Brunnenmeyer v Mars Australia Pty Ltd
[2012] VCC 281
•23 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-01199
CI-10-06233
| REINHOLD KARL BRUNNENMEYER | Plaintiff |
| v | |
| MARS AUSTRALIA PTY LTD (ABN 48 008 454 313) | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 & 7 of February 2012 | |
DATE OF JUDGMENT: | 23 March 2012 | |
CASE MAY BE CITED AS: | Brunnenmeyer v Mars Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 281 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – Serious injury s.135A – Whether plaintiff first acquired knowledge before relevant date under s.135AC, s.134AB – Two work injuries to right shoulder – Giankos v SPC Ardmona Operations Ltd [2009] VSCA 121 – Hayden Engineering v Barry McKinnon [2010] VSCA 69 – AEP Industries Pty Ltd v Mahmoud [2007] VSCA 202 – Morris v Joan Rawlings Builders and Contractors (2010) VSCA 306 – Papercorp Pty Ltd v Nicolaou (2006) VSCA 143 – State of Victoria v Collins (1999) 1 VR 215.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin S.C. with Mr M. Waugh | Constable Connor Solicitors |
| For the Defendant | Mr P. Scanlon QC with Ms J.M. Forbes | DLA Piper Australia |
HER HONOUR:
Introduction
1 There are two originating motions before the court. The first one is in relation to an injury to the plaintiff’s right shoulder suffered by him in the course of his employment with the defendant on 4 December 1995. With respect to this injury, the plaintiff seeks leave to commence proceedings pursuant to. s135A of the Accident Compensation Act 1985 (Vic) (“the Act”).
2 The second originating motion is also in relation to an injury to the plaintiff’s right shoulder. This time suffered by him in the course of his employment with the defendant, on 6 April 2006. With respect to this injury, the plaintiff seeks leave to commence proceedings pursuant to s. 134AB (37) of the Act.
Section 135A
3 With respect to s. 135A, for the application to be successful, the plaintiff’s injury has to constitute a serious long term impairment (Humphries and Poljak [1992] 2 VR 129). This test can be satisfied by reference to pain and suffering only or by reference to pecuniary loss only, or by reference to both. There is no additional requirement of actual financial loss, as is now required in the s. 134AB application.
4 Despite anything to the contrary in the Limitations of Actions Act 1958 (Vic), proceedings in accordance with s. 135 or s. 135A must not be commenced:
(a)“subject to the Limitation of Actions Act 1958 (Vic), unless paragraph (b) applies, unless an application for a determination from the worker under s. 135A(2B) has been made to the authority or a self insurer before 1 September 2000; or
(b)if the cause of action arose before 12 November 1997 and the incapacity arising from the injury was not known until after 12 November 1997, unless an application for a determination from the worker under s. 134A(2B) has been made to the authority or a self insurer before the expiration of three years after the date that the incapacity became known.”
5 Pursuant to s. 135AC of the Act, the plaintiff must satisfy the court that the incapacity arising from the injury was not known until after 12 November 1997. As the plaintiff’s application was made in August 2009, he must establish that he did not have the requisite knowledge of his incapacity as at August 2006.
6 The plaintiff’s case is that he did not know of the relevant consequences of the injury until the cessation of his employment in 2007. However, the defendant contends that he knew the consequences of his injury were “serious” in or about 1996.
Section 134AB
7 Leave is sought with respect to both pain and suffering damages and loss of earning capacity. The plaintiff’s case is that his right shoulder is seriously impaired and both work injuries (December 1995 and April 2006) contributed to that impairment. In addition, that by reason of his right shoulder impairment, he had to rely on his left arm and shoulder which has overloaded that shoulder and it too has become impaired.
8 While the defendant concedes that the injury to the plaintiff’s right shoulder is work related, it is denied that it meets the definition of being a “serious injury.” In so far as the plaintiff claims that he has suffered an injury to his left shoulder due to overuse, the defendant’s case is that any problems in the left shoulder are degenerative in nature rather than work related.
