering and loss of earning capacity damages
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| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr C Harrison QC with Ms S Bailey | Slater & Gordon |
For the Defendant | Mr J Simpson | Russell Kennedy |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
Preliminary
1Ms Billing is a 49 year old woman who fell down a flight of stairs, while visiting the Novotel Hotel in St Kilda, during the course of her employment with the defendant on 11 May 2015. As a result of the fall, Ms Billing claims to have suffered injury to her right shoulder, right hip and spine. Ms Billing also claims to have suffered depression as a result of these physical injuries and the impact they have subsequently had upon her life.
2Ms Billing claims to suffer serious pain and suffering consequences, as well as pecuniary loss consequences as a result of these injuries. In order for Ms Billing to be entitled to claim common law damages, the impairment to her right shoulder, right hip and/or spine, must satisfy paragraph (a) of the definition of serious injury contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). In the alternative, Ms Billing must satisfy me that she suffers a psychiatric disease or disorder which meets the definition of serious injury contained in paragraph (c) of the same section of the Act.
3The defendant accepted that Ms Billing injured her spine and right shoulder in the fall, but disputed that she injured her right hip. The defendant alleged that Ms Billing was unmotivated to recover from her injuries, and that her claimed consequences do not meet the statutory threshold.
4Ms Billing was called to give evidence and she was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
Ms Billing’s life before the fall
5Ms Billing was born in Bendigo and moved to Melbourne as a young adult. She attended school until Year 12 and then obtained employment with the Commonwealth Bank, where she worked for seven years as a teller and a training officer.
6Ms Billing then said that she developed chronic fatigue and had a period of time off work. She later obtained employment with the ANZ Bank, before setting up a fitness class business with her then husband, which operated from 1999 to 2011.
7From 2011 until 2014, Ms Billing worked for the Compass Group where she was responsible for the management of five cafés.
8Ms Billing said that she suffered a number of injuries over the years, from which she recovered. Of relevance to this claim, Ms Billing said that she had experienced lower back pain over the years. In 2003, she said that she suffered a compression fracture in her mid-back when she fell off a chair. She said that she then experienced further back pain in March 2005, in 2008, and in April 2014. Ms Billing said that she recovered from each of these episodes of back pain.
9In 2010, Ms Billing stated that she suffered some right shoulder pain. She consulted a physiotherapist and subsequently recovered.
10In about 2011, Ms Billing stated that she suffered some neck pain. She again attended a physiotherapist and subsequently recovered.
11In approximately April 2014, Ms Billing said that she had a flare-up of back pain and was given pain relief medication.
12In approximately May 2014, Ms Billing felt that she was being bullied while working for the Compass Group. Ms Billing said that her employer dealt with her bullying complaint and that she was able to continue working.
13Ms Billing is divorced and lives with her teenage daughter.
14At the time of the fall, Ms Billing said that she was in a relationship, which had begun approximately 8 to 10 months earlier.
15Ms Billing said that she had previously enjoyed body building, which she had undertaken while running her personal fitness business. She said that she had taken a break from body building for a period of time, but that she had recommenced personal training not long before the fall.
16Ms Billing stated that she usually ran 10 kilometres on a regular basis and that she also did boxing for fitness. In addition, Ms Billing said that she sometimes rode her bike with her daughter on weekends.
17Ms Billing also stated that she performed maintenance work around her home and kept a well-manicured garden.
18Ms Billing said that she enjoyed going to the cinema in her spare time, or shopping with her daughter, as well as sewing and making clothes.
The fall and Ms Billing’s claimed consequences
19In approximately September 2014, Ms Billing commenced her employment with the defendant as an office manager. She said that she earned approximately
$1,250 per week, or $65,000 per annum, plus superannuation in this role.
20On 11 May 2015, Ms Billing said that she was attending a meeting at the Novotel Hotel in St Kilda, with her manager. While descending a flight of stairs, Ms Billing said that she fell and tumbled down approximately 20 stairs. She said that she sustained injuries to her spine and right shoulder in the fall, as well as pain in her legs, including her right hip.
21Notwithstanding that she was shaken up from the fall, Ms Billing said that she still attended the meeting at the Novotel, with an ice pack on her right shoulder.
