Bishop, Tracy Ann v Patrick Stevedores Holdings Pty

[2010] VCC 119

IN THE COUNTY COURT OF VICTORIA Unrevised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-01626

TRACY ANN BISHOP	Plaintiff
v
PATRICK STEVEDORES HOLDINGS PTY LIMITED	First Defendant
and
QBE WORKERS COMPENSATION (VIC) LIMITED	Second Defendant

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 11 December 2009
DATE OF JUDGMENT:	5 March 2010
CASE MAY BE CITED AS:	Bishop, Tracy Ann v Patrick Stevedores Holdings Pty Limited and QBE Workers Compensation (Vic) Limited
MEDIUM NEUTRAL CITATION:	[2010] VCC 0119

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – left knee injury – “without injury earnings” -

Accident Compensation Act 1985, s.134AB(38)(e) – “suitable employment”.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P A Jewell SC and	Williams Winter
Mr G Wicks
For the Defendants	Mr G A Lewis SC and	Herbert Geer
Ms C Boyle
HIS HONOUR:

1 By way of Originating Motion dated 20 April 2009, Tracey Ann Bishop (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”) to bring common law proceedings to recover damages for an injury to her left knee suffered by her on or about 27 or 28 March 2005 (“the injury”) during the course of her employment with Patrick Stevedores Holdings Pty Limited (“the first defendant”).

2          The plaintiff seeks such leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.

3          The plaintiff was represented by Mr P A Jewell SC and Mr G Wicks of Counsel, and the first defendant was represented by Mr G A Lewis SC and Ms C Boyle of Counsel.

4          The application was heard over two days and the following evidence was adduced:

(a)	The plaintiff gave viva voce evidence and was cross-examined;
(b)	The plaintiff tendered her Court Book (“Exhibit A”);
(c)	The defendant tendered the following evidence:

(i)    video film taken on 3 November 2009 (“Exhibit 1”);

(ii)   video film taken on 21 July 2009 (“Exhibit 2”);

(iii)  pages 1-34C, 54-76, 89-98, 98-98b, 99-110 and 158-159 of the first defendant’s Court Book (“Exhibit 3”).

Relevant Legal Principles

5          The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: (see s.134AB(16)(a) of the Act).

6          Although the Form A application initially lodged by the plaintiff sought to rely on paragraphs (a) and (b) of the definition of “serious injury”, the plaintiff, at the hearing of the application, only sought to rely on paragraph (a) of the definition which reads:

“serious injury means—

(a) permanent serious impairment or loss of body function ...”

The part of the body said to be impaired is the “left knee” (T2 L7).

7          In order to succeed, the plaintiff must prove on the balance of probabilities that:

(a)	“the injury” suffered by her arose out of or in the course of or due to the nature of her employment with the first defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622, at paragraph [11]);
(b)	“the injury” and the resultant impairment is “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op cit), at paragraph [33]);
(c)	the “consequences” to the plaintiff of the impairment of the left knee in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments may be fairly described as being more than significant or marked, and as being at least very considerable”: (see s.134AB(38)(b) and (c) of the Act). This test is sometimes referred to as the “narrative test”.
(d)	In addition, in relation to “loss of earning capacity” consequences, the plaintiff has a specific burden: (see s.134AB(19)(b) and (38)(e) of the Act) to establish:

(i)   that as at the date of hearing, a loss of earning capacity of 40 per cent or more measured (subject to certain relevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act: (see s.134AB(38)(e)(i)); and

(ii) that after the date of hearing she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more: (see s.134AB(38)(e)(i)).

8          In determining the application, the Court:

(a)	must not take into account psychological or psychiatric consequences of “the injury” which can be taken into account only for the purposes of paragraph (c) of the definition of “serious injury”: (see s.134AB(38) of the Act);
(b)	must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(c)	must give reasons which are as extensive and complete as the Court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with that evidence and the issues raised by the application: (see s.134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 566, at paragraphs [89]–[92]);
(d)	notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.

In the event that a worker satisfied sub-paragraph (i) but not sub- paragraph (ii) of s.134AB(38)(b), he is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”: (see Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170), delivered by the Court of Appeal on 28 July 2009, and in particular, at paragraphs 60-64).

The Issues

9          Mr Lewis, Senior Counsel for the defendants, informed the Court that there was no issue that the plaintiff suffered a compensable injury and that such injury gave rise to impairment and consequences (T10 L29 – T11 L5).

10        Although no direct concession was made that the plaintiff would satisfy the narrative test entitling her to an order that she have leave to bring common law proceedings for “pain and suffering” damages, the Court was informed that “it is a 40 per cent case basically” (T10 L29 – T11 L6).

11        Consistent with such an approach, no submissions were made by the defendants in relation to “pain and suffering” damages (T54 L19-25).