9 While the defendant accepts that the plaintiff can no longer perform his pre-injury work, it is contended that he is capable of doing the work he performed for the defendant in the Neutracuticals department prior to leaving his employment.
10 In addition, the defendant relies on video footage of the plaintiff as supporting their case that the consequences of the injury to the plaintiff’s right shoulder, both with respect to pain and suffering and loss of earning capacity, were not serious within the definition in the Act.
11 As is usual in these applications, the parties provided the court with copious material which was contained in their respective court books. In determining this application, I have considered all the material referred me by counsel in their closing addresses, including a number of relevant authorities.
12 The plaintiff swore four affidavits in support of his applications. The first affidavit, dated 20 August 2009, was in support of his application under s. 135A of the Act. The affidavits dated 15 September 2010, 31 May 2011 and 20 December 2011 were in support of his application pursuant to s. 134AB.
Background history
13 The background history is largely contained in the plaintiff’s affidavit of 15 September 2010. The plaintiff was born in Germany on 4 September, 1954 and migrated to Australia in 1955. At the age of 19, he started employment with Uncle Ben in Wodonga and his employment was continuous until he was retrenched in 2007.
Back injury
14 The plaintiff injured his lower back in about 1977 as a result of a fall at work. There were then several incidents where he aggravated his back. He suffered from intermittent back problems from 1977 onwards and finally had surgery (a laminectomy at the level of L4-5) performed by Ian Pike, an orthopaedic surgeon, on 22 January 1990. He received a s. 98 payment for this back injury on 29 October 1992 and a common law settlement on 19 April 1993.
First injury to right shoulder
15 The plaintiff suffered the first injury to his right shoulder at work on 4 December 1995. He was working on a platform in the canning area using a high pressure hose to clean dye from a tank, when the hose attachment to the tank became loose striking him on the chest. He stepped backwards from the platform and landed heavily on his outstretched right arm, necessitating admission to Wodonga hospital due to dislocation of his right shoulder. The plaintiff had experienced no problems with either shoulder prior to this incident.
16 On 27 February 1996, the plaintiff underwent an arthroscopy and synovectomy, which procedures were carried out by Mr Kirwan. On 28 May 1996, Mr Kirwan carried out further stabilisation and a Bankart repair. The plaintiff returned to work initially on light duties and then back to normal duties. He was told that he needed to monitor his duties and to be careful not to re-injure the shoulder.
Second injury to right shoulder
17 On 8 October 2002, the plaintiff re-injured his right shoulder at home when he fell, falling onto his right elbow and jarring his right shoulder. This time he was referred to Dr Philip Frawley, an orthopaedic surgeon.
18 On 15 November 2002, Dr Frawley carried out surgery to the plaintiff’s right shoulder for a tear of the rotator cuff. On 27 November 2002, Dr Frawley reported to Dr Bayliss that the plaintiff had a “tear in the rotator cuff tendon which was debrided and repaired back onto bone using stricture anchors.”
19 After this procedure, the plaintiff again returned to work initially on light duties and then back to normal duties.
Third injury to right shoulder
20 The plaintiff injured his shoulder again at work, on 6 April 2006, when he was operating a Rychiger machine (“the machine”) in the canning area. The machine produces single serve pet food by placing the single serve of meat product on an aluminium tray sealed by an aluminium cap. His job, as operator, involved keeping the machine supplied with trays and caps, taking samples of food for testing, monitoring the level of the foods in the tray and keeping the machine running by carrying out repairs when necessary. It was while the plaintiff was undertaking a repair to the machine that the security gate on the machine seized, causing him to severely jar his right shoulder.
21 The plaintiff’s shoulder had started niggling again over the 12 months period before 6 April 2006, but he had been performing normal duties with no restrictions. After this incident, he did not stop work immediately but over the next few days his right shoulder pain worsened. As a consequence, the plaintiff was sent to the company doctor (Dr Andrews), who referred him back to Dr Frawley.
