Bruce Farrell v Debra Francis & Anor (No 2) (WorkCover) - [2015] VMC 18

IN THE MAGISTRATES’ COURT OF VICTORIA

AT MELBOURNE

WORKCOVER DIVISION No C 12632127

BETWEEN:

BRUCE FREDERICK FARRELL Plaintiff

-and-

DEBRA ANNE FRANCIS

First Defendant

PATRICK STEVEDORES HOLDINGS PTY LIMITED

Second Defendant

MAGISTRATE: GINNANE

WHERE HEARD: MELBOURNE

DATE OF DECISION: 12 JUNE 2015

CASE MAY BE CITED AS: FARRELL v DEBRA ANNE FRANCIS AND PATRICK STEVEDORES HOLDINGS

REASONS FOR DECISION (No. 2)

Catchwords: Accident Compensation Act 1985 -whether plaintiff suffers from no work capacity – plaintiff’s credit in issue – extent to which prior dishonesty infects plaintiff’s testimony – test to apply in considering whether suitable employment established

APPEARANCES:Counsel Solicitor

For the Plaintiff Mr Makowski William Winter

For the First Defendant Mr Gourlay Minter Ellison

For the Second Defendant Ms Gold Herbert Geer

HIS HONOUR:

Introduction and background

The plaintiff Bruce Farrell has had an unfortunate life in many respects. I accept that he has undergone more than a dozen operative procedures over nearly two decades including knee reconstruction, a total knee replacement in 2004, a partial and then total revisions in 2009 and 2012. He has suffered a period of imprisonment for obtaining financial advantage by deception involving the receipt of weekly payments under the Accident Compensation Act 1985 (the Act) for incapacity during periods of time that he was gainfully employed. The amount he obtained totalled $136,979.60 over a period from 1994 to 2008.

It is not contested by the defendants that the plaintiff is incapable of performing his pre injury employment working on the Melbourne’s Docks. It is not disputed either that the injuries the plaintiff suffered are compensable injuries. However, the defendants do argue that suitable employment exists and the extent of the plaintiff’s asserted limitations and restrictions to undertake suitable employment should be rejected. In short, the defendants submit, that I should be satisfied that the plaintiff is capable of suitable employment.

The Suitable Employment

The plaintiff has been the recipient over time of a number of vocational assessments. One of them and, in the context of this hearing, the most significant is a report undertaken by Co-Work Pty Ltd, a Vocational Assessment company that provided a report to the solicitors for the second defendant dated 16 August 2013. The plaintiff was interviewed for the assessment that was undertaken by Jo-Anne Bryant, Occupational Therapist. She concluded that:

After considering Mr Farrell’s vocational profile and his residual physical capacity, I have assessed the following occupations as potentially suitable for him:

Property Manager

Real Estate Agent

Retail Supervisor (Hair and Beauty Salon)

The defendants say that these jobs represent real employment opportunities available to the plaintiff. They are not fanciful positions or constructs of different skills cobbled together to give the impression of jobs.

The defendants say that the plaintiff’s arguments that he does not have a capacity to perform suitable alternative employment is very much dependent on the Court accepting his evidence as honest including his accounts of pain and limitations expressed to various doctors and specialists in the past. The defendants submit that on balance I should not accept the plaintiff’s evidence as honest including his accounts to doctors because of his many lies and pattern of dishonesty over many years that culminated with his conviction and imprisonment for dishonesty offences in obtaining weekly payments of compensation for incapacity under the Act when in fact for much of the time he was gainfully employed on the docks.

The defendants’ assault on the plaintiff’s claim is an understandable and attractive argument. However, in my opinion, it is for this very reason that I think it is necessary to analyse the matter with care. Whilst I accept that a man of dishonest character warrants particular scrutiny when testifying about matters that depend exclusively or very largely upon an acceptance of his word, it does not follow that a man of dishonesty and questionable character cannot suffer a genuine and compensable injury within the meaning of the Act or that in consequence of the same be subjected to real restrictions. I have approached the matter keeping in mind the following principles:

(i) First, proved dishonesty in claiming compensation of weekly payments under the Act invites greater caution in any subsequent application made by a plaintiff;

(ii) Second a man convicted of dishonesty may nonetheless find himself having suffered an injury that attracts a right to benefits under the Act;

(iii) Third, proved dishonesty whether arising under the Act or otherwise is not a disentitling factor under the Act.

I have also endeavoured to consider the evidence in light of the following statement by the Court of Appeal in Dordev Cowan & VWA [2006] VSCA 254 at [14] (omitting citations) and relied on by Mr Gourlay of counsel for the first defendant that:

It is not surprising, however, that the appellant’s credit was the principal focus in the case, given that the respondents contended that she was, in effect, fabricating or otherwise impermissibly exaggerating the effects of the injury on her in terms of pain and suffering and ability to work. It is plain enough that the appellant’s credibility was relevant not only to the question whether her own evidence in that regard was to be accepted, but it was also relevant to the reliability of the medical evidence on which she relied to establish her case, because the opinions of her specialists were essentially dependent on the credibility or reliability of her account of the history of the injury and its effects on her. This was well recognised by the learned trial judge. As I have noted, after a comprehensive analysis of the evidence, his Honour concluded that the appellant was not a credible witness and that she did not give to the medical practitioners an accurate account of the history of the injury and of its effects on her in terms of pain and suffering and disability. These findings were, I think, plainly open to his Honour and were not challenged by the appellant. It follows that his Honour was entitled to take the view that he could accord only limited probative weight to the evidence.

The previous hearing

In my earlier written decision I refused the plaintiff’s application for a referral to a Medical Panel because the factual background was vexed and open to conjecture. I did not believe the matter should be referred to a panel but instead that the question of capacity should be determined by a Court as part of contested litigation. Accordingly, following publication of judgement refusing the plaintiff’s application for referral, the matter came back for a final hearing and determination of the plaintiff’s claim for relief. I asked the parties’ if they held any objection to me hearing the claim given my determination in the previous matter and they did not.

The uncertain chronology

I accept that the plaintiff suffered an injury as a result of a slip on 29 April 1994 when he was working as a hairdresser. He was working as a hairdresser with Debra Ann Francis, the first defendant. The slip caused injury to the plaintiff’s right leg, right knee and caused pain, together with anxiety and distress. The plaintiff made a claim for compensation (the first claim for injury). The first claim was accepted. The plaintiff became in receipt of weekly payments and medical and like expenses under the Act.

The plaintiff made a further claim in 1997 on the first defendant for consequential injury to the left knee as a result of the slip in 1994 (the second claim for injury). The second injury claim was accepted.

On 1 October 2008 during a period of employment with the second defendant the plaintiff was driving a transport vehicle on the docks when it overturned and he suffered injury. The plaintiff suffered injury to his spine and fractures together with depression. The claimed injuries were particularised at paragraph 11 of his Amended Statement of Claim) On14 October 2008 the plaintiff made a claim against the second defendant in respect of the third injury. The claim was accepted and thereafter he was paid weekly payments of compensation together with medical and like expenses in accordance with the Act (the third claim for injury).

On 20 February 2009 the first defendant terminated the plaintiff’s weekly payments of compensation. The reasons were expressed in summary form as follows:

The plaintiff had returned to work;

The plaintiff’s incapacity no longer materially contributed to or there not being an injury arising out of or in the course of the plaintiff’s employment;

The plaintiff having obtained payments fraudulently

By notice dated 6 December 2010 the second defendant terminated the plaintiff’s weekly payments of compensation and the notice it provided to the plaintiff of this decision identified the following reasons for termination:

The plaintiff’s second entitlement period had expired;

Weekly payments had been paid or were payable to the plaintiff for a total of 130 weeks;

The plaintiff has a current work capacity or if he labours from no work capacity then such a situation is not likely to continue indefinitely

On about 9 July 2012 the plaintiff served on the second defendant a further claim for compensation arising from the third injury seeking reinstatement of weekly payments and medical and like expenses on the basis of a total incapacity for work from 24 March 2012. By notice dated 31 July 2012 the second defendant rejected the plaintiff’s claim for on the same basis that it had earlier, namely that weekly payments had been paid or were payable to the plaintiff for a total of 130 weeks and that the plaintiff has a current work capacity or if he labours from no work capacity that such situation is not likely to continue indefinitely

Also on 9 July 2012 the plaintiff served on the first defendant a further claim for compensation with respect to the first and second claim for injury and seeking reinstatement of weekly payments of compensation for total incapacity for work as from 24 March 2012 and medical and like expenses. The second defendant by notice to the plaintiff dated 13 August 2012 rejected the plaintiff’s claim on the basis that there was no new injury arising out of or in the course of the plaintiff’s employment.