The Plaintiff and “the Injury”

12        The Court refers to the affidavits sworn by the plaintiff on 15 December 2008 (at page 27 of Exhibit A, and hereafter referred to as “the first affidavit”), 15 July 2009 (at page 59 of Exhibit A, and hereafter referred to as the “second affidavit”) and on 10 December 2009 (at page 124 of Exhibit A, and hereafter referred to as “the third affidavit”). In her evidence-in-chief, the plaintiff stated that she had read over the affidavits of recent times and the contents were “accurate” (T 12, L23-26).

13        The plaintiff is a forty-nine year old (born 25 May 1960) woman who has recently separated from her de facto partner.

14        She commenced employment with the first defendant in 2000 in the capacity of a waterside worker, undertaking a full range of duties, including “lashing duties; driving cars, trucks and cleaning machines; lifting and carrying bags of rice weighing up to 30 kilograms; bending, squatting, ascending and descending ladders, gangways ….”: (refer paragraph 6 of the first affidavit).

15        During the course of her employment with the first defendant, on either 27 or 28 March 2005, the plaintiff suffered injury to her left knee when performing unlashing duties on a ship at Webb Dock, Port Melbourne. The plaintiff was one of a gang of four unlashing new vehicles. She describes the injury occurring in the following circumstances:

“… on 28 March, about mid-morning, in the course of moving in to unlash

a Mercedes, I struck my left knee on the protruding lashing point.

My knee hurt and I stood back and rested for no more than a few minutes. I thought nothing further of this occurrence.

I then continued with unlashing duties, again moving around and working in the dark. No more than a few minutes later my left knee struck another one of these lashing points on another Mercedes.

. . .

As my left knee again struck a protruding lashing point of a Mercedes, I suffered the onset of excruciating pain and I believe that I let out an exclamation of pain.”

(See generally paragraphs 8 and 9 of the first affidavit).

16        On 31 March 2005, the plaintiff consulted her long-term general practitioner, Dr Rajendra Suka in Melton, who in turn referred her to the orthopaedic surgeon, Mr Russell Miller.

17        Mr Miller initially consulted with the plaintiff on 18 April 2005, at which time clinical examination revealed “moderate effusion in the knee” (page 72, Exhibit A) and x-rays revealed “possible early degenerative changes and loose bodies in the intercondylar notch”: (see page 72, Exhibit A).

18        Mr Miller has performed the following procedures on the left knee:

(a)	On 12 May 2005, the plaintiff underwent an arthroscopic debridement of the left knee which revealed a medial meniscal tear and extensive chondral erosions of the medial femoral condyle which were debrided: (see page 72, Exhibit A);
(b)	On 24 May 2006, the plaintiff, after a poor response to treatment, underwent a further arthroscopic debridement of the left knee which now revealed extensive patellar disease and corresponding areas of trochlear disease. Mr Miller noted that there had been significant disease progress since the last arthroscopy: (see page 72, Exhibit A);
(c)	Some consideration was given to chondrocyte grafting, and on 10 May 2007, a further arthroscopy was undertaken with a view to harvest chondrocyte but it was noted that there had been further deterioration, particularly in the medial femoral condyle which required total knee replacement rather than implantation: (see page 72, Exhibit A);
(d)	On 7 June 2007, the plaintiff underwent a total knee replacement with patellar resurfacing. Such procedure was complicated by arthrofibrosis and the plaintiff underwent a manipulation under anaesthetic and left knee arthroscopic arthrolysis on 30 August 2007;

19        The plaintiff was reviewed on several occasions by Mr Miller and was most recently reviewed on 7 September 2009. At a previous examination on 18 August 2009, Mr Miller noted the plaintiff was developing problems with low- back pain and “ongoing problems with the left knee”: (see page 77A, Exhibit A).

20        In his report dated 2 December 2009, Mr Miller states, in part:

“… In relation to the left knee my views remain unchanged. That is the condition of the left knee relates significantly to the work event in March 2005.

In relation to the lumbar spine and right knee I believe these are secondary consequences to the gait disturbance and overuse phenomena.

. . .

She will require ongoing treatment with analgesics, anti-inflammatory agents and physiotherapy. She has undergone a left total knee replacement at a relatively young age and I believe that there is a likelihood that she will ultimately come to revision surgery during her lifetime. This surgery is particularly complex. …

. . .

It is difficult to predict the timing of this, but it is likely to be in a 10-15

year time frame from its initial insertion. …

. . .

She has significant problems with ongoing pain and she has clearly

suffered a loss of enjoyment of life as a consequence of her injuries … .”

(my emphasis)

(see page 77B of Exhibit A).