22Later that afternoon, Ms Billing was taken by her then partner to general practitioner, Dr David Lee, at the Coburg Family Medical Clinic. His clinical notes of this date referred to Ms Billing suffering pain in her spine, right shoulder, left knee and left ankle. There was no reference to a right hip injury in his clinical notes. In cross-examination, Ms Billing said that she believed she had told Dr Lee about the right hip pain, but said that she could not be certain. She said that in the initial period following her injury, the main focus of her treatment was her right shoulder.
23Dr Lee provided Ms Billing with some pain medication, referred her for an x-ray of her right shoulder and recommended that she have time off work.
24On 13 May 2015, Ms Billing returned to the Coburg Family Medical Clinic where she was seen by general practitioner, Dr Tjandramulia. Ms Billing said that she was given a sling for her right shoulder at that time, and was referred for an ultrasound of her right shoulder. The ultrasound was performed the following day and was reported as demonstrating mild tendinopathy of the subscapularis tendon with some thickening of the subacromial bursa.
25On 19 May 2015, Ms Billing was then referred to Dr Tanusha Cardoso at the Alphington Sports Medicine Clinic, in relation to her right shoulder pain.
26On 20 May 2015, Ms Billing was referred for physiotherapy treatment. She consulted Mr Angelo Matsas, whom she continued to see on a regular basis until the end of that year.
27On 22 May 2015, an MRI scan was taken of Ms Billing’s right shoulder. There was no evidence of rotator cuff pathology, but it was reported as demonstrating evidence of acromioclavicular (AC) joint effusion and oedema which suggested a symptomatic arthropathy. It was also noted that there were minor changes in the rotator interval and inferior glenohumeral capsular thickening which suggested low grade adhesive capsulitis.
28On 27 May 2015, Ms Billing received a cortisone injection into her right shoulder. She said that it provided her with limited benefit.
29On 22 July 2015, Dr Cardoso provided a certificate of capacity for Ms Billing, which referred to her suffering right shoulder adhesive capsulitis and AC joint sprain, as well as right hip bursitis. Dr Cardoso certified Ms Billing as fit to return to work four hours per day, provided she undertook no heavy lifting with the right shoulder.
30Ms Billing said that she subsequently returned to her employment with the defendant, and that, by the middle of August 2015, she had worked up to full- time hours, at which time the defendant made her redundant. Her employment with the defendant ceased on 14 August 2015.
31On 5 August 2015, Ms Billing underwent a hydrodilatation on her right shoulder. She said that it also provided her with little benefit.
32On 1 October 2015, Ms Billing underwent a further hydrodilatation, which she said provided her with some assistance.
33Ms Billing stated that she also obtained acupuncture treatment from Ms Aruna Giri during this period.
34In approximately October 2015, Ms Billing said that she returned to her usual medical clinic, the Gladstone Park Medical Centre, where she continues to attend for ongoing treatment.
35In December 2015, Ms Billing was referred to psychologist, Ms Ana Gasparis, for her psychological upset.
36In January 2016, Ms Billing obtained alternative employment with Life Education where she worked for approximately six months. While in this employment, Ms Billing said that she experienced some psychological difficulties due to a perception that she was engaging in bullying behaviour.
Ms Billing ultimately said that she experienced difficulties working at Life Education due to her injuries, and that she ceased such employment on 29 July 2016. She said that she just “fell in a heap” and was not able to go on.
37Ms Billing said that Dr Cardoso referred her for medical imaging as she continued to suffer right hip and lower back pain.
38On 3 March 2016, an ultrasound was taken of Ms Billing’s right hip. It was reported as demonstrating small right trochanteric bursitis with a small partial thickness partial width tear of the distal gluteus medius fibres.
39The following day, an MRI scan was taken of Ms Billing’s lumbar spine. It was reported as demonstrating disc desiccation at the lumbosacral junction, including a small posterior superior annular tear. There was no evidence of focal disc herniation or canal stenosis or compressive radiculopathy at any level.
40In October 2016, Ms Billing was referred to Victoria Pain Specialists where she was seen by Dr Tim Hucker and Dr Mean Eddy. Ms Billing then participated in a pain management program from November 2016 until January 2017.
41In a follow-up review appointment, Ms Eddy noted that Ms Billing was “desperately keen” to obtain employment, as she felt “useless and lacking purpose” without it.
42In approximately December 2016, Ms Billing established her own business as a pet sitter. She said that she registered with an online company called Mad Paws, which advertises her services and testimonials, books her jobs and collects payment from her clients. Ms Billing said that, upon collecting payment from her clients, Mad Paws takes a commission and a booking fee, before depositing the balance of her fees into her bank account.