The plaintiff’s integrity and honesty is the subject of attack

The plaintiff conceded that he had given inaccurate histories to various medicos over the course of many years about matters relevant to his work history. He was however, adamant that he did suffer injuries and he laboured from their ill effects despite continuing to work for periods of time whilst receiving payments based on incapacity.

It is not the fact of the plaintiff having suffered injuries that lies at the heart of the resolution of the case, but the effects of the plaintiff’s injuries on his capacity for current suitable employment.

Both in the hearing on the question of referral to a Medical Panel and in this hearing, the plaintiff sought to draw a line in the sand regarding his dishonesty. Mr Makowski of counsel for the plaintiff acknowledged that the defendants attack on the plaintiff’s character and integrity in the circumstances of the case was understandable but he submitted that following on the neck injury the plaintiff sustained with the second defendant in 2008, he began to give accurate accounts or, to put it bluntly, to tell the truth.

Mr Makowski submitted that ultimately the matter resolved to a question of fact for me to determine if I was satisfied on the balance of probabilities that after 2008 the plaintiff’s account of his work history and his physical and mental capacity was an honest account and, if I determined that it was, then the question became whether the evidence led by the plaintiff supported his contention that he lacked a capacity to perform suitable alternative employment. I agree with Mr Makowski’s analysis.

Mr Makowski submitted that in order for the plaintiff to pursue a serious injury application proceeding in the County Court of Victoria for the neck injury suffered in 2008, it was necessary for him to establish that the injury was suffered in the ‘course of employment’ and therefore he had a genuine interest from this point in time in providing an accurate history of his employment. He submitted that this is what the contents of two affidavits made in support of that application were directed at achieving. As will be seen, there is a serious question agitated by the defendants about the honesty of the accounts deposed to by the plaintiff in the affidavits or of his evidence to this Court on certain matters raised in the affidavits.

Mr Makowski furthermore submitted that in recent times the medical evidence is largely to common effect and save for the question of capacity the medical evidence accords with the evidence given by the plaintiff that his symptoms became worse after he underwent further surgery in April 2012 and that since this time he has deteriorated. Mr Makowski also noted that the recent medical evidence has been given in the full knowledge of the plaintiff’s prior conviction. For example, Mr Simm, Orthopaedic Surgeon who saw the plaintiff for his neck, in a report dated 21 May 2012 noted that a history taken by him from the plaintiff in the past was ‘incorrect and incomplete’.

Mr Makowski also contended that the plaintiff’s account of pain is consistent with a stress fracture he suffered more recently and that is evident in radiology and commented on by doctors such that the plaintiff’s account of pain has an objective basis and is not purely dependent on a self assessment or account of same by the plaintiff. Thus, it was submitted that to the extent the plaintiff’s credibility is impinged upon by his proved dishonesty this deficiency should be subordinated to the extent of objective evidence.

Revisiting relevant events

Despite a history having been set out in my previous decision, it is appropriate that I repeat a number of relevant facts.

The plaintiff was born on 13 October 1955. He worked for a period of time as a hairdresser with the first defendant. He conducted his own business as a hairdresser for a time, ‘hiring a chair’ in a salon. The plaintiff has also worked on the docks with the second defendant Patricks and before that its corporate predecessor Melbourne Stevedores and Toll.

In 1994 he injured his right knee with the first defendant. He became in receipt of weekly payments of compensation under the Act. He remained in receipt of payments for many years. He underwent a number of surgeries and reconstructions during this time and on some occasions during these periods of time his incapacity would have been genuine. The written records suggest that the plaintiff returned to work in 2000. However he continued to be certified by his then General Practitioner and continued to receive weekly payments.

In 2006 the plaintiff appears to have commenced employment as a casual or part time stevedore however he continued to claim and receive weekly payments of compensation. The plaintiff was eventually found out and he was prosecuted. He was convicted in 2011 and served a term of imprisonment. He was released in March 2012.

Prior to the plaintiff’s fraud coming to light, and in October 2008 while working on the docks with the second defendant, he fractured discs in his cervical spine. He had been working as a forklift driver at about this time. It appears that he was driving a vehicle for use on and around the docks when it tipped over with the result that the plaintiff fractured his spine. Following on from this injury, the plaintiff had need for neck surgery.

In 2009 the plaintiff was required to undergo a total right knee replacement carried out by Mr McQueen.

While incarcerated, the plaintiff experienced problems with the effects of his right knee surgery. Surgery needed to wait He said in his evidence that there had been deterioration.

While serving his jail term the plaintiff undertook a number of duties. He served as a billet to the prison’s General Manager. In addition he undertook some short courses including that of a barista. He said that he is somewhat out of touch with this skill. He undertook a Fist Aid course and a Drink Driving Course. He said that these courses required only passive involvement on his part and really he did little more than to attend, remain seated and take notes. A sedentary attendance it might be thought.

The plaintiff’s work with the General Manager of the prison occupied him for about 3 days per week and for about 3 or 4 hours a day.

The plaintiff also undertook some football goal umpiring whilst serving his prison term. He said it was limited in its exertions and he said that he effectively umpired whilst seated on the back flat tray of a utility vehicle.

The plaintiff also undertook a TAFE computer training course in Richmond. He said that the course was basic and ‘next to worthless’.

In terms of a description of the work the plaintiff did on the docks other than forklift driving the plaintiff said that he performed clerical work and that this accounted for approximately 10 to 15% of his duties. He said that it involved matters as diverse as checking off cargo on ship arrivals and using a clicker to keep an accurate tally of cars arriving. He also worked ‘under the hook’. The plaintiff’s evidence of the amount of time he was occupied by clerical work varied over the course of his cross-examination.

The period and extent and nature of the plaintiff’s employment prior to 2000 is questionable. Whilst I am satisfied on balance that in 2000 the plaintiff undertook a return to work on the waterfront as a stevedore, it in not clear whether it was on a casual basis or was part-time work and neither is it clear what the length of time of his engagements as a casual or a part-time worker were. The duties the plaintiff carried out are also open to debate otherwise than having performed clerical or administrative duties.

The state of the evidence does not permit me to make detailed findings of fact about the work performed by the plaintiff prior to 2008. The attempt to do so was not assisted by the plaintiff denying familiarity with or knowledge of a resume detailing his work history (Exhibit D1). Later on however under cross-examination he revised his evidence and said instead in regard to the resume, that he had ‘maybe read it previously’. He maintained in any event that the document was prepared by someone else as part of the process of the transmission of his employment to the second defendant. He said was not concerned enough to correct any errors in it such as the recording of the plaintiff having worked on the docks as a stevedore since 1996.

In my previous decision I concluded that there are many periods in time in issue in which it could be thought that the plaintiff worked part time or full time, did a little or did a reasonable amount of clerical work, could operate trains and cranes or only cranes but not trains and had restrictions on his capacity or laboured under no restrictions. At times as well in the course of the plaintiff’s evidence there is a suggestion that his employment on the docks was intermittent and his work was not demanding because he was ‘protected’ by allies who ensured he was provided with light duties and yet on other occasions the plaintiff characterised the work he did was as ‘heavy and physical’. Wherever the truth of the matter lies, I cannot forget that it was work performed at times when the plaintiff was falsely obtaining certificates of incapacity and was receiving tax payer funded benefits to which he was not entitled.