The Work Capacity of the Plaintiff

21        The plaintiff gave evidence that she left school in Form 3, not having completed that year (see paragraph 6 of the first affidavit and T35 L7-9), after which she worked in factories, as a domestic, and for quite some time as a barmaid, before commencing with the first defendant in April 2000: (see paragraph 6 of the first affidavit).

22        The plaintiff was initially employed by the first defendant as a “supplementary employee” who was engaged to meet peaks in labour requirements, and such work was said to be “irregular” and with no guarantee of hours. However, on 11 October 2004, about five months before the injury, the plaintiff was accepted as a “Permanent Guarantee Employee” (“PGE”) who was allocated work on an irregular basis but was guaranteed that she would receive a minimum annual payment of $30,000: (see affidavit of Travis Breton Carlier, sworn 8 December 2009, at page 98(a) of Exhibit 3, hereafter referred to as “Carlier’s affidavit”).

23        When working as a PGE employee, the plaintiff deposes that she was not in the “lowest skill set of PGE employees”. Furthermore, the plaintiff deposes that but for “the injury”, she expected to obtain her forklift operator’s licence in 2005.

24        The plaintiff “believes” that from the time of her injury until 15 February 2007, she was totally incapacitated for work for various periods as a result of undergoing and recuperating from the various surgical procedures, and sometimes, as a result of particularly painful symptoms in her knee, and during those periods was paid compensation, annual leave and or accrued sick pay. On her various returns to work, the plaintiff performed lighter work on reduced hours but was forced to cease work on 15 February 2007 because of ongoing problems with her left knee: (refer generally, paragraphs 13, 17 and 21 of the first affidavit).

25        After her knee replacement and procedure on 29 August 2007, the plaintiff was “keen to get back to work as soon as possible”. In particular, at paragraph 25 of her first affidavit, the plaintiff deposes:

“… I was feeling the financial strain of not having a proper income by this stage. Mr Miller concluded that I would be able to resume work on or about 1 January 2008 on the basis that I worked restricted hours on limited days, undertaking work that did not involve prolonged standing, prolonged walking, repetitive lifting, and to avoid jobs involving twisting, squatting, climbing and moving over uneven ground. I had understood at the consultation in early November 2007 from what Mr Miller told me, that he would be communicating with the Second Defendant to tell them that I was ready to resume light duties on a part-time basis as from 1 June 2008.

I was further reviewed by Mr Miller in December 2007 and I told him that I had received no response about returning to work. In my presence he dictated a follow-up letter to the Second Defendant requesting that they organise light duties.

Dr Suka who was issuing my medical certificates issued a medical certificate in about mid January 2008 noting that I was fit to return to alternate duties as from 22 January 2008. …”

26        I refer to the reports of Mr Geoff Greenwood, physiotherapist, dated 21 July 2008 (page 158 of Exhibit 3), the report of Dr Suka, the treating general practitioner, dated 21 July 2008 (page 159 of Exhibit 3) and the report of Mr Russell Miller, treating orthopaedic surgeon, dated 11 November 2007 (page 34(a) of Exhibit 3).

27        In his report, Mr Greenwood states:

“Please be advised that Ms Bishop is able to return to work and is able to

perform the following duties.
DUTIES:

1.    Taxi driving

2.    Bus Driving

3.    R & D Clerical

4. Road side delivery

5.    Driving cars

6. SAP work office

7.    Occupational Health & Safety

Where required:

1.       Wharfie where required on wharf

Eg. Push button on loads

Undo loads (manual hands)

Hook work on wharf.

Ms Bishop is able to perform these duties on all shifts (day, evening and night).”

28        In his report, Dr Suka states:

“Tracey is able to do the following duties

1) Office work.
2) Clerical work.
3) Roadside delivery.

4)   She could work as an occupational health and safety officer and SAP work.

5) Driving the bus.

6)    Taxi driving for car shifts.

7)    As required on the wharf.”

29        In his report, Mr Miller states, in part:

“I believe it would be reasonable for Mrs Bishop to contemplate a return to work. I would suggest that she return to work on approximately 1 January 2008 and that she have work restrictions and limited hours. I suggest initially she should return to work for 3 x ½ hour days per week for a period of 4 weeks, followed by 3 x full days per week for 4 weeks, followed by 4 x full days per week for 4 weeks, followed by 5 x full days per week for 4 weeks. I suggest that initially her restrictions would involve no prolonged standing, no prolonged walking. I expect she would be able to operate a motor vehicle at that time. Her capacity for more vigorous duties is unknown at this stage.”

30        In part, because the plaintiff was keen to return to some type of work after her knee replacement, arrangements were made by the first defendant to have the plaintiff medico-legally examined by the orthopaedic surgeon, Mr Bruce Love, who examined the plaintiff on 21 February 2008 and 8 July 2008. In a report of 8 July 2008 (see page 20, Exhibit 3), Mr Love states, in part:

“My examination of her left knee reveals a well healed anterior scar. The range of movement was from zero to 110o. There was no particular tenderness, no instability and no other abnormality of note.