43Ms Billing said that she enjoyed the flexibility of this work, as she was able to look after the animals in a way that suited her, depending upon the way she felt
each day. When the animals were at home with her, Ms Billing said that she could sit, stand and walk as she pleased, and that if she was not feeling well, she could lie on her bed with the dogs. Ms Billing said that she told her customers about her injuries, and that it was her preference not to walk their dogs. She said that she felt the dogs were happy just having someone around. Ms Billing received glowing references from her many clients.
44Ms Billing said that it took her a period of time to build up her clientele. For the period 19 December 2016 until 30 June 2017, Ms Billing received $11,347.92 from Mad Paws. In the following financial year, ending 30 June 2018, Ms Billing earned $57,091.18.
45Ms Billing’s earnings were identified by the defendant’s solicitor through the inspection of subpoenaed documents from both Mad Paws and Ms Billing’s bank statements. However, Ms Billing had claimed no income from Mad Paws on her tax returns for the financial year ending 30 June 2017, and had claimed only $11,162 for the financial year ending 30 June 2018. Ms Billing said that she was unaware of this discrepancy until it was pointed out to her on the day of hearing.
46Ms Billing said that she relied upon her daughter and elderly mother to help her clean-up after the dogs and to ensure that her house was clean for her clients.
47Ms Billing then claimed that, in approximately June 2018, she was contacted by the Moreland City Council, who had received complaints from her neighbours. She said that the Council informed her that she was only permitted to have two dogs on her premises, following which she modified her advertisement on the Mad Paws website, to promote her ability to visit pets at their own homes. Ms Billing now undertakes such work, which involves her visiting an animal once or twice per day, for any period of time between 5 to 30 minutes.
48Ms Billing said that house visits are not as lucrative as dog sitting within her own home. She stated that Mad Paws charge her clients $26 per visit, and that she now earns about $250 per week.
49Ms Billing denied that she walks her clients’ dogs, the one exception being the dog of a former client, who is now a friend. She said that she is not paid to walk this particular dog, but simply does it as a favour to her friend, when she feels up to it.
50In September 2018, Ms Billing decided to apply for a disability support pension through Centrelink and sought a letter of support from Dr Cardoso. When this was discussed, Dr Cardoso recommended that Ms Billing return for treatment from pain specialist, Dr Tim Hucker. Ms Billing stated that she did not wish to return to this doctor, however, as she felt that Dr Hucker had not listened to her on previous occasions, nor had she gained anything from his treatment. Ms Billing said that she went back to speak with Dr Cardoso about this recommendation, and that she subsequently amended the letter to Centrelink, so as to delete a reference to this proposed referral. In cross-examination, Ms Billing denied having manipulated her doctor for the purpose of benefiting from Centrelink.
51Dr Cardoso continues to treat Ms Billing. However, the consultations are now less frequent than they were when Ms Billing was originally referred. In a report dated 25 January 2019, Dr Cardoso confirmed that she had diagnosed Ms Billing as suffering right shoulder adhesive capsulitis and AC joint sprain which had settled, and from which she had developed pain sensitisation. Dr Cardoso also stated that she had treated Ms Billing in relation to lower back pain and right hip tendinopathy and bursitis. Dr Cardoso was of the opinion that Ms Billing’s features of central pain sensitisation accentuated her organic conditions.
52Dr Cardoso was of the opinion that Ms Billing had the capacity for light duties, working in a desk-based job.
53Ms Billing claims that she suffers constant pain in both her upper and lower back. She said that her pain radiates down her right leg and into her right foot. Ms Billing said that, due to this pain, she sometimes finds it hard to walk, and that she suffers spasms and a cold sensation in her lower leg.
54Ms Billing said that her back pain is made worse by activities such as sitting, standing, walking, bending, reaching and lifting, and that it can be aggravated by driving.
55Ms Billing also stated that she suffers a constant ache in her right shoulder and that such pain radiates up the right side of her neck, as well as down her right arm and into her hand. Ms Billing said that she has experienced a significant loss in the grip strength of her right hand. She also stated that movement such as reaching to shoulder height or above, aggravates her shoulder pain, as does driving, writing or using the computer.
56Ms Billing also claimed that she suffers a dull aching pain in her right hip, which is aggravated by prolonged sitting, walking, twisting, bending and lying on her right side.