The period of dishonesty

For period 4 July 1994 to 1 September 2008 the plaintiff furnished certificates for total incapacity. He received weekly payments on this basis although during this period he was working.

I have already referred to the fact that the plaintiff was untrue in a good deal of the account given of his history to doctors throughout the period of time he was in receipt of weekly payments. He admitted as much in his evidence before the Court. His account to Dr Grant, psychiatrist on 18 January 2008 was false when he said that he had not worked ‘in any capacity since 1994’. His account of history to Mr Michael Shannon orthopaedic surgeon on 23 January 2006 in relation to his knees is questionable. He was asked about a football injury and said he could not recall it. He said that after he had undergone an anterior cruciate ligament reconstruction he had ‘done virtually no work, although he tried to go back to work on several occasions, but only lasted for a day or two’. This was false.

The plaintiff was seen by Mr O’Loughlin, Orthopaedic Surgeon on 7 March 2006 and written report followed. He gave only a partial work history, telling Mr O’Loughlin that he had not worked as a hairdresser for 12 years but not mentioning his evident capacity to do other work or making mention that he was working.

Post October 2008

An examination of the material put before me by the parties reveals that the plaintiff adopted a marked change in the account he gave to doctors after October 2008. From this time on he acknowledged that he had been able to work fulltime during periods of certified incapacity and that his past accounts to the opposite effect were false.

The plaintiff was questioned in detail by counsel for the defendants about the contents of two affidavits deposed to by him and filed in the County Court of Victoria in support of a serious injury certificate for common law damages stemming from the injury sustained to his neck. Mr Gourlay suggested to the plaintiff that his accounts in the affidavits are incompatible with his viva voce evidence before this court. Ms Gold, counsel for the second defendant submitted that either the affidavits were false or the plaintiff’s evidence before this Court was false. The first of the two affidavits deposed to by the plaintiff describe positive functioning prior to his neck injury in 2008. This is a very different account to the plaintiff’s evidence of ongoing and significant issues with his knee and the marked effect it has had on his functioning. For example, at paragraph 31 of the 14 May 2012 affidavit, the plaintiff deposed ‘I state that my left knee is in good shape and causes me minimal symptoms’. The plaintiff was challenged about this and other matters deposed to by him, such as his expressed hope to get back to swimming referred to at paragraph 61 of his affidavit sworn 6 December 2010 which he conceded was untrue, as in truth there had not been any past occasion of swimming to which to return. The deposition by the plaintiff that he had capably worked on the docks with heavy machinery is also unreliable. Also in the first affidavit at paragraph 9, the plaintiff deposed that apart ‘from my knees, I state that I was otherwise in good physical state and that my mental health and psychological condition was stable’. At paragraph 10 the plaintiff deposed that, he ‘was able to undertake all activities of daily living, and I was able to return to heavy work with [the second defendant up until the time that I sustained the injury’.

I am not satisfied that the resolution of the matter of the assessment of the plaintiff’s current capacity is as simple as Mr Makowski would have it, that is, by looking at a history given prior to the neck injury in October 2008 and putting it to one side in preference to the subsequent history, when there are questions regarding the integrity and reliability of matters relied on as part of the plaintiff’s later history. I also reject as unsound the plaintiff’s submission accounting for the differences in the matters sworn to in the two affidavits earlier referred to by reason of the difference in the nature of the legal redress being sought at any particular time by a plaintiff. Solicitors have solemn obligations when preparing documents for use in court. Facts should not be contorted depending on the path of legal redress being pursued at any given time by or on behalf of a plaintiff.

The admissions in affidavits and the other discordant facts in the evidence may have impact on the plaintiff in another place but I need to consider if their sum effect is to impeach the plaintiff’s application as it relates to his injuries and a capacity for suitable employment and any entitlement to reinstatement of weekly payments.

Assessing the plaintiff’s credibility

It is true to say that I was not particularly impressed by the plaintiff. In the course of the hearing and when subject to cross examination he remained reluctant to admit his falsehoods prior to 2008. He appeared to regard the fact of his conviction as having drawn a line in his past and that it should have nothing to do with his current predicaments. On several occasions in the course of cross-examination he said there was ‘still a good deal of truth’ in the matters he complained about prior to 2008. The truth as best as I can judge the matter is that the plaintiff was suffering the effects of a genuine injury in 1994 and 1997 but he was not restricted in gainful employment for a substantial period of time despite his assertions to the contrary and his receipt of payments on the basis that he was.

In cross examination by Ms Gold the plaintiff was also confronted with his past dishonesty. The plaintiff exhibited considerable resilience and dexterity in the efforts he brought to bear to distinguish and justify his dishonesty and yet when questioned as to why he had made false statements to doctors the plaintiff’s response were remarkably lacking in memory. He left me with an impression that he was feigning a lack of comprehension or understanding of many questions asked of him and especially in relation to straightforward questions asked that confronted his past dishonesty.

The plaintiff’s past dishonesty makes me approach his evidence on matters of contention and that depend on self appraisal of pain and ongoing psychological effects that he says also impinge his capacity to perform suitable employment with caution in the absence of clinical evidence to provide support for the plaintiff’s testimony. However, the underlying caution I bring to the matter in relation to the plaintiff’s honesty does not mean that his evidence should be discarded because of his previous offending. It would be wrong of me to treat the plaintiff’s previous bad character as determinative of a resolution of his capacity for suitable employment and it is more useful to assess the suitability of the identified jobs in light of the language of s 5(1) of the ACA that directs me to have regard to “the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker”. That definition is sufficiently encompassing as to allow me to have regard to and give weight where appropriate to the plaintiff’s previous conduct.

As mentioned already the medical evidence prior to the 2008 injury is questionable not as to injury itself but rather its significant or remnant effects on his capacity to undertake suitable employment. However, I also take into account that much of the earlier work that the plaintiff performed on the docks while in receipt of payments when supposedly incapacitated by the effects of the 1994 and 1997 injury was undertaken by a much younger man than today and of course prior to the 2008 neck injury. I think therefore it is reasonable of me to have regard to the fact that any progression by way of deterioration of the plaintiff’s injuries and his subsequent surgeries since the offending have occurred in a different environment to the past. The plaintiff who tolerated injury and engaged in work while obtaining payments dishonestly is plainly an older man and a physically more fragile man with a further injury than was the offender of past years.

Therefore, whilst recognising the plaintiff’s capacity to lie, a relevant consideration may be whether such a propensity has been curtailed or overtaken by real and genuine restrictions in relation to the knees and the neck and if such is the case, whether objectively assessed, these preclude him from suitable employment.

The measure of capacity and the method of assessment

The plaintiff is aged 60. He receives income support by virtue of a disability support pension. He is on a suite of medications that include medications for pain management and depression and anxiety. He said he does not own a car and that he has no confidence in his physical abilities to drive in such a way that in the event of an emergency he could respond sufficiently so as to protect himself or other road users. He said he has tried to drive but has abandoned it. The plaintiff’s licence was disqualified for the period of five years by the Court in 2008 a matter only grudgingly conceded by the plaintiff. Consequently even had he been capable of driving, he was unable to do so until at least November 2013. Despite the querolusness of the plaintiff, I accept he does not drive.

The plaintiff said that his social life ‘has gone’. He said he one enjoyed riding bikes and had been a member of the Albert Park Yacht Club. The plaintiff said that he finds simple activities of daily living such as bending his head and his neck forward in order to tie up his shoes laces as extremely difficult. He said that he had once upon a time been an avid reader but since 2008 his concentration has been adversely affected and that it is ‘not what it used to be’ and that his capacity to read for pleasure has been markedly reduced. He said he once had ‘a considerable library’.

The plaintiff gave an account in his evidence of the current status of his knees and arms. He said that his right knee is ‘bad’. He said there is a lot of pain and swelling and that it has worsened since a knee replacement surgery in 2012.

The plaintiff said that he ‘gets a lot of numbness and tingling from the elbows down’ and that this is a sensation he experiences in ‘both arms’. He said that this sensation is something that commenced after 2008 ‘when I broke my neck’.