I am of the opinion that this woman is capable of returning to work accept (sic) that it is not practical for her to be asked for her to crawl around on her knees or to climb ladders. She says that there are other tasks at her place of work that she could do but these have not been offered to her. She nominated an activity such as driving cars on and off a ship is something that she would be capable of doing.

I am therefore of the opinion that this woman has had a good result from her left total knee replacement and she has been left with a mild disability but the disability is not so great from preventing her from doing all types of work but there are some tasks that require flexibility in the knee which are not within her capacity and will never be.

Essentially the current situation is [a] relatively stiff knee following total knee joint replacement, recognis[ing] that a normal knee will flex to 140o or more where a total knee replacement will only flex to 110o. She is not suffering from significant pain.”

(my emphasis)

31        Various meetings were held between the plaintiff (sometimes with her union representative) and representatives of the first defendant, wherein the plaintiff sought to return to some type of alternative duties with the first defendant. On 13 October 2008, the first defendant terminated the employment of the plaintiff on the basis that the plaintiff did “not have a capacity to return to … pre-injury duties and this incapacity … is …. ongoing”: (see page 54 of Exhibit A).

32        The first defendant arranged for the plaintiff to undergo a ‘so-called’ 130-week vocational assessment by IPAR Rehabilitation on or about 4 June 2008. In a report dated 17 June 2008, the representative of IPAR identified the following jobs as suitable for the plaintiff: barmaid; receptionist; filing clerk; occupational health and safety officer; truck driver and car park attendant: (see generally page 54 of Exhibit 3).

33        In a supplementary report from IPAR Rehabilitation dated 4 December 2009, various actual jobs were identified (together with wage rates) said to be “suitable employment” for the plaintiff.

Other Medical Evidence

34        Mr John Bartlett, an orthopaedic surgeon, medico-legally examined the plaintiff on 26 March 2009 at the request of her solicitors. In a report dated 27 March 2009 (see page 82 of Exhibit A), Mr Bartlett states, in part:

“4.

Ms Bishop has extensive scarring, muscle wasting and limited movement of the left knee as a result of her disability and subsequent surgery. She has a 105 degree range of movement (normal range of movement being 150 degrees).

5.

(i) She is permanently incapacitated for her pre-injury work as a waterside worker as she is confined to low-impact activities.

(ii) She is not totally and permanently incapacitated for all work.

(iii)	‘Suitable employment’ would be of a low impact nature. This would exclude prolonged weight bearing, heavy lifting, squatting, kneeling, agility or excessive use of stairs.
(iv)	The existing prosthesis may never need removal but it is very likely that the tibial polyethylene insert will require revision in 15 to 25 years from surgery.

. . .

7.

Further activity will be of a low impact nature and exclude running, jumping or similar sporting activities. She is also restricted from high impact loads, excessive weight bearing, excessive use of stairs or kneeling or agility.

. . .

8.

Work of a suitable low impact nature could be considered. I note that workcover has suggested six possible occupations. I would agree with possible work as a Receptionist or Filing Clerk or Occupational Health and Safety Officer. However my understanding is that work as a barmaid or truck driver or car park attendant would involved (sic) prolonged weight bearing and be unsuited to a person having a knee replacement arthroplasty.

. . . .”
(my emphasis).

35        Dr Robyn Horsley, an occupational physician, medico-legally examined the plaintiff on 24 August 2009. In a report dated 26 August 2009 (see page 108 of Exhibit A), Dr Horsley states that the plaintiff will most likely require revision surgery in ten to fifteen years. Furthermore, she states, in part:

“Ms Bishop is permanently unfit for her full role as a waterfront worker. The critical physical demands of such a role are beyond her capacity. She was able to participate in bus driving or taxi driving on the wharf three days per week for nearly eight months. Her capacity lies in this area. She has a disadvantaged educational background with Year 8 education and literacy issues. Her opportunities for redeployment into an office based environment are very limited. She has no computer skills. She requires further upgrading of skills to assist her to move into a more sedentary role. She has worked in the retail area in the past. … I believe that she would have difficulty returning to car driving as an occupation in anything other than a part time basis. Her ability to get in and out of a vehicle rapidly and repetitively would exacerbate her left knee condition.”

(my emphasis)

36        In a subsequent report dated 10 December 2009 (see page 123 of Exhibit A), Dr Horsley further states:

“Mrs Bishop, in my opinion has a potential capacity for work in the retail area of 15 – 20 hours per week. She would need a flexible employer. The role would need to involve minimal manual handling. Her dynamic standing tolerance is limited to 30 – 40 minutes.