57Ms Billing said that her sleep is affected by her injuries and that she typically only gets around two hours’ sleep per night. She said this is due to the unrelenting pain in her spine, right hip and right shoulder.
58Due to her physical injuries, Ms Billing said that she now suffers from a deep depression, as she feels she has no respite from her pain. She also stated that she suffers from anxiety and panic attacks.
59Ms Billing stated that she is very teary and that she has become irritable, especially with her daughter, that her motivation levels are low and that she has lost her self-confidence.
60Ms Billing stated that she no longer takes medication, as she had gained no benefit from the medications offered to her over the years, and had suffered undesirable side effects. Instead, Ms Billing said that she prefers to “listen to my body” and that she tries to practice mindfulness and control her breathing.
61Ms Billing stated that she has had to rely upon her daughter to perform household chores such as cooking due to her physical injuries, and that while she can undertake some tasks, she leaves much of the cleaning to her mother or daughter.
62Ms Billing said that she no longer enjoys activities with her daughter such as shopping or going to the movies. However, she acknowledged that her Facebook page contains photos of several concerts and musical events that she has attended with her daughter. She said that she would attend such events under sufferance, to give her daughter some enjoyment. On one particular occasion, Ms Billing said that she attended a concert and was required to stand waiting for a six hour period before the concert started.
63In approximately September 2015, Ms Billing said that she was able to travel overseas with her then partner, on a holiday which had been arranged prior to the fall. She said that their relationship subsequently broke up, which she attributed to her being in a lot of pain and exhausted.
64Ms Billing said that she greatly misses having an active social life, as well as being fit and active.
65Ms Billing said that she is no longer able to exercise in the way that she did prior to the fall and that, in particular, she can no longer run or ride her bike.
66Ms Billing also stated that she is now limited in what she can do in her garden, and said that she can no longer tend to the weeds, plant shrubs or mow her lawns. She said that she is now limited to tasks such as watering her garden, or small amounts of pruning.
Medico-legal evidence
67Ms Billing’s solicitors arranged for her to be examined by orthopaedic surgeon, Mr John O’Brien, in November 2018. In his report dated 13 November 2018, Mr O’Brien stated that he considered there to be subjective signs in Ms Billing’s right shoulder, which were variable and not diagnostic of specific underlying shoulder pathology. In relation to her back pain, Mr O’Brien considered there to be mild variable objective signs with some restriction of movement, but no current evidence of nerve-root compromise. Mr O’Brien did not consider the minor degenerative change in Ms Billing’s lumbar spine to explain the extensive distribution of her current pain, and therefore considered Ms Billing to be suffering from a chronic pain syndrome, which was influenced by psychosocial factors.
68Mr O’Brien was of the opinion that Ms Billing was totally incapacitated for work, and considered there to be little prospect that she would return to gainful employment in the future. He offered this opinion on the basis that she struggled with the normal activities of daily living.
69Ms Billing’s solicitors also arranged for her to be examined by physician, Dr Peter Blombery, in November 2018. In his report dated 22 January 2019, Dr Blombery stated that the fall had resulted in the aggravation of previously asymptomatic degenerative changes in Ms Billing’s thoracic spine. Dr Blombery also considered there to be a significant component of soft-tissue injuries affecting Ms Billing’s muscles, ligaments and other structures in the right scapula, which had been complicated by the development of non-specific pain syndrome with a sensitisation of pain nerve pathways. Dr Blombery then explained that this process is termed central sensitisation, and is an organic disorder of pain nerve pathways.
70Dr Blombery also noted that Ms Billing had developed a significant secondary depression which affected her level of disability and aggravated her experience of pain.
71Dr Blombery was of the opinion that Ms Billing was capable of performing work which did not involve any heavy or repetitive use of her right arm, up to 20 hours per week.
72The defendant arranged for Ms Billing to be examined by occupational physician, Dr Ralph Poppenbeek, in January 2016. In his report dated 21 January 2016, Dr Poppenbeek considered Ms Billing to have sustained injuries to her right shoulder which had developed into capsulitis, and probable right lumbosacral strain and possible right hip bursitis. At that time, Ms Billing had just commenced her employment with Life Education, and Dr Poppenbeek considered her only limitation to be that she not lift more than five kilograms, and that she be properly ergonomically seated with the ability to get up and move from time to time.