Ms Gold took the plaintiff to a history of his employment going back to his days in retail after he left school. He agreed that he had worked in retail with his father for about 10 years after leaving school. He said that he was good at sales and liked fashion. He said he liaised with suppliers. He also said he worked for “Richards Fashion” for two years and it was similar to the work he performed in retail with his father. The plaintiff also worked for a time at Alexander’s menswear in Richmond He had a period of living in Queensland and in 1980 he returned to Melbourne and commenced work as a hairdresser in Blackrock.

He had a left knee strain as a result of football accident in 1984 although initially he said he had no recollection of the matter but later said he did have an injury to his left knee in 1984. His affidavit in the County Court referred to a strain injury to the left knee as a result of football. In 1990 he travelled to Broadbeach Queensland working as a casual hair dresser. He said that after surgery to the right knee following the fall in April 1994, problems with the left knee commenced. He had a left knee reconstruction in 1996. He had a half left knee reconstruction in 2002. He subsequently had a left knee reconstruction in 2003.

Ms Gold questioned the plaintiff about the extent of his professed level of capacity. She quizzed him about his ability to be ambulant and to carry weights. He accepted that he walked from his home to a tram stop and this took in the order of 10 minutes. He agreed that he carried carries bags on the tram or on his walk.

The plaintiff was asked about vocational and like course he had participated in. He said that he could not recall if a computer course he undertook in Richmond was undertaken occurred before his neck injury in 2008. He did undertake another course in relation to computer use in 2011 conducted in North Melbourne. He said the course operated from a period of about three weeks he was required to attend one day per week.

The plaintiff was also asked questions about any steps he initiated in order to be licensed by Work Safe to perform high risk work. This is a type of work for which a licence is required. The plaintiff was asked why it would be given his claimed level of restriction and pain that he applied to reissue his licence on 30 September 2011. The plaintiff said that this was done whilst he was at prison as part of a process undertaken to prepare him for his release and was not of his doing. Miss Gold suggested to the plaintiff that he would only have pursued the licence renewal if he had intended to work in related employment. The plaintiff said, ‘I am not sure about that’. I think on balance given the plaintiff’s injury resulting from the 2008 accident, the more likely explanation is that of the plaintiff.

Ms Gold also questioned the plaintiff about the extent and periods of time that he worked with Melbourne Stevedores (a predecessor to Patrick’s). She reminded the plaintiff that he had said that he had worked on and off from about 2000 and before that with Melbourne Stevedores since the late 1990s. She pointed out that in his resume it refers to employment Melbourne Stevedores since 1990. The plaintiff said resume is not accurate on this point. He said it was in the late 1990s that he commenced employment with Melbourne Stevedores. He estimated that he was employed with them for a period of two or three years at most. He said he worked with them until they went broke. He said he worked with them at Victoria Dock, ‘working under the hook’. The anomalies could be as readily explicable for inaccuracies innocently made than deliberately and in any event the probative effect of the discrepancy was not apparent otherwise than to credit and if that be so, the effects are tangential.

Miss Gold cross-examined the plaintiff extensively in relation to the disconformity in his evidence of an incapacity to undertake suitable employment by reference to the fact that prior to the injury sustained in 2008 the plaintiff, apparently contrary to the knowledge of Dr Gamboni, was working and yet was taking a higher doses and a more extensive suite of medication that he presently does.

The plaintiff was asked why he regards himself as lacking in capacity to undertaking suitable employment due to physical restrictions given he travelled to Switzerland in December 2013 and, according to a report by Dr Fisher, he had walked around a good deal and enjoyed his vacation. He agreed that he had enjoyed the vacation. He said however that he had been fortunate enough to travel in a business class seat to Europe and he had the benefit of particular footwear that he found helpful as he navigated his way around while walking. I think the fact of a capacity to undertake a vacation is not commensurate with a capacity to undertake suitable employment.

The plaintiff agreed with Ms Gold and Mr Gourlay that as regards his complaint of ongoing and chronic pain, it was necessary to accept his word on the truth of the assertion.

The psychological overlay

An aspect of the plaintiff’s presentation and incapacity to undertake suitable employment is due not just to physical limitations resulting from the 2008 injury but also his mental state. The plaintiff is variously described as labouring from poor concentration, anxious thoughts, anger and irritability. He said that some of these characteristics were not as prevalent now such as anger. The plaintiff said that his sleep was disturbed and he could manage only about 4 or 5 hours sleep a night.

The plaintiff referred to reports from Dr David Morell, Clinical Psychologist that covered the period 2012 to 2014. In the second of 2 reports dated from October 2014, Dr Morell wrote that the plaintiff did not have capacity to undertake the job options identified in the Co-Work Assessment because, ‘each of the job is presented require a level of physical capacity and emotional stability given the information provided your client does not have and for which I believe he has been informed he requires ongoing treatment. Associated with the physical restrictions his psychological state would also act as a barrier to gaining and maintaining the jobs described’.

Ms Gold directed the plaintiff to the report made by Dr Chris Grant dated 18 January 2008 in which the very symptoms relied on by way of present complaint were complained about to Dr Grant at a time however in which he was working and dishonestly receiving payments. This understandably calls into question the extent to which any alleged psychological injury should be regarded as impinging on the plaintiff’s capacity to undertake suitable employment. Mr Makowski relied on the fact that the second defendant has been paying reasonable medical and like expenses for the plaintiff and this includes anti depressant medication and that I should treat this as admission of the type addressed in Ansett v Taylor [2006] VSCA 171. I disagree. I am not satisfied that any psychological sequelae inhibit the matter of capacity for suitable employment.

The Medical Evidence

Mr Makowski submitted that all of the medical evidence was relevant. There was a significant amount of medical evidence and it has been necessary for me to read it all in order to bring my own view of its relevance and application to my decision making. One of the consequences of the approach taken by the plaintiff was that I did not have the benefit of any submissions on much of the medicine especially the old reports. Self evidently, not all the medical evidence produced is relevant. As part of the mandatory overarching obligations under the Civil Procedure Act applicants are bound to present their evidence to the Court in a comprehensive and comprehensible manner.

Dr Ian Chenoweth was the plaintiff’s general practitioner and the plaintiff produced reports dated covering the periods February 2009 to June 2013. The early reports relate to account and diagnosis following on the accident on 1 October 2008. In 2009 Dr Chenoweth diagnosed ‘severe osteoarthritis of the right knee’ and in February 2009 assessed this as ‘a more disabling pain than the neck pain at present’.

Dr Nadine Fisher became the plaintiff’s General Practitioner in mid 2013 following on the cessation of practice by Dr Chenoweth the plaintiff’s former treating doctor. By a report dated 18 February 2014 Dr Fisher recorded that:

Mr Farrell has not driven since his neck injury sustained on 1 August 2008.
Physically he has trouble swivelling his neck, and feels that is unsafe to drivers cannot see the whole of the road.

He attempted to drive in December 2013 and had to abandon the attempt as it felt too unsafe.
In addition he has developed severe anxiety problems and suffers from agoraphobia. He cannot manage to be with a lot of people.

At present is able to travel short distances in a tram-up to 2 to 3 km.

Dr Fisher reported on 4 March 2014 that:

Mr Farrell has no capacity for preinjury duties. His previous work as a hairdresser, and then as a stevedore, are no longer within his physical capacities. He is unable to stand for any length of time, walks with difficulty, and cannot drive due to a combination of physical and psychological factors.

In a report dated 14 October 2014, Dr Fisher among other matters commented on the plaintiff’s medications and their effect and his suitability for future employment and wrote:

It is hard to assess whether Mr Farrell has side-effects from this medications he has been on them for so long. However I am certain that they contribute to his poor memory and lapses in concentration. In addition it is highly likely that he has developed a dependency on his analgesics.