I do not think that she can undertake the position of Car Park Attendant of a Gaming Consultant

Her role would need to involve customer service. Her role would need to allow her to sit for periods doing other tasks such as labelling etc.

Please note my other comments about potential taxi / bus driving on a similar part time basis.

She does not have the literacy skills for an office based environment.”

37        Professor John Hart, an orthopaedic surgeon, medico-legally examined the plaintiff on 14 November 2006. Such examination pre-dated the total knee replacement, and a reading of his report dated 12 December 2006 (see page 6 of Exhibit 3) would suggest that the purpose of the report was more to comment on future treatment of the plaintiff.

38        Mr Ian Jones, an orthopaedic surgeon, medico-legally examined the plaintiff on 10 August 2009 at the request of the solicitors acting for the first defendant. In a report dated 10 August 2009 (see page 28 of Exhibit 3), Mr Jones states, in part:

“This patient’s employability has been reduced by the effects of the left knee injury and the surgery undertaken. I do not think that she will ever get back to her former job as a waterside worker given the nature of her job.

This patient would be capable of sedentary type employment on a full- time basis where there is no requirement to squat, kneel, climbs stairs or ladders.

. . .

Ms Bishop was formerly employed as a barmaid and since her knee replacement has attempted to return to such work in her sister’s ‘pub’. This was unsuccessful due to the amount of squatting to access refrigerators.

Ms Bishop may be able to undertake the job as a receptionist but she has no typing skills.

I believe that she would be able to undertake some of the duties of a filing clerk although not if there was any degree of squatting or kneeling requires (sic). She may not be able to undertake duties of occupational health and safety if any stairs are required.

.”

where there [was] any degree of walking or stairs involved.

(my emphasis)

39        In a later report dated 18 August 2009 (see page 34 of Exhibit A), Mr Jones further states that the plaintiff would be incapable of performing work as a bar attendant or heavy truck driver. Further, he states that she may have the capacity to undertake duties of a car park attendant provided that there are no periods of extended walking or stairs involved. In particular, Mr Jones states the plaintiff–

“would be capable of undertaking the duties described as a receptionist and probably that of a filing clerk provided that there was no necessity of repeated squatting or kneeling to access files.”

40        I also refer to the latest reports from the treating doctors, Dr Suka and Mr Miller. In a report dated 1 November 2009 (see page 80 of Exhibit A), Dr Suka notes that the plaintiff continues to experience pain in the left knee on a daily basis requiring physiotherapy, hydrotherapy and gym work. In particular, he states:

“Prior to Tracey going back to work the pain in the left knee will have to be controlled. She will not be able to do any manual work. In her previous job at Patrick Stevedores she would have been able to drive a taxi or the bus. However I am not sure if she would be able to drive a public taxi or bus. She would be suitable for office work but her education and training may be a limiting factor. She is an outdoor person so I do not think she will enjoy working in an office. She could work as a barmaid but this would involve a lot of standing and I think this would aggravate the pain in her left knee. She could be trained as an occupational health and safety officer or a receptionist. However all these occupations are subject to her being pain free.”

(my emphasis)

41        In a report dated 2 December 2009 (see page 76 of Exhibit A), Mr Miller states, in relation to capacity that:

“My understanding is that this lady is not working. She has not been able to successfully return to work. She would have difficulty with work that involved prolonged standing, prolonged walking, twisting, turning, kneeling and squatting. She will have difficulty with work that involves repetitive bending and lifting. A return to work would be problematic due to her work related injuries.”

(my emphasis)

Cross-Examination of the Plaintiff

42        The plaintiff was cross-examined extensively about the work she undertook after her injury and prior to her termination of employment with the first defendant and in general, her capacity for employment. I note the following pertinent evidence:

(a)	That on her return to alternative duties on or after 21 June 2006, the plaintiff was driving a taxi bus picking up men from various ships and taking them to the front gates. She was performing such work eight hours a day for perhaps three or four days a week (T13, L6 – T14, L1);
(b)	Although she was allowed to get out of the bus and have a drink or go upstairs to the administration building, a large part of the eight hours was spent in the bus, although not always driving (T 14, L5-15);
(c)	In the spring of 2006, the plaintiff considered that she would have been capable of working five days, eight hours a day, performing such driving work until shortly before her knee replacement in June 2007 (T15, L7- 16);
(d)	The plaintiff is unable to use a computer keyboard but believes that she could “learn” (T16, L16-22);
(e)	The plaintiff cannot read or spell properly (T17, L14-15);
(f)	The plaintiff also performed “clerking duties” with the first defendant which involved “checking off” cars taken off ships and parked in designated areas. She worked eight-hour shifts and thought she could have done that sort of job (T17, L18-23 and T19, L8-10);
(g)	Although the plaintiff considered that she could perform various aspects of receptionist work (T19, L28 – T20, L4), she was of the opinion that she could not work for eight hours a day (T20, L13-17). When asked why, the plaintiff stated:

“Because well now I’m, even at home I’m resting probably four or five hours a day at home as it is with my leg. I feel that I have to have it put up or lay down. Actually, it’s not sitting, it’s lying down that I get the most comfort out of, the pressure of my leg. Yes, and the medication I take with the Endone, yes it’s always sort … it helps me with the ….”