22 On 14 June 2006, Dr Frawley carried out an arthroscopic debridement and decompression on the plaintiff’s right shoulder. In addition, he carried out an open rotator cuff tendon repair. As a result of this surgery, the plaintiff was off work for about three months and, after rehabilitation, he returned to work doing office-type duties.
23 As the plaintiff had no experience or particular capacity for office work but was still physically unfit for his pre-injury duties, in January 2007, he was sent to the Neutracuticals section of the factory. This is a laboratory section which makes animal pills or medicine. The plaintiff’s job was to fold little cardboard boxes. It was not heavy work but it was repetitive and this caused his right shoulder to flare up again. He kept expecting his shoulder to improve but it did not.
24 At the time, the plaintiff was told that there was no permanent position for him in the Neutracuticals section. When a production manager suggested to him that he could be retrenched because he was no longer able to carry out the inherent requirements of his job, it was decided that he would finish up on 23 March 2007.(PCB p24)
Employment after leaving the defendant
25 In his affidavit of 31 May 2010, the plaintiff set out the details of his employment after leaving the defendant. The first job he obtained was as a farm manager. While initially the job was a light one, the owners then obtained more animals. This doubled or tripled their stock of sheep and they needed more hands to help with activities, such as crutching sheep. As the plaintiff could not do this work due to his right shoulder injury, he was replaced in early 2011 with a younger man. The plaintiff’s earnings while he was in this job were substantially less than if he had been able to remain in his pre-injury job.
26 The plaintiff then obtained work with Mr Warner, a friend of his who ran a road repair tar business. The plaintiff’s work was part-time and involved operating a bobcat and holding road signs. The work was for only 3-4 hours a day and he worked about 14 hours a week. In his affidavit, he stated that:
“this part time or casual number of hours is the right level of work for me I think. If I do too much I can get a flare-up of pain. The back is a restriction but the shoulders are definitely more serious than the back. But for the shoulders, I would be still at Uncle Ben’s working in the canning section.”(PCB p 41)
27 This employment is no longer available and with respect to operating the bobcat and also an excavator, the plaintiff’s evidence was that he could not continue doing that work because it was too hard for him. There were no shock absorbers and the vibration was a problem (transcript p.49).
Unpaid work
28 In his fourth Affidavit (PCB p45) the plaintiff deposed that on occasions he has been engaged in activities helping other people. He has helped his partner’s son-in-law in a butcher shop washing dishes, hosing down machinery and wrapping meat and for this help he received some meat.
29 The plaintiff also assisted his brother, who was involved in setting up a temporary fencing business for his son. On four occasions the plaintiff attended at the worksite and provided his utility and trailer for carting objects. In addition, he helped in the construction of some of these fences.
30 These tasks could be heavy and he lifted plastic moulds filled with concrete which weighed about 20 kilograms and metal panels weighing approximately 15 kilograms. However, he found that this work aggravated his shoulders and, while he could do the work, it was not for long (PCB p. 46).
Medical opinions of the plaintiff’s treating doctors
31 Mr Kirwan provided the plaintiff’s solicitors with nine reports (7 February 1996 - 16 January 1997). These reports deal with the operations he carried out on the plaintiff’s right shoulder an arthroscopy and synovectomy on 27 February 1996 and a stabilisation and a Bankart repair on 28 May 1996. They also deal with the plaintiff’s progress post-operatively.
32 It is relevant to note that, in his report of 21 February 1996 (PCB p. 130), Mr Kirwan diagnosed the injury suffered to the plaintiff’s right shoulder at work on 4 December 1995, as a” multi-directional instability and probable chondral and/or labral injury” (report of 21 February 1996).
33 In his report of 29 August 1996 (PCB p. 136), Mr Kirwan reported to Dr Bayliss that he was satisfied with the result of the repair. The slap tear had healed and the plaintiff’s right shoulder was reasonably comfortable. However, he also recommended that the plaintiff “continue on restrictions of attempting to avoid the combined position of abduction and external rotation and not lifting anything greater than 10 kilograms with this arm.”