Unfortunately I do not think that Mr Farrell has any realistic prospect of future employment, due to his physical and psychological disabilities. He is a very personable and affable man, with many friends, and would be ideal in the hospitality industry IF his social anxiety eases. HOWEVER his problems with knee pain means he cannot stand for extended periods and that such a job would be physically impossible for him. He scarcely drives because of his anxiety and lack of confidence when driving.

Although Dr Fisher addressed the vocationally assessed jobs contained in the Co-work report, her comments are general and do not address physical functionality in a beneficial or informative manner. The reference to the plaintiff ‘scarcely’ driving is at variance with the plaintiff’s evidence that he does not drive and also from the extract from Dr Fisher’s report dated 4 March 2014.

A report from physiotherapist Lucy Butler dated 19 April 2013 noted the plaintiff had significant loss of strength in the quadriceps muscles, leading to poor endurance and exercise tolerance. She spoke of his walking endurance being limited to 20 minutes by pain and as a result of poor stability around the knee. His current quadriceps strength was 4/5 with palpable muscle wasting around the lower quadriceps and poor activation of the vastus medialis muscle. Ms Butler additionally reported that the plaintiff had very tight structure surrounding his right knee, ie vastus lateralis, hamstrings gastrocnemius and soleus. She wrote that the ‘limitation in length of surrounding structures is causing tension on the knee joint and is a significant contributor to Mr Farrell’s pain’.

The plaintiff’s medical material also consisted of a series of reports from Dr Robyn Horsley, Occupational Physician. In a report dated 22 September 2010 Dr Horsley addressed a number of matters including the plaintiff’s past medical history, his current medication, and his social, educational and prior occupational history. In regard to examination of the cervical spine Dr Horsley wrote that:

Examination of the cervical spine reveals a 6cm anterior right sided scar where the previous surgery has occurred. There is also a 9 cm scar over the right iliac crest where the bone graft was retrieved. He has persistent paraesthesia in the distribution of the right lateral cutaneous nerve with the thigh secondary to the harvest. Examination of the cervical spine reveals diffuse trigger points on light touch palpation of the articular pillars and spinous processes. There is no specific discomfort in the shoulder girdles and particularly around the scapulae. Upper arm circumference is 38 cms bilaterally, forearm circumference is 29 cms bilaterally. Peripheral nervous system examination is normal with attention to light touch, tone, reflexes, vibration and temperature sensation. Using the Jamar, he has 42 kilograms force on the right and 40 kilograms force on the left. Cervical movement is mildly restricted. Forward flexion is normal. Extension is reduced by 10 to 15°. Left and right lateral flexion is limited to half the normal range. Left and right lateral rotation is limited in the last 10 to 15°. There is a good range of right shoulder movement in forward flexion, extension, abduction, adduction, internal and external rotation. There is a mild restriction of left shoulder movement. Abduction and forward flexion are reduced by 10 to 15°. Internal rotation and adduction are normal. External rotation is normal. All the shoulder tests are normal including the supraspinatus test, the teres minor/subscapularis test, the biceps test and Apley’s scratch test both superiorly and posteriorly.

Dr Horsley also reported on 30 April 2012, 7 May 2013 and 2 October 2014 in which she wrote that:
On the basis of [the plaintiff’ neck and left shoulder alone, the following work restrictions apply:
Avoidance of repetitive over reaching;
Avoidance of repetitive pushing and pulling;
Avoidance of working above shoulder height. He should work between shoulder and waist height;
Avoidance of lifting items greater than 8 to 10 kgs except on an occasional basis;
Avoidance of lifting items up to 5 to 8 kgs on a repetitive basis;
Avoidance of static postures involving the cervical spine;
His functional tolerances are poor, secondary to a combination of his cervical spine and bilateral knee conditions. At the time of my assessment in May 2013, his functional tolerances included:
A sitting tolerance of 10 to 15 minutes;
A walking tolerance of 15 minutes requiring a break;
A negligible static standing tolerance;
A dynamic standing tolerance of 15 minutes;
He no longer drives. He last drove in 2008.

Dr Horsley expressed the view that ‘he has come to the end of his working life’ and did not believe the plaintiff had any current capacity for work and was suffering ‘primary and secondary psychological sequelae related to [the 1 October 2008] accident’. Dr Horsley wrote that the plaintiff ‘will develop increasing symptoms in the cervical spine as the degenerative process accelerates above and below the site of the fusion in the next 5 to 10 years. This will result in increasing stiffness and reduced range of motion, and increased disability’.

Dr Brownbill is a Consultant Neurosurgeon and has provided a series of reports commencing in August 2010. In a report dated 2 May 2012, Mr Brownbill wrote:

I again consider that as a result of the cervical spine fracture and required surgical procedure in the future he will need to avoid heavy lifting, forced spinal mobility, or holding his neck in a fixed position. These restrictions will apply to work and recreation, social and domestic activities.

In a report dated 26 June 2013 Dr Brownbill said that as a result of the neck injury the plaintiff’s restrictions ‘will last into the foreseeable future’.

Mr Rodney Simm is an Orthopaedic Surgeon. The plaintiff introduced into evidence reports from Mr Simm covering a lengthy period of time from 7 April 2008 to 28 June 2013. His findings on diagnosis were uncontroversial that the plaintiff had experienced a cervical spine burst fracture of C5 as a result of the 1 October 2008 accident. He experienced referred symptoms into the upper limbs, however, there was no objective evidence of neurological involvement. He reported that the plaintiff’s lower back consists of an extensive history of pain and that there is evidence of age-related changes in pathology that are predictive of pain but that there was only minor restriction of movement and no clinical signs of radiculopathy. He said that the plaintiff’s right knee diagnosis is one of progressive osteoarthritis initiated as a result of the work accident of 19 April 1994. Mr Simm detailed the reconstructive procedures and multiple arthroscopic procedures the plaintiff had undergone resulting in a total knee replacement and a revision total knee replacement. As to the plaintiff’s left knee Mr Simm wrote that there was a diagnosis of progressive osteoarthritis. Mr Simm thought it probably constitutional and probably also influenced by the knee injury of 1984 that had arisen from football. He noted as well left shoulder symptoms since the cervical spine injury in October 2008 although, as Mr Simm put it, there was no perceived as specific injury to the left shoulder. The left shoulder symptoms he thought may be referred symptoms from the cervical injury.

Mr Simm reported that the fall on 29 April 1994 was a significant contributing factor to the progressive osteoarthritis of the right knee and furthermore that the accident on 1 October 2008 was responsible for the plaintiff’s cervical condition and full left shoulder girdle symptoms.

Mr Simm reported that he did not believe the plaintiff had any capacity for preinjury employment as a hairdresser or stevedore and that he will remain permanently incapacitated for any work that requires him to stand, walk, kneel, squat, climb or undertake lifting and carrying of heavy objects. He believed he was permanently confined to light, essentially sedentary employment. That conclusion is literally incorrect as it is not disputed by the plaintiff that he can stand, walk, and carry but rather the salient investigation is to what extent and for what periods of time he can do each of these things such as to be capable of undertaking ‘suitable employment’.

The plaintiff was seen by a number of medical practitioners and allied specialists for medico legal purposes and the provision of reports to the defendants’ insurers including seeing Dr Duke, Psychiatrist, who examined the plaintiff in November 2013 and produced a written report of the examination. Dr Duke also produced subsequent reports including a report following clinical assessment on 4 March 2014. Dr Duke reported the plaintiff said that he has ‘poor concentration and can only read 2 pages at a time’. He still has problems with mobility; however, he is continuing with maintaining his social network. He reported sleep disturbance associated with pain and occasional irritability. Dr Duke did not consider that the plaintiff ‘has a current work capacity, even with re-training’.

The defendants relied on a number of additional medico specialists prepared reports. Dr Dominic Yong is a Specialist Occupational Physician and he prepared two reports dated 26 February and 24 October 2014. By the time that Dr Yong reported on 26 February 2014, the plaintiff had undergone a revision of his total knee replacement in 2012 and had been complaining of pain and swelling in the right knee.