“Q: What is the dosage of Endone you are taking?---
A: 5 mls.

Q: Daily?---

A Yes.”

(h) The plaintiff was taking Panadeine Forte and Tramal but was transferred off those drugs to Endone because of an allergic reaction. Furthermore, she ceased taking Digesics because of the risk of heart complications. She has been taking Endone for the last six to eight months (T26, L1- 11);

(i)      The plaintiff has performed bar work for her sister who owns a hotel at Willaura – probably four or five times – with the longest period being five hours, after which her leg became very sore, causing her to go to bed (T27, L11 – T28, L10 and T37, L5 and L13-38);

(j) The plaintiff was shown video film taken on 21 July 2009 and 3 November 2009 which revealed the plaintiff walking at or near shops with no apparent difficulty.

43        During re-examination, the plaintiff gave the following pertinent evidence:

(a)	The driving of buses and the clerking duties performed by the plaintiff are not “stand alone” jobs and workers are required to have other skills and perform other duties if employed by the first defendant (T31, L21 – T32, L2);
(b)	Even if the job was available five days a week, which it was not because it was only a fill-in job, the plaintiff would find performing work for that period of time “too hard now” (T33, L7-19);
(c)	The plaintiff’s left knee swells every day, which gives rise to pain, sometimes causing her to sit with her left leg extended which gives some comfort (T33, L25 – T34, L7).

Earnings of the Plaintiff and “Comparable Employees”

44        On the basis of the evidence before the Court, I set out a Table of the gross earnings of the plaintiff for the financial years ending 30 June 2004, 30 June 2005, 30 June 2006 and 30 June 2007. In looking at the Table, I am conscious that it is only the year ending 30 June 2004 (that is the year prior to injury) where such gross earnings are completely from personal exertion whereas the subsequent years are made up of gross earnings from personal exertion, compensation payments and/or holiday pay/long service leave.

45        I also include in such Table the earnings from two other employees of the first defendant referred to as “Comparable Earner 1” and “Comparable Earner 2”. I refer to Carlier’s affidavit (see page 98a of Exhibit 3) wherein he deposes, in part:

“4.	I have provided the solicitor for the Defendant with two sets of PAYG certificates of PGE employees for the financial years 2004 – 2008. … [These are ‘Comparable Earner 1’ and ‘Comparable Earner 2’]. …
5	It is apparent that the earnings of the PGE employees were higher for the financial year ending 2008. This is because it was a busy period, and there was always work available for a PGE employee, particularly those of a high skill set.
6	The Plaintiff had the lowest skill set of any of the PGE employees, and she would have been allocated work at a lower grade and paid at a lower rate accordingly. As a consequence, while it is possible that if the Plaintiff had continued working for the Defendant in her pre-injury capacity she may have received higher earnings for the financial year ending 2008 than for previous years, I do not believe such earnings would have been as high as other PGE employees.”

46        I also set out the Table of the earnings of “Comparable Earner 1” and “Comparable Earner 2”:

Fin Plaintiff’s 3% Comp Comp Earner Average of

Year	Earnings	Increases	Earner 1	2	Comps
2004	$44,184	-	$48,752	$65,486	$57,119.00
2005	$45,906	$45,509.52	$62,749	$57,589	$60,169.00
2006	$48,887	$46,874.81	$57,200	$57,537	$57,368.50
2007	$30,157	$48,281.05	$67,894	$62,956	$65,425.00
2008	$18,691	$49,279.48	$76,280	$77,335	$76,807.50
2009	-	-	-	-	-

Analysis of the Evidence

47        I find the plaintiff to be a witness of truth and refreshingly frank about her desire to return to work with the first defendant after her total knee replacement. Indeed, on occasion, the plaintiff made admissions against her own interests which causes me to have greater confidence in accepting her evidence in relation to pain, limitations and work capacity.

48        I am satisfied that the plaintiff suffered a compensable left knee injury arising out of or in the course of her employment on 27 or 28 March 2005. Furthermore, I am satisfied that such injury has resulted in some permanent impairment giving rise to physical consequences.