73The defendant also arranged for Ms Billing to be examined by occupational physician, Dr Malcolm Brown, in March 2017 and November 2018. In his most recent report dated 20 November 2018, Dr Brown noted that Ms Billing complained of worsening pain in her right shoulder, of which he considered there to be an organic basis. Dr Brown was of the opinion that the fall was still a contributing factor to Ms Billing’s right shoulder pain. However, he did not consider the right hip pain to be related to the fall.
74Dr Brown was of the opinion that Ms Billing was able to undertake some pet care work, on a part-time basis, “probably up to half shifts”.
75The defendant also arranged for Ms Billing to be examined by orthopaedic surgeon, Dr Ian Dickinson, in November 2018. In his report dated 4 December 2018, Dr Dickinson stated that there were minor degenerative changes in Ms Billing’s AC joint, as well as degenerative change in her lumbosacral spine. However, he did not consider there to be any evidence of an organic condition, which caused her ongoing complaints of pain. Specifically, Dr Dickinson said that the physical findings, “do not reflect any physical abnormality, but reflect
abnormal pain-focusing behaviour and are not consistent with any injury”. Dr Dickinson did not consider the radiological evidence of degenerative change in the right AC joint and lumbar spine to be of any significance in relation to her pain presentation.
76Dr Dickinson was ultimately of the opinion that Ms Billing had the capacity to perform full-time duties, including working as a pet sitter, an office manager, an administrative officer, a receptionist or a personal assistant.
77The defendant also arranged for Ms Billing to be examined by psychiatrist, Dr Michael Duke, in March 2017 and December 2018. In his most recent report dated 19 December 2018, Dr Duke was of the opinion that Ms Billing was suffering from ongoing chronic secondary adjustment disorder, with mixed anxiety and depressed mood. He considered her psychiatric condition to be secondary to the ongoing physical symptoms which she had suffered since the fall. Dr Duke noted that her symptomology included, pain, irritability, fatigue, poor sleep, anxiety, depression, over-eating, passive suicidality and difficulty with comprehension.
78Dr Duke was of the opinion that Ms Billing had a poor prognosis.
79Dr Duke then stated that he did not consider Ms Billing to have any current work capacity, save for occasional dog minding. He felt that she may be capable of performing such work for one to two days per week, working normal hours.
Is there a substantial organic basis to Ms Billing’s spine, right shoulder and right hip impairment?
80A key issue for determination in this application, is whether I am satisfied that Ms Billing’s pain and disability has an organic basis, or whether her symptoms are due to a non-organic or functional overlay.
81To succeed in her claim brought under paragraph (a) of the definition of serious injury, Ms Billing must satisfy me, on the balance of probabilities, that the
organically-based consequences satisfy the statutory criterion of being more than significant or marked, and at least very considerable.1
82In the Court of Appeal decision of Meadows v Lichmore Pty Ltd,2 Maxwell ACJ identified a two-step process of analysis for cases in which a physical injury was present, as well as a pain syndrome:
“The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative - and, of course, if the pain and suffering consequences satisfy the statutory criterion - then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.”3
83Medical imaging taken soon after the fall demonstrated that Ms Billing suffered adhesive capsulitis in her right shoulder, degenerative changes in her AC joint, degenerative changes in her lumbar spine and bursitis in her right hip. Dr Poppenbeek and Dr Cardoso examined Ms Billing in the year after the fall and both were of the opinion that there was an organic basis to her pain.
84Since that time, however, Ms Billing’s complaints of pain have persisted, and are now amplified in a way that some of the doctors considered out of proportion to the reported pathology.
85Dr Dickinson was of the opinion that Ms Billing was not suffering from an organic condition, and did not consider the pre-existing degenerative changes in her AC joint and lumbar spine to have been “aggravated by the fall.” In making this comment, however, I note that Dr Dickinson appears to have ignored Ms Billing’s consistent complaints of right shoulder and lower back pain since the time of the fall. I therefore gain little assistance from Dr Dickinson’s comments in relation to the basis of her condition.
86Mr O’Brien was of the opinion that Ms Billing was suffering a chronic pain condition. He referred to pathological findings as well as psychosocial factors
s325 Workplace Injury Rehabilitation and Compensation Act 2013
[2013] VSCA 201
Ibid at [21]
influencing Ms Billing’s condition. It would appear that Mr O’Brien was of the view that any organic basis was no longer substantial.
87Dr Brown considered Ms Billing’s right shoulder pain to have an organic basis.