Dr Yong reported that the plaintiff presented with two work injuries comprising bilateral knee condition and neck. The right knee condition related to the workplace injury in 1994. The plaintiff had reported the onset of left a knee pain in approximately 1996. The plaintiff told Dr Yong of the accident in 2008 whilst working as a stevedore as a result of which he suffered a fracture of the cervical vertebrae and required surgery. He recounted post operative pain.

As to functional capacity Dr Yong noted the plaintiff having said that he could walk 200 metres. He said as well that he ‘drives occasionally in his local area mostly his girlfriend's car’. The imprecision and discordant matter of the plaintiff’s capacity to drive was not reconciled in evidence. Dr Yong however found tenderness and wasting that is consistent with a lack of use.

Dr Yong expressed the opinion that the plaintiff had a current capacity for work to perform tasks that took account of various restrictions that avoided prolonged standing and walking duties, repeated use of stairs and ladders, firm pushing or pulling, squatting or kneeling tasks and lifting more than 5 kgs on a repeated basis.

Dr Yong did not believe that either of the preinjury employment the plaintiff had undertaken as stevedore or hairdresser would be capable of being performed by him within his identified restrictions. Neither defendant disputes this contention.

In a supplementary medical report, Dr Yong furnished his opinion regarding the plaintiff’s functional capacity to perform the role of Property Manager, Real Estate Manager or Retail Supervisor in a hair salon, these being the 3 suitable employment jobs identified in Co-Work Vocational Assessment Report prepared by Jo-Anne Bryant and he also reported on an earlier WorkStreams Vocational Assessment Report dated 23 October 2009. Dr Yong was provided both of these vocational assessments for the purposes of his supplementary report. In commenting on the Co-Work Assessment undertaken by Ms Bryant, Dr Yong had the following to say:

With respect to the property manager role, this is likely to have minimal manual handling. This would generally require a component of office based tasks and some on-site work at some properties. This is likely to comply with the restrictions and would be considered reasonable.

With respect to the real estate manager role, this would be predominantly an office based role. There would be an opportunity to rotate postures regularly. It would be an absence of manual handling tasks. This would comply with the restrictions and be considered reasonable.

With respect to the retail supervisor (hair salon) role, this would work within a hair salon but not doing the direct work on clients’ hair. This would involve doing a range of office based tasks and general administration duties. There may be some training and supervision of staff. This would likely to comply with the restrictions and would be considered reasonable.

Dr Yong reported on the Workstreams Vocational Assessment that identified the plaintiff as suitable to undertake employment as:

· Import-export clerk
· Dispatch clerk

· Stock clerk

· Order clerk

· Cost clerk

Dr Yong expressed the view that:

These are generally office based duties. There would be predominantly seated tasks that there would be an opportunity to rotate postures regularly. There would be avoidance of manual handling.
They are likely to comply with the restrictions and would be considered reasonable.

Of course I have given weight to the opinions of Dr Yong but the opinions are not supported by an analysis on his part of the plaintiff’s assessed limitations against an assessment of the functional elements attendant of the roles identified whether by reference to the Co-Work or WorkStreams Assessments. It not apparent that such an exercise was performed by Dr Yong. His assessment and conclusions are perfunctory.

Dr Chenoweth in a report dated 30 March 2010at the time of the WorkStreams Vocational Assessment report dated 22 October 2009, wrote that save for the ‘Despatching and Receiving Clerk’ the other job options appeared suitable subject to some minor adjustments and configurations such as to computer work stations. Also in July 2010 Dr Chenoweth expressed the belief that the plaintiff ‘should soon be able to commence sedentary and very part-time work.’ However in a further report dated 19 May 2012, following on the plaintiff’s release from prison, Dr Chenoweth was less optimistic about a return to work and said that the plaintiff’s future prospects were diminished for reasons that included, bilateral total knee replacements with the result that both knees are limited in their range of movement and cause pain and the plaintiff’s own belief that he will not be able to re-enter the workforce. Dr Chenoweth’s prognosis was that the plaintiff would not be able to re-enter the workforce and that the neck injury was the major but not the only cause. Finally in a report dated 27 June 2013, Dr Chenoweth expressed the opinion that the plaintiff will never have the capacity to suitable employment for the foreseeable future.

At around Christmas time 2012 the plaintiff apparently fell and suffered soreness to his right leg. He underwent a right knee surgical revision under Mr McQueen in April 2012 and it was following the surgery the plaintiff reported having experienced pain in the right shin with a scan performed identifying a the source of his account of pain as a fracture of the tibia and a deep venous thrombosis.

I am satisfied that there is clinical pathology to account for the plaintiff’s complaint of pain in his right knee and a progression of pain in the left knee and that on balance the plaintiff’s incapacity will continue indefinitely and all of this is subsequent to the period of his dishonesty. It would be quite frankly remarkable if the plaintiff did not experience pain. What I have to keep in mind is whether I can be satisfied as matter of fact that such pain to knee and neck present such restrictions as to render him capable of suitable alternative employment. The current determination falls for determination in a different medical environment than the one plaintiff presented with during the period of his dishonesty and prior to the 2008 injury.

Ms Bryant’s Co-Work Assessment, is expressed as having been prepared after having paid regard to Mr Leitl’s report of April 2010, Dr Chenoweth’s report of November 2012 and Mr Simm’s reports together with the plaintiff’s self reported activities and physical tolerances and that the positions she had identified would account for the plaintiff having, ‘the freedom to vary his posture and can avoid prolonged standing or walking, heavy lifting or carrying, kneeling, squatting or climbing, strenuous repetitive, bending or twisting neck movements, heavy physical work, and work above shoulder height’.

The characteristics or ‘typical duties of a Property Manager’ as noted by Ms Bryant are:

·Accept and list properties and businesses for lease, conduct inspections, and advise buyers on the merits of properties and businesses and the terms of lease

·Collect and hold rent monies from tenants, and remit to owner upon agreed basis

·Monitor and address non-compliance with terms and conditions of tenancy and pursue rental arrears and arrange maintenance of premises

The demands of the job include:

·Administer rental roll. This job occurs at a desk in the seated posture with the ability to stand freely to stretch et cetera and also to collect documents from the copier, printer, fax machine

·Meet with property owners and tradespeople on site to discuss maintenance and rental needs. Short distance driving (properties are local); may occasionally need to walk upstairs, usually flats, two-storey properties. Short distance walking and some standing for short periods (15 minutes on average). There is no lifting or carrying of any note

·Conduct inspections. This involves standing and short distance walking for between 30 minutes (rental) and 45 minutes (open and/or private sale). May need to very occasionally lift sandwich board from boot of car to position on nature strip and insert flags for auction/sale. Weight of sandwich board is between 5-8 kg.

The walking requirement exceeds the restriction imposed by Dr Horsely, for example.

Ms Bryant reported that the duties typically performed by a Real Estate Representative include:

·accept and list properties and businesses for sale and lease, conduct inspections, and advise buyers on the merits of properties and businesses and the terms of sale or lease

·advise vendors of sales and marketing options such as sale by auction and open house

·catalogue and detail land, buildings and businesses for sale/lease and arrange advertising

·assess buyers needs and locate properties and businesses for their consideration

·Offer valuations and advice for buying and selling properties and businesses, and structure the terms of settlement

·collect and hold rent monies from tenants, and remit to owner on agreed basis

·monitor for and address non-compliance with terms and conditions of tenancy and pursue arrears

·Develop and implement business plans, budgets, policies and procedures for the agency

·May arrange finance, land brokerage, conveyancing and maintenance of premises.

Miss Bryant wrote that she had not been able to conduct a Task Analysis of Real Estate Representative job in order to determine the physical demands of the position. Ms Bryant said however that she had assessed the physical demands of the job as sedentary and said that, ‘I consider that this occupation is suitable for the plaintiff as he contemplates his vocational future’. Ms Bryant reported that as with the position of Property Manager, the employment entails desk work along with short distance driving to meet with vendors, tenants, conduct inspections and the like.