34 On 16 January 1997 (PCB p. 137), Mr Kirwan reported that the plaintiff had “experienced a gradual onset of pain in his right shoulder over the last month.” On examination, Mr Kirwan found “tenderness at all extremes of movement” and he suspected that “the synovitis had returned.” He gave the plaintiff an injection and a review was planned in three months if the injection had been beneficial, otherwise he was going to see the plaintiff again in the next week or two.
35 There were numerous reports from Dr Frawley, who operated on the plaintiff’s right shoulder on 15 November 2002 (20 reports, 11 November 2002 – 11 July 2008). The reports in 2002 and 2003 were basically follow-up reports on the plaintiff’s progress after the surgery on 15 November 2002. In his report of 27 November 2002, Dr Frawley’s opinion was that a good repair had been achieved.
36 In his reports of 4 May 2006 (PCB p. 155) and 3 May 2006 (PCB p. 156), Dr Frawley dealt with the injury to the plaintiff’s right shoulder as a result of the incident at work on 6 April 2006. An MRI scan ordered by Dr Frawley revealed that:
“there was a substantial tear in his supraspinatus tendon. The supraspinatus and subscapularis muscles looked rather wasted. The upper subscapularis tendon looked torn as well” (PCB p. 156).
37 In Dr Frawley’s opinion, “nothing short of surgery was likely to give him substantial improvement in his shoulder.”
38 There were a number of reports regarding the plaintiff’s progress after this further surgery (an extensive debridement and repair) on 14 June 2006. On September 6 2006 (PCB p. 161), Dr Frawley reported that three months from the surgery the plaintiff “appears to have made good recovery so far.”
39 On 13 September 2007 (PCB p. 165), Dr Frawley reported that:
“Reinhold is still having some difficulties with his shoulder. However, despite this he was managing quite okay. He had taken a part-time job doing light construction work. He seems to be managing perfectly okay. He is still waiting to sell his property and take a big trip around Australia. Examination revealed that the shoulder had full movement, very minimal crepitus, but quite a degree of weakness with resisted elevation.”
40 On Thursday 5 June 2008 (PCB p. 166), Dr Frawley reported that the plaintiff’s right shoulder “had continued to grumble along”. However, the left shoulder had been getting “progressively worse.” In his opinion, there had been progressive deterioration.
41 On 12 June 2008 (PCB p. 167), Dr Frawley reported (after viewing x-rays) that the plaintiff’s shoulders “looked pretty benign” but that his neck revealed “significant degenerative change at C4/5, as well as slight degenerative changes at the level below.”
42 Dr Andrews, the plaintiff’s treating GP, also provided a number of reports. In his report of 2 February 2009 (PCB p. 182), his diagnosis (based on Ms Keith’s assessment) was that the plaintiff’s left shoulder “has a rotator cuff syndrome and subacromial bursitis.” In relation to the plaintiff’s left shoulder, in his opinion, the most likely cause of his symptoms was normal wear and tear (PCB p. 184).
43 As to the plaintiff’s work capacity, in his last report of 28 April 2009 (PCB p. 187), Dr Andrews was of the opinion that the plaintiff “would be suitable for moderately strenuous activity with limited work above shoulder height, and for normal hours.”
44 On 30 May 1997, Dr Billett reported that the plaintiff was complaining of “constant daily pain in his right shoulder.” Dr Billet was of the opinion that the plaintiff still had residual symptoms in relation to his right shoulder. In addition, that he should maintain a weight restriction of 15 kilograms, at least for the next three months after which he should be reassessed in order to determine if he could return to his pre-injury duties (PCB pp. 139 – 143).