88Dr Cardoso was of the opinion that Ms Billing was suffering central pain sensitisation, which accentuated her organic conditions.
89Dr Blombery explained that Ms Billing’s complaints of pain were a result of her having developed central sensitisation, which he stated is an organic condition. No medical opinion has been offered to the contrary.
90The preponderance of the medical evidence therefore supports a finding that there is a substantial organic basis to Ms Billing’s complaints of spine, right shoulder and right hip pain. It is therefore necessary for me to now consider the consequences arising from such a physical impairment.
Aggregation of injuries
91In assessing Ms Billing’s application, it is impermissible for her to aggregate the impairment arising from her right shoulder, spine and right hip.
92As was noted by Maxwell P in Peak Engineering Pty Ltd v Victorian WorkCover Authority:4
“… where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre- condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”5
93In cases where the injuries cause separate and distinct consequences, this is a relatively easily task. However, as was the situation in Peak Engineering, where there is some overlap between the consequences arising from two or
[2014] VSCA 67
Ibid at [24]
more separate injuries, it is necessary for the plaintiff to disentangle the consequences of each.
94An overlap in consequences from multiple impairments does not automatically disentitle the plaintiff. As was noted by Ashley J in Grech v Orica Australia Pty Ltd:6
“It is quite possible – it will be a matter of determination according to the evidence in the particular case – that each of two or more compensable injuries is a legally sufficient cause of the same consequences.
… it is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”7
95Thus, I must now consider each of Ms Billing’s claimed impairments separately. I will commence with a consideration of her spinal impairment as, on the evidence before me, I consider it her most significant physical impairment.
Impact of Ms Billing’s spinal impairment upon her earning capacity
96Ms Billing has the onus of satisfying me that, as at the date of hearing, as a consequence of her spinal impairment alone, she has sustained a loss of earning capacity of 40 per cent or more; and that she will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Ms Billing is capable of earning, whether in suitable employment or not.
97In undertaking this task, I must compare what Ms Billing is currently earning, or capable of earning in suitable employment, with her pre-injury earning capacity.
98The parties agreed that Ms Billing’s remuneration at the time of the fall, was the figure that most fairly reflected her pre-injury earning capacity. This figure was
$1,250 gross per week.
99Ms Billing must therefore satisfy me that, as a consequence of her spinal impairment, she has suffered a permanent loss of earning capacity, such that
she is incapable of earning more than $750 gross per week, and that such a restriction on her earning capacity will be permanent.
100From July 2017 until June 2018, Ms Billing was able to care for dogs in her home and was paid a gross weekly sum of $1,097.90. This was suitable employment for Ms Billing, as it offered her the flexibility to stand, walk and sit as she needed. Unfortunately for Ms Billing, in June 2018, she was informed by the Moreland City Council, that she could not continue to undertake dog minding in her home. As a consequence Ms Billing now only visits pets.
101I am satisfied that dog minding in her home constituted suitable employment for Ms Billing. However, I accept Ms Billing’s evidence that following a complaint from her neighbours, she was advised by the Council that she was no longer permitted to have that many dogs in her home. In such circumstances, the evidentiary onus shifted to the defendant, to establish that such suitable employment is available to Ms Billing.8
102During the hearing of this matter, I gave leave to the defendant’s solicitor, Mr Jonathan Kerr, to tender an affidavit detailing enquiries he had made with the Moreland City Council in relation to Ms Billing’s prospects of gaining permission to lawfully care for dogs in her home. This affidavit exhibited details of the permit scheme under which a home-based business may operate, including land size and other criteria. Further, Mr Kerr stated that he spoke to the Moreland City Council’s Planning Department, who advised that, if the Council received complaints from neighbours, it would assess the property to determine whether or not the business adversely affected the amenity of the neighbourhood.
103Ms Billing said that she was unaware of the permit process deposed to by Mr Kerr. Instead, Ms Billing said that she had been told that she would need to apply for an Excess Animal Permit, and that, in circumstances where her neighbours had already complained to the Council, she had no chance of
obtaining permission. In such circumstances, Ms Billing said that she did not consider there to be any point in applying to the Council for a permit.
104On the evidence before me, I consider it speculative that Ms Billing will ever be able to resume dog minding in her home. Instead, I consider suitable employment to comprise Ms Billing attending the homes of her clients, to visit their animals, for short visits. Unfortunately, such work is less remunerative.