Ms Bryant reported that the duties typically performed by a Retail Manager include to:

·determine product mix, stock levels and service standards

·formulate and implement purchasing and marketing policies, and set prices

·promote and advertise the establishments goods and services

·sell goods and services to customers and advise them on product use

·maintain records of stock levels and financial transactions

·undertake budgeting for the establishment

·control selection, training and supervision of staff

·ensure compliance with occupational health and safety regulations

Ms Bryant wrote that in regard to the physical demands of the job that ‘from my observations as a customer, the role of a Retail Manager in at Hairdressing Salon is both hands-on and supervisory. Managers can delegate any manual handling tasks concerning stock to staff, by overseeing this, can control how much they lift, carry, bend and stand. Some short distance walking would be required. Sitting time will occur when ordering stock, rostering staff and the general administration required to run a salon.’

Ms Bryant wrote that the plaintiff has ‘good people and conversational skills with a hairdressing background and is capable of taking appointments, assisting in busy periods to shampoo hair, which from my research, may be required occasionally. Whilst owning the car battery franchise, and when working for his father, he obtained experience in running a small business.’

A fair proportion of Ms Bryant’s consideration of the physical demands of the job of Retail Manager in a hair salon is based on her own observations and not empirical data. Furthermore, I do not regard the plaintiff’s past employment and his evidence regarding the same as having equipped him to undertaking the stock and budgetary requirements of such a role or for undertaking, for example, the training of staff.

Driving is an aspect associated with the plaintiff attending to the real estate related employment job options identified in the Co-Work assessment. Ms Gold relied on discrepancies in relation to the plaintiff’s evidence surrounding the circumstances of driving. In addition, I have referred to discrepancies in the medical reports of Dr Fisher surrounding the plaintiff and driving. On balance I accept that the plaintiff does not drive and certainly not alone or in a manner that would readily permit him to perform the attendant tasks of attending on properties for inspection and for the purpose of meeting with trades.

The property manager’s job contemplates walking up stairs to properties and I am satisfied by the evidence that the plaintiff would be inhibited from doing so other than with difficulty because of the restrictions on movement noted in the medical reports and because of attendant pain.

The plaintiff’s age, education, skills and work experience are important considerations under the Act as well. Assessments made of his suitability that are 4 or 5 years old are only superficially useful. The plaintiff did not complete secondary schooling and his previous employment has been in retail, as a hairdresser, an amateur footballer and manual labouring and not office based work. The plaintiff has undertaken some vocational activity whilst in prison and some computer training but only of an elementary type since. There is no reason for me to regard such vocational activity as equipping him for employment that requires office based and computer based skills.

The defendants made reference to and relied on the plaintiff having operated his own business for a time in car battery delivery and thus equipping him with a basic skill set for such work. The plaintiff was self employed and he delivered and installed batteries. I am not satisfied that the evidence supports a finding that he conducted or was concerned with the administrative side of the business operations, leaving such matters to his then wife. The defendants also relied on the plaintiff’s administrative work performed of a clerical nature while working on the docks and the duties performed as billet to the prison’s General Manager as equipping him with a skill set applicable to office based work in a real estate agency. I am satisfied that the previous work on balance provides support for the defendants’ submission that the plaintiff may satisfy and be able to discharge some of the duties identified in the realty related jobs, but it is not realistic to regard him as equipped vocationally for the myriad of tasks they entail. The work in connection with the real estate industry is not merely administrative in nature but requires a skill set or an ability to acquire a skill set by way of a Certificate and an ongoing capacity to apply such training to the everyday discharge of the responsibilities.

A report from HDA Medical Group, Occupational Health, Rehabilitation and Counselling dated 22 October 2014 and prepared by Lee Wilkinson, Psychologist with a Bachelors’ Degree in Disability Studies reported on the plaintiff’s vocational prospects as well as commenting on Ms Bryant’s Co-Work assessment. The HDA vocational assessment noted for example that a requirement for employment as a Property Manager is the holding of ‘an Agent’s Representative Certificate which consists of 5 full days training. Training in this area would also include complicated legal information related to understanding the legal requirements, renters/property owners’ rights, obligations etc. With Mr Farrell’s poor concentration and memory along with his capacity to attend retraining at a physical level this alone would in my opinion preclude him from this employment.’

As regards the Retail Manager’s role in a hair and beauty salon, Ms Bryant’s report on the suitability of the job is predicated on the plaintiff doing the job in a way that he could work within his physical limitations and delegate manual handling tasks associated with stocktaking or when required to assist with basic hairdressing needs as they might arise within a salon. This strikes me as a significant alteration to the job and therefore the question may be fairly asked as to the degree of realism that exists in treating the identified job as suitable when assumptions need to be made regarding the capacity of an employer to moderate the manner and extent to which constituent elements of it can be discharged. The answer to the question is, in my judgement, that it is not suitable employment.

Unquestionably the defendants’ submissions that the plaintiff possesses a requisite capacity have a veneer of attractiveness. After all much of the evidence is that the plaintiff had a work capacity in past years and was working despite the occurrence of injury to his knees and despite the certification by his general practitioner that he was not capable of work. Indeed the Co-Work Assessment was not the first of occasions that the plaintiff had participated in vocational assessments. He went through what can only be described as a charade when he was assessed as ‘Job Unattached’ for a Vocational Assessment report dated 20 July 2006 and a Job Seeker plan that was compiled by IPAR Rehabilitation when he was not ‘job unattached’. The charade was necessary to perpetuate his fraud. However, I am not satisfied that the past conduct can determine my assessment of the matter of suitable employment for current purposes.

The central question for me is not to concentrate on one aspect of the evidence in isolation but to assess the whole of the evidence in order to determine if the plaintiff has discharged his onus that he could not undertake the identified employment having regard to the matters contained in that definition in s 5 (1) of the Act. In going about this task, I bear in mind the real distinction that exists between capacity for a return to modified duties as opposed to a work capacity for suitable employment: Sodexo Australia v Karen Rowe & Ors [2009] VSC 298.

Also in making a proper assessment in accordance with s 5 of the Act, I have attempted to apply a sensible approach to the evidence. The legislation under consideration is beneficial. Furthermore, as I mentioned earlier, even people inhibited in their character by proved dishonesty can suffer a compensable injury.

I am satisfied that the real estate jobs do not amount to suitable employment because I am not satisfied that the plaintiff could undertake a sufficient array of the identified duties such as to make the jobs suitable. He cannot walk the period contemplated for attending at open for inspections and he cannot drive. Furthermore, I am not satisfied that the role of Retail Manager in a hair salon is suitable employment because in order for it to constitute suitable employment, I am also satisfied that it would require some significant tailoring to the plaintiff’s limitations. The vocational evidence relied on by the defendants from Co-Work included assumptions about the ability to moderate functional tasks. In my judgment this renders the situation more akin to the existence of jobs the plaintiff could do if allowance was made to accommodate his limitations as opposed to jobs that the plaintiff has a capacity to undertake and thus constitute suitable employment

The plaintiff was asked about his opinion regarding his capacity to undertake employment of the type identified in a Co Work Assessment report and in particular the three identified positions. The plaintiff’s response was markedly pessimistic. As to the position of retail supervisor in hair and beauty, he said that he had not heard of such a position before and that hat the role of manager would in his view still require hairdressing to be undertaken and this would mean a need to move around on a chair and much use of arms in manner not contemplated by his restrictions.

As regards a property manager he said that he has no capacity to concentrate on this would be an embarrassment to him and whomever he worked for.

I have paid close attention to the plaintiff over the course of the two hearings and the extent and manner in which he presented in the course of giving his evidence and in dealing with lengthy and detailed cross-examination. His outward presentation is at odds with his expressed limitations. However, despite it being permissible for me to have regard to my own assessment of the plaintiff, it would be wrong I think to draw empirical conclusions from anecdotal observations of the plaintiff in the carriage of the hearing. As well the plaintiff explained his presentation by saying that he had taken medication to manage his pain in the course of the hearing.