Opinion of the Medical Panel
45 The plaintiff relies on the Medical Panel’s opinion (21 September 2009) as supporting his case that he has a “serious injury” within the definition contained in the Act. The Medical Panel’s opinion was that the plaintiff was:
“suffering from a chronic tear of the left supraspinatus tendon with impingement relevant to the claimed left shoulder injury. The worker’s employment was a significant contributing factor to the development of a chronic tear of the left supraspinatus tendon with impingement” (PCB p. 188).
46 On 7 June 2010, the Medical Panel assessed the plaintiff as having a 7 per cent whole person impairment resulting from accepted right-shoulder injury when assessed in accordance with s. 91 for the purposes of s. 98C and ss. 134AB(3) and (15) of the Act. With respect to his left shoulder, the plaintiff was assessed as having a 4 per cent whole person impairment (PCB p. 189).
Plaintiff’s Medico-Legal Reports
47 Mr Elsner, Mr O’Brien and Dr Horesly provided medico-legal assessments to the plaintiff’s solicitors.
48 The plaintiff relies on Mr Elsners opinion in his report of 27 January 2011 (PCB p. 191) with respect to:
· the right shoulder that he had “very significant degenerative changes” in his rotator cuff in 2006 due to earlier injury in 1995 and 2002 and these were aggravated by the 2006 injury;
· the contribution of the his three shoulder injuries that “probably each of these three injuries contributed equally to his current level of impairment;” and
· his work capacity, that he had a restricted work capacity in relation to both shoulders, and would not be able to undertake activities that involved repeated or prolonged above shoulder level, activities with arms, that involved rapid, repeated, left or right shoulder movements, or that involved lifting objects more than 10 kgs, particularly away from the body.
49 Mr O’Brien saw the plaintiff on 21 December 2009 (PCB pp. 201 – 207), when the plaintiff described “experiencing constant pain in both shoulders, the right side worse than the left.” In his opinion, the plaintiff’s employment was a significant contributing factor to his right shoulder pathology and he would:
· continue to experience significant bilateral shoulder pain and restricted movement;
· be incapable of unrestricted employment;
· be incapable of undertaking any form of activity requiring lifting or using the arms at or above shoulder level;
· have extremely limited ability in relation to upper limb function,
· not return to full-time duties of a process worker or to full-time employment;
50 Dr Horsley’s diagnosis in her report of 19 October 2011(PCB p. 222), was that the plaintiff had sustained three distinct injuries to his right shoulder, and he had developed left shoulder disability. He also had degenerative changes in the cervical spine. Given the length of time since the injury and the ongoing nature of the symptoms, she believed the symptoms were likely to persist.
51 In summary, in so far as the plaintiff’s shoulder injuries are concerned, her opinion was that:
· he had an ongoing disability related to his bilateral shoulders, the right being greater than the left;
· he was permanently unfit for his previous role as a machine operator;
· his opportunities for redeployment were limited given his Year 8 education and literacy issues; and
· he had a capacity to work up to 14 hours a week.
Vocational assessment reports
52 The plaintiff also relies on vocational assessment reports from Dr Radley and Ms Leith. In his report of 7 November 2011, Dr Radley was of the opinion that as a result of the right and left shoulder injuries, the plaintiff had no capacity to return to his pre-injury employment. He had a capacity for a wider range of part-time or casual employment of a more sedentary nature if he was to complete some form of occupational training (PCB p. 240).
53 In her report of 6 January 2012 (PCB p. 249A), Ms Leitch concluded that the plaintiff:
· did not have the capacity to return to his pre-injury occupation;
· no longer had a capacity to work in any other occupations for which he was qualified or had work experience;
· was disadvantaged when attempting to enter a new occupation by his limited literacy, poor aptitude for basic clerical tasks, and rudimentary computer keyboarding abilities; and
· occupational rehabilitation and/or training in the future were unlikely to lead to a suitable recognised occupation in the open labour market.
Defendants reports
54 The defendant relied on reports from Ms Keith, Mr Elsner, Mr O’Brien and Mr Shannon. On 5 December 2008 (DCB p.1), Ms Keith reported that when she saw the plaintiff, he complained of aching in both shoulders and that most of his problems were at night as he could not sleep on either. At that time, there had been no active treatment in the last six months to either shoulder. He did not take regular pain relief but took anti-inflammatories usually twice weekly.