49        I refer to paragraph 8 of the third affidavit wherein the plaintiff deposes as to the various restrictions brought about by her left knee injury. Such restrictions include the inability to dance, play tennis and ten-pin bowl, and a lessened ability to enjoy gardening and walks as a means of keeping fit. Furthermore, as has already been described in these Reasons for Judgment, the plaintiff suffers pain and restriction of movement of her left knee and all doctors are of the opinion that the plaintiff is incapable of resuming all aspects of her job with the first defendant.

50        I also consider it a significant consequence that the plaintiff will be required to undergo revision surgery in the left knee at some time in the future.

51        I find that the plaintiff has discharged her onus in satisfying the narrative test in relation to the pain and suffering and loss of earning capacity consequences.

52 The critical issue in this matter is whether the plaintiff has also discharged her onus in satisfying s.134AB(38)(e) of the Act.

53        Paragraph (e)(i) requires the plaintiff to establish that, at the date of the hearing of the application, she “has a loss of earning capacity of 40 per cent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity, as prescribed by paragraph (f), necessitates a comparison of two matters:

(a)	the income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and
(b)	the income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”).

54        In both cases the income is limited to gross income from personal exertion and is to be annualised.

55        Paragraph (e)(ii) requires the plaintiff to establish that she will, after the date of the hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per centum or more”.

56        The first inquiry involves a determination as to what are the plaintiff’s “without injury earnings”. I have been assisted by the recent decision of Acir v Frosster Pty Ltd [2009] VSC 454, a decision of Forrest J, where, at paragraphs 158 to 179, His Honour discusses the concept of “without injury earnings”. Forrest J accepted, consistent with the Second Reading Speech, that:

“In respect of the three years after the injury, the earnings and/or capacity for earnings but for the injury will enable the court to have regard to the probable increases or decreases in earnings that may have occurred or the achievement of other employment opportunities within that time had the injury not occurred. …”

57        It is submitted on behalf of the defendants that the appropriate way to determine the “without injury earnings” of the plaintiff is to take her gross earnings for the year ending 30 June 2004 (that is the last full year prior to injury) and allow 3 per cent increments up to three years post-injury upon which a figure of $49,279.48 is reached. The defendants submit that although a 3 per cent increment is arbitrary, it is a reasonable way to determine such “without injury earnings”.

58        The defendants further submit that “Comparable Earner 1” and “Comparable Earner 2” are, in essence, not comparable employees to the plaintiff. In this respect, the defendants point out that the average earnings between “Comparable Earner 1” and “Comparable Earner 2” for the year ending 30 June 2004 is $57,119.00, which gives rise to approximately a 29 per cent differential between the earnings of the plaintiff for the same period. In that sense, a differential of 29 per cent should be maintained over the ensuing years leading up to the third year after injury.

59        The defendant also submits that the earnings of “Comparable Earner 1” and “Comparable Earner 2” for the year ending 30 June 2008 reflected a “busy period” and could not be said to fairly reflect “without injury earnings”.

60        The plaintiff submits in relation to the issue of “without injury earnings”, that:

(a)	It is not much assistance to the Court if there is a 29 per cent differential between the plaintiff’s earnings and the average earnings of “Comparable Earner 1” and “Comparable Earner 2” as it was not until October 2004 (the next financial year) that she commenced as a GWE and furthermore, she performed the function of a truck driver which attracted a higher income and she expected to obtain her forklift operator’s licence in 2005;
(b)	The year ending 30 June 2005, during which she grossed $45,906.00 is also not much assistance to the Court, bearing in mind that she did not become a GWE until October 2004 and that she suffered injury in March 2005, after which she was on and off work;
(c)	Senior Counsel for the plaintiff, consistent with the submission of Senior Counsel for the defendant, accepted that the year ending 30 June 2008 was, to use his words, a “bonanza year” and most likely does not “fairly reflect” her “without injury earnings” if she had still been employed at that time;
(d)	The plaintiff submits that the “without injury earnings” should be calculated on the average of “Comparable Earner 1” and “Comparable Earner 2” for the year ending 30 June 2007. The average amount is $65,425.00, which is said to be the “without injury earnings” and of which 60 per cent is $39,255.00;

61        After careful consideration, I am of the opinion that the “without injury earnings” for the purposes of this proceeding amount to $65,425.00 based on an average of the earnings of “Comparable Earner 1” and “Comparable Earner 2” for the year ending 30 June 2007. I do so for the following reasons:

(a)

I am of the opinion that it is inappropriate with too much speculation involved to merely increase the plaintiff’s earnings from 30 June 2004 by a 3 per cent increment over the relevant years. Furthermore, I am of the opinion that the year ending 30 June 2004 is an inappropriate base, as at that time the plaintiff had not been made a GWE. In passing, I also note that the difference between the earnings of the plaintiff and “Comparable Earner 1” for the year ending 30 June 2004 amounts to $4,568.00, which is only about a 10 per cent difference;

(b)