As to the plaintiff’s physical capacity to undertake the tasks identified by the jobs, he said he would be impeded in doing so because of the difficulty he has in navigating stairs. He says he finds it necessary to use ramps and handrails wherever possible. He accepted that he could carry an ‘A’ or ‘sandwich board’ frame from place to place, but that to the extent the position required him to drive to various destinations and retrieve it from the boot of a vehicle, these were things he could not do.

The plaintiff said his computer proficiency was limited and that he has no capacity to use Microsoft Word and that although he undertook a beginner’s course some years ago, whatever he learned he has forgotten. He said he can input text on his mobile phone and that is about all.

The plaintiff was quizzed about how he spends his days. He said it goes across the road to the beach and stands in the water for about 20 minutes to assist with the circulation. He said he is trying to read but it is difficult. He said he can walk short periods, perhaps 12 to 15 minutes of a maximum. The defendants did not offer up any evidence to challenge the truth of the plaintiff suffering such a limitation on walking or any evidence to suggest that his daily activities were greater or took him out more than he testified to being the case. The plaintiff said that when he sits for extended periods he experiences tingling and he finds the need to fidget around a fair bit.

The Law

The legislative framework makes allowance that an injured worker is entitled to receive weekly payments of compensation after the expiry of the second entitlement period (130 weeks) if he has “no current work capacity” and he is likely to continue indefinitely to have no current work capacity. Accordingly payments of weekly compensation cease unless the plaintiff can establish that that he has no current work capacity and that such a state of affairs is likely to continue indefinitely.

‘Current work capacity’ in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.

‘No current work capacity’, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s preinjury employment or in suitable employment.

Relevantly ‘suitable employment’ was defined in s 5(1) of the ACA as follows:

Suitable employment, in relation to a worker, means employment in work for which the worker is currently suited –
(a) having regard to -
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether –
(i) the work or the employment is available; and
(ii) the work or the employment is of a type or nature that is generally available in the employment market;

I have addressed the evidence that touches on the statutory provisions to which I am directed and this includes of course regard being had to the nature of the plaintiff’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker. The nature of the plaintiff’s incapacity in regard to physical restrictions and functional tolerances included according to Dr Horsley in a report dated 7 May 2013, a ‘walking tolerance of 15 minutes with a break’, ‘a negligible static standing tolerance’ and a ‘dynamic standing tolerance of 15 minutes’.

The suitable employment test

In Barwon Spinners Pty Ltd v Podolack [2005] 14 VR 622, the Court of Appeal said:

The concept of ‘suitable employment’ will, of course, give rise to difficulties from time to time, but the thrust of the definition is plain enough. It looks to the possibility of employment after injury; and hence the reference to ‘work for which the worker is currently suited’. Age, education and experience are among the matters relevant, as are also the nature, and no doubt the extent, of the workers incapacity and, of course, preinjury employment. Obviously employment is not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence; … The expression “whether or not that work is available” emphasises that the definition is looking at the capacity to work, meaning that physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, and that his "suitable employment" whether or not the job is currently available.

In Manthopoulos v Spencwill Nominees [26 April 2012] His Honour Magistrate Garnett said:

It is still necessary for the court to determine whether the suggested employment exists, to analyse the employment requirements from the physical, and if necessary, a psychological aspect and to apply the relevant matters as set out in the definition of suitable employment in s 5. After undertaking this analysis, applying "a degree of realism" and after disregarding industrial factors, a determination can be made as to whether the worker has a capacity for "suitable employment". Furthermore, when considering whether a worker has a capacity for "suitable employment", the suggested suitable employment needs to be analysed by specific reference to the particulars of the job, the medical restrictions on personal characteristics of the worker in addition to the factors set out in the definition.

The plaintiff need only establish a prima facie case that no suitable employment exists. In such a situation he will then be entitled to succeed unless I am satisfied that the defendant has produced evidence sufficient to raise some specific alternatives for consideration. In my view, and being realistic, the defendant is required to adduce evidence sufficient to give rise to a real possibility that there are particular types of employment available in the community which the plaintiff is capable of performing. Thus there arises an evidentiary onus on the defendant. Largely speaking the matters will be factual in nature and fall to the defendant to adduce. The defendants have adduced evidence by reason of at least the WorkStreams and Co-Work Vocational Reports. However in then addressing the suite of considerations to which regard under the Act directs itself, and helpfully encapsulated by the decision of Garnett M in Manthopoulos, I do not regard them as suitable employment in light of s 5 of the Act when analysed by specific reference to the particulars of the job [s], the medical restrictions and personal characteristics of the worker and his pre injury suite of employment. I do not think ss 5(1) (a) (v) and (vi) of the Act have application in me arriving at my conclusion. I am satisfied that in accordance with s 5 of the Act that the plaintiff does not have the requisite capacity and that the employment is not therefore suitable employment. I mention as well that although the plaintiff’s place of residence is Albert Park, this is not telling one way or the other. The disentitling conclusion I have reached is not advanced or impeded by the plaintiff’s place of residence. It is a neutral consideration in terms of the existence of such jobs in the marketplace.

I regard my approach as consistent with the decision not only in Manthopoulos but of Smith J in Public Transport Corporation v Mervyn Pitts [2007] VSC 356.

In Dinatale v Sweeney Research [2013] VSC 414 the grounds of appeal asserted that the Magistrate erred in law in failing to hold that, the worker having established a prima facie case that no suitable employment as defined in the Act was available to her, an evidentiary onus passed to the employer to adduce evidence that there was employment available in the community which the worker was capable of performing. His Honour rejected that submission and said:

First, on the evidence to which I have already referred, the Magistrate was not bound to hold that the appellant had established a prima facie case that no suitable employment was available to her. Secondly, even if any relevant evidentiary onus passed to the respondent, this was discharged by the tendering of the vocational assessment evidence to which I have already referred. Again, the short point is that, on the evidence, the appellant failed to make out a case.

In ground five it is asserted that the Magistrate erred in law in treating the evidence that the appellant would be capable of performing some aspects of the job of inquiry officer, as establishing that there was suitable employment available in the community which the appellant was capable of performing.

This ground must also fail. The evidence of the appellant was that she was able to perform all of the identified tasks associated with the position of inquiry officer. To the extent of the appellants counsel submitted to the contrary below, that submission was what rightly rejected by the Magistrate. The evidence was that the appellant could perform each of the identified duties of an inquiry officer. Further, the vocational assessment evidence was that the appellant could perform the tasks associated with this position, and the position in fact existed and was relevantly available to the appellant.

I do not think anything in Dinatale is at odds with the approach I have applied to the matter. Furthermore, and in any event unlike the situation that prevailed in Dinatale, the plaintiff has not accepted or conceded (and neither has in my view it been established on the evidence) that he has a capacity to discharge the elementary functional requirements of the positions.

In arriving at my ultimate conclusion, I have also had regard to the decision of the Court of Appeal in Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230 when commenting on the proper ambit of ‘suitable employment’ as that expression came to be introduced into amending legislation, the Court said:

I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the particular needs of individual worker, who is incapable of his normal work.

I note also the statements by His Honour Judge GD Lewis in Holt v Kleyn Plant Hire Pty Ltd (unreported County Court) when he said:

However, employment, even of the lightest kind must involve punctuality, regular attendance and consistent capacities to the work required. The plaintiff is adamant that on his ‘bad days’, which he experiences with regularity, he would not be able to cope with any realistic employment.

In my opinion the suggested ‘suitable employment’ identified by the defendants is not realistic in light of a consideration of the evidence relevant to the factors set out in s 5 of the Act.

I am satisfied that the plaintiff is entitled to the relief claimed and the notices should be set aside together with declarations that the plaintiff is entitled to the receipt of weekly payments at the rate applicable for no current work capacity from 24 March 2012 to date and to continue in accordance with the Act as a result of the claimed injuries for right knee and neck.

I direct that the parties provide a minute of final order that reflects the decision within 7 days together with any orders required on account of interest and costs

I grant liberty to apply.