55 With respect to the left shoulder, Ms Keith suggested an ultrasound guided injection of Depo-Medrol. If there was little response to this, then in five to six weeks she would organise an MRI scan with a view to arthroscoping the plaintiff’s left shoulder.
56 In Ms Keith’s opinion, the plaintiff’s right shoulder was “a more difficult problem,” and she thought that they should consider arthroscoping the shoulder to look at what was happening in terms of the current pathology. In addition, that he might be a candidate for a combined humeral head resurfacing (DCB p. 3).
57 The defendant relies on Mr Elsner’s opinion in his report of 16 March 2009, that the plaintiff’s left shoulder problem was “not caused either directly or indirectly by his employment” and on his diagnosis of “constitutional rotator cuff degenerative changes with an associated partial thickness rotator cuff tear.”
58 The defendant also relied on the two aspects of Mr Elsner’s report of 21 December 2009t. Firstly, that the plaintiff had told Mr Elsner that he “wanted to find more interesting work within the limits of his right shoulder symptoms, and thus resigned from Mars in February 2007” (DCB p. 11). Secondly, on Mr Elsner’s opinion that the plaintiff would have physically been able to continue the work that he was doing at the time he left Mars and that he would be able to undertake work as a process worker provided he did not:
· lift more than 15 kg on a regular basis,
· undertake repeated or prolonged above shoulder level activities with his arms or
· perform repeated or prolonged extremes of forward stretching with his arms (DCB p. 16).
59 In his report, dated 23 December 2009 (DCB p. 21), Mr Michael Shannon diagnosed the plaintiffs injuries to his shoulders as :
· “in his right shoulder – “recurrent dislocation and rotator cuff tears”.
· in the left shoulder – “rotator cuff degeneration with a minor tear”
. He was of the opinion that the plaintiff was limited in the performance of work involving strenuous repetitive use of the arms, heavy lifting, and work above shoulder level
Finding relating to causation
60 The first issue to determine is whether the plaintiff’s right shoulder injury arose out of or in the course of or due to the nature of his employment with the defendant on or after 20 October 1999.
61 The plaintiff has suffered three injuries to his right shoulder (1995, 2002 and 2006). I find that both the injury to his right shoulder sustained on 4 December 1995, and the injury sustained on 6 April 2006 arose out of or in the course of his employment with the defendant.
62 With respect to the injury in 1995, in accordance with Mr Kirwan’s findings at the time he operated on 30 April 1996, I find that the plaintiff suffered a partial tear of the underside of the rotator cuff near the insertion of the supraspinatus and a small Hill Sachs lesion which was evidence of traumatic anterior dislocation.
63 With respect to the injury to the right shoulder in 2006, on basis of the MRI and Mr Frawley’s reports, I find that the plaintiff suffered a substantial tear of the supraspinatus.
64 In making these findings, I have also taken into account that, Mr O’Brien was of the opinion that “it could be concluded that employment was a significant contributing factor to the right shoulder pathology” (report of 4 January 2010, PCB p. 207 at para. 2).
65 With respect to the consequences of the these injuries, Grech v Orica Australia Pty Ltd [2006] VSCA 172 establishes that more than one injury may be sufficiently causative of the same consequences. I accept the opinion of Mr Elsner and Dr Horsley that each of the injuries (1995, 2002 and 2006) contributed to the plaintiff’s current level of impairment.
Plaintiff’s case regarding pain and suffering consequences of the injury
66 One of the claimed consequences of the injury to the right shoulder is the condition of the left shoulder which the plaintiff essentially contends is due to overuse because of the injury to the right shoulder.
67 The radiology confirms that the plaintiff has a full thickness tear of the left superaspinatus tendon with impingement. While Mr Elsner attributes the plaintiff’s condition to constitutional degenerative changes (report of 27 January 2011, DCB p. 42), I accept the opinions of Mr O’Brien and the Medical Panel that employment has been a significant contributing factor to the development of the chronic tear of the left superaspinatus tendon with impingement.
68 In making this finding, I have taken into account that in his affidavit of 15 September 2010, the plaintiff deposed that his left shoulder had started getting “niggles of pain” while he was working in the canning section and that he would often use the left arm in lieu of the right. After the right became very sore from the episode on 6 April 2006, he was using the left all the time and it gradually worsened (PCB p. 24).
69 In addition, that in a letter dated 5 June 2008 to Dr Andrews, Mr Frawley stated, with respect to the plaintiffs shoulders, that:
“The right shoulder has continued to grumble along. However, the left shoulder had been getting progressively worse. Reinhold recalls reporting left shoulder left shoulder pain before he left employment at Uncle Bens” (PCB p. 166).
70 Further, that in her report of 19 October 2011, Dr Horsely stated that the plaintiff informed her that he began to “experience discomfort in his left secondary to favouring” (PCB p. 219).
71 On 18 October 2011, the plaintiff gave Mr Radley a history of pain in his left shoulder while he was working in canning section, which he believed was due to “over-compensating for his right shoulder” (report of 7 November 2011, PCB p. 231). I found the plaintiff to be an honest and forthright witness and I accept that he was increasingly using his left arm to compensate for the right after the operation in 2006.
72 With respect to the other claimed consequences of the injury to his right shoulder in his affidavits of 15 September 2010 and 31 May 2011, the plaintiff claimed that he:
· had two bad shoulders and the right was worst than the left;
· had pain in the right shoulder, it was sore even at rest;
· rested the elbow on the arm door rest when he drove but this did not help much;
· could raise his hand above but only if he did it in a special manner by keeping the elbow close to his side;
· could not use his shoulder strenuously without pain and it clunked;
· used his left shoulder to compensate for the right and also had similar problems with his left shoulder but not so bad;
· had not had a good night’s sleep for a very long time as both shoulders were bad at night and kept him awake.
73 The plaintiff also deposed to finding a lot of daily activities to be difficult, including:
· washing the upper part of his back;
· swinging the axe to chop wood for his fire;
· getting his wallet out of his right back pocket; and
· using his left hand to wipe himself in the toilet.
74 With respect to his medication, in his most recent affidavit of 20 December 2011, the plaintiff stated that he uses Celebrex (200mg) every day and Tramadol (200mg) about three times a week. The pain is worse at night and it continues to interrupt his sleep (PCB p. 46 at para. 8).
75 The plaintiff used to hunt and camp regularly, by himself and with his friend, Damian Barton, and his brother, John Brunnenmeyer. However, due to his shoulder injury he cannot use the same calibre rifle (due to the recoil) and he now only hunts occasionally (PCB p. 25).
76 Although the plaintiff ceased playing golf for a period in 1997, it appears that his love for the game is such that he cannot give it up. In his affidavit of 20 December 2011, he stated “I would say I have played more golf this year (2011) than in the past because I find the exercise important.” However, he also deposed to a preference for playing no more than nine holes because it affected his shoulder. In addition, while he had taken part in club competitions involving 18 holes, he preferred to play Stableford “as you do not finish a hole once you reach your handicap” (PCB p. 46 at para. 7).
Defendant’s case regarding serious consequences of the injury
77 In cross-examination much was made of the plaintiff’s ability to continue playing golf. The plaintiff agreed that he played two to three times a fortnight. In addition, that he had taken part in a golf competition in February 2011 at Beechworth (18 holes) and that he was third playing off a handicap of 18. Then again, in July 2009, at Beechworth (18 holes) he was third with 22 Stableford points (transcript pp. 31-34).
78 In addition, the defendant relied on video film of the plaintiff engaging in various activities without any apparent sign of difficulty, including:
Video footage – 24 February 2011:
· filling a 20 litre jerry can with fuel;
· coming out of the liquor section of the IGA supermarket carrying four slabs of beer and a bottle of wine;
· having his right arm all but fully extended on the top of the ute;
· travelling to a residence at 70 Wood Street, Beechworth and placing paint and wood near the rear of his vehicle; and
· driving his vehicle in various parts of Beechworth.
Video footage – 25 February 2011:
· going to Beechworth Machinery and reversing up to a large trailer which the plaintiff then hitched onto the rear of his vehicle;
· securing the trailer by winding the jockey wheel with his right arm and moving it in a pretty free fashion;
· towing the trailer to Austview Window and Door Fabrications in Wangaratta;
· removing two ramps from the trailer and putting them on the ground before bending down to support them on the rear of the trailer;
· at rear of trailer, lifting the ties with both hands to about shoulder height;
· driving to Tomainos Car Audio and returning to the vehicle carrying various items;
· refuelling his vehicle;
· back at Beechworth helping a lady lift a lawnmower into the rear of her vehicle; and
· leaning on a post with his hand up high;
79 In addition, although it was not seen on the video footage, in cross-examination the plaintiff agreed that he unhitched the trailer and pushed it a short distance before standing to converse with a staff member at the place where he returned it.
80 In his closing address, in submitting that the pain and suffering consequences of the plaintiff’s injury did not meet the definition of being a “serious” injury, counsel for the defendant relied on the fact that the video footage revealed that the plaintiff had retained the ability to perform a number of activities. In addition, on the plaintiff’s admissions in cross-examination that:
· the activities seen in the video footage were significantly harder than the work he did in the Neutracuticals department (transcript p. 43);
· on the video footage he had displayed an ability to move his arm well (transcript p. 43);
· the temporary fencing work he had assisted his nephew with was “significantly heavier” than his work for the defendant after his shoulder injury in 1995 (transcript p. 43).
Finding in relation to pain and suffering consequences
81 In her report of 5 December 2008, Ms Keith described the plaintiff as “being a really pleasant man who was very genuine and who clearly had a disability” (DCB p. 2). I am in agreement with Ms Keith, in that I found the plaintiff to be an honest and straightforward witness who did not exaggerate the consequences of his injuries. This assessment is supported by the fact that none of medical experts suggested that the plaintiff had exaggerated his symptoms.
82 While the plaintiff is still able to play golf, I note that Mr Elsner thought that it was reasonable to assume that he would experience some discomfort in his shoulders playing more than 9 holes of golf on a regular basis. In addition, that he would have difficulty in using a rifle with a significant recoil. He was also of the opinion that the plaintiff’s problems would prevent him from swimming regularly and would prevent him from playing cricket or doing anything other than light activities in a gym with his upper extremities (DCB p. 16).
83 Although the video film showed the plaintiff being fairly active, there was nothing in the film which showed him doing something he said he could not do. It was apparent, both from his evidence and the supporting affidavits, that he is a very active person trying to cope with the restrictions of his injury.
84 President Maxwell in Hayden Engineering v Barry McKinnon [2010] VSCA 69, at para. 13, stated:
“the cases recognise that some plaintiffs may be more stoical than others. This means that such a plaintiff, is to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the stoical plaintiff is not to be viewed as any the less serious merely because he/ she manages to remain more active than might be expected given the level of pain. In such a case the objective evidence of the disabling effect may be of less significance than usual.”
85 My assessment of the plaintiff was that he is more stoical than many others would be with the same injuries. This assessment is supported by his partner Faye Gilbey, who no doubt knows him well. In her affidavit of 20 December 2011 (PCB p. 101), she stated that:
“Reino is stubborn and will not admit defeat. This plays out in relation to the activities that he does despite his physical limitations because of his injuries. He will often try to tackle jobs even when those jobs are now beyond him and are going to cause him pain and discomfort for the following few days” (PCB p. 102 at para. 10).
86 With respect to the occasions where the plaintiff helped his brother and nephew in