105In the week prior to the hearing, Ms Billing said that she had 10 jobs, from which, after the deduction of Mad Paws’ fees, she received approximately $200. These jobs generally constituted visiting an animal once per day, the exception being one client who required her to visit a cat twice per day. Each of the jobs were in suburbs near to Ms Billing’s home. In circumstances where she has a good reputation on the Mad Paws website, it may be possible for Ms Billing to build up her pet visiting service, such that she is able to complete 20-30 jobs per week. Such work would be consistent with her sitting, standing and walking tolerances, and would provide her with sufficient flexibility to rest when needed. However, even if Ms Billing was to achieve such an outcome, I am satisfied that she would still suffer the requisite pecuniary loss.
106I am also satisfied that the desk-based positions identified by vocational assessors, Nabenet, in their report dated 23 February 2017, would also constitute suitable employment for Ms Billing. In cross-examination, Ms Billing accepted that she had the skills required to perform the roles of an office manager, administration officer, receptionist or personal assistant. However, she insisted that she did not have the capacity to perform such work.
107In assessing Ms Billing’s claim for loss of earning capacity, I am obliged to do so realistically, by reference to her physical limitations.9 This is a test of physical capacity, not employability, and it involves a consideration of what Ms Billing
might, in the foreseeable future, be able to do on a regular and consistent basis.10
108I consider Mr O’Brien to have been too pessimistic in his opinion as to Ms Billing’s incapacity to undertake any employment, and Dr Dickinson to have been too optimistic in his opinion as to Ms Billing’s capacity to return to full-time duties. Instead, I am most assisted by the opinions of Dr Cardoso, Dr Blombery and Dr Brown. I note that Dr Blombery specifically stated that, in his opinion, Ms Billing was capable of working in such office duties up to 20 hours per week.
109I accept Ms Billing’s reports of constant lower back pain, and her complaints that such pain is made worse by prolonged sitting, standing and walking. I therefore consider 20 hours per week to constitute the maximum number of hours that Ms Billing could perform in such suitable employment on a reliable and consistent basis.
110Based upon the hourly rates contained in the Flexi Personnel report dated 29 January 2019, Ms Billing would still suffer the requisite pecuniary loss, if she were to work 20 hours per week as an office manager, administration officer, receptionist or personal assistant.
111Nabenet also suggested that Ms Billing’s physical restrictions may be consistent with her working as a health and wellness consultant. However, as Nabenet was uncertain as to whether or not Ms Billing had the requisite qualifications for such a role, on the evidence before me, I do not consider this to constitute suitable employment.
112I am therefore ultimately satisfied that Ms Billing suffers the requisite 40 per cent loss of earning capacity as a consequence of her spinal impairment. I am satisfied that such a loss will be permanent.
113Once the threshold of 40 per cent reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences to Ms Billing meet the “very considerable test”.11 Given my acceptance that Ms Billing’s spinal impairment restricts her to performing part-time pet visiting or part-time office work, the pecuniary disadvantage to her is so great that I consider her loss of earning capacity can be described as at least very considerable.
114As Ms Billing has satisfied me that she suffers a serious injury in respect of loss of earning capacity arising from her spinal impairment, it is not necessary for me to consider separately her pain and suffering consequences.12
Ms Billing’s right shoulder and right hip impairments
115As I am satisfied that Ms Billing’s spinal impairment satisfies the definition of serious injury, she is therefore entitled to seek common law damages in respect of the injuries she suffered in the fall. It is not necessary for me to separately consider her other applications under paragraph (a) in relation to her right shoulder and right hip.
Ms Billing’s psychiatric impairment
116In circumstances where I am granting leave to Ms Billing to seek common law damages under both heads, I am not required to separately consider her claim for psychiatric impairment. However, I will briefly indicate that I am also satisfied that Ms Billing should be granted leave in respect of her psychiatric impairment. I note that Ms Billing relied upon the opinion of Dr Duke, who considered her capable of undertaking only part-time pet-minding work due to her chronic ongoing psychiatric condition. There is no psychiatric opinion to the contrary.
117Dr Duke’s opinion accords with my own assessment of Ms Billing, and my acceptance of her claimed psychological consequences. I am therefore satisfied that, separate to her physical impairment, Ms Billing also suffers the requisite pecuniary loss as a consequence of her psychiatric impairment.
s325 (2) (c) of the Act
Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170 at [63]
118I will make the consequent orders.
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