Given that the plaintiff was made a GWE in October 2004, her ability to drive trucks and her intention to obtain her forklift driver’s licence, I am of the opinion that it is reasonable to assume that she would have had comparable earnings to “Comparable Earner 1” and “Comparable Earner 2” for the year ending 30 June 2007. In making such a finding, I am also conscious of the attitude which the plaintiff has displayed to her work and the love of her job on the docks. This is best exemplified by the extraordinary efforts she made to resume some type of employment after the advent of her total knee replacement;

62        The second inquiry I have to determine is what the plaintiff “is earning or is capable of earning in suitable employment. “Suitable employment” is defined in s.5(1) of the Act and reads:

“Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following:

(a)	the nature of the worker’s incapacity and pre-injury employment;
(b)	the worker’s age, education, skills and work experience;
(c)	the worker’s place of residence;
(d)	the details given in medical information including the medical certificate supplied by the worker;
(e)	the worker’s return to work plan if any;
(f)	if any occupational rehabilitation service have been provided to or for the worker.”

63        The first defendant submits that the plaintiff, although incapable of resuming all aspects of her employment with the first defendant, has a capacity to perform work as a full-time receptionist, full-time filing clerk or administrative assistant consistent with various medical opinions and the vocational assessment undertaken by IPAR Rehabilitation.

64        The primary position of the plaintiff is that she is unfit for “suitable employment” but if fit, is incapable then of working any more than 20 hours, as suggested by Dr Horsley.

65        I find that the plaintiff is capable of some suitable employment. The plaintiff clearly demonstrated being able to work at least three days a week with the first defendant prior to her knee replacement and considered that she may well have been able to do five days a week if that had been offered to her.

I do point out that seemingly, both the driving the bus and the clerking job were only parts of other jobs and in that sense, probably could not be seen as “suitable employment” as discussed in Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230.

Notwithstanding, it does give some indication that the plaintiff is capable of a reasonable amount of work, more so when one reads the reports of the treating general practitioner and treating orthopaedic surgeons in and around early 2008. I tend to the view that such reports must be read with some circumspection as they were written at and around times when the plaintiff was clearly trying desperately to return to some work with the first defendant. In later reports, neither Dr Suka nor Mr Miller are quite as glowing in relation to her capacity for work.

66        I find that work as a barmaid, gaming consultant and car park attendant would be inappropriate as such work would require the plaintiff to be on her feet for lengthy periods of time which would be inconsistent with her work restrictions. Furthermore, bearing in mind the plaintiff’s educational level and her lack of computer skills, I am of the opinion that it would be unrealistic to consider the plaintiff capable now or even with re-training to become an occupational health and safety officer.

67        I am of the opinion that the plaintiff has some scope for resuming work as a receptionist and perhaps more particularly as a filing clerk, although I am of the opinion that given the ongoing restrictions in her left knee, the pain that she undergoes and the taking of Endone, such work would be limited to part- time work. I also have some doubts as to whether or not the plaintiff would have the mental acuity to be involved in any reasonably sophisticated office environment, although it is to be noted the plaintiff had a positive and cheerful disposition.

68        I make the finding consistent with the evidence of Dr Horsley, that the plaintiff would have a capacity to work in the order of 15 to 20 hours per week in a clerical or perhaps office environment. I note that in a report from Flexi Personnel dated 28 September 2009 (see page 117, Exhibit A), the following earning rates are recorded for receptionist and filing clerk:

(a) $16.13 for first 6 months

Receptionist $16.40 after 12 months.

(b) Filing Clerk
$15.59 for first 6 months
$15.72 for 6 months
$15.86 after 12 months.

69        Of course, these rates are an hourly rate. I also refer to the IPAR Rehabilitation supplementary report dated 4 December 2009 wherein it is recorded the following wage rates:

(a)	Receptionist - $690 average weekly earnings
(b)	Filing Clerk - $730 average weekly earnings.

70        If one takes even the highest figure of $730 per week for a filing clerk and allows a 50 per cent capacity, the annualised amount is ($730 multiplied by 52 multiplied by 50 per cent) equals $18,980. Such sum is less than 60 per cent of the “without injury earnings” ($39,255) and accordingly, I find that the plaintiff has satisfied the requirements of s.134AB(38)(e)(i) in that she has a loss of earning capacity of 40 per cent or more as at this date.

71        Furthermore, I am of the opinion on the available medical evidence, and in particular, bearing in mind the need for revision or surgery to the left knee, that the plaintiff will, after the date of this decision, continue “permanently” to have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more.

Conclusions

72        Pursuant to s.134AB(16) of the Act, I grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of “pain and suffering” and “pecuniary loss” in respect to a left knee injury suffered on or about 27 or 28 March 2005.

73        I will hear the parties on the question of costs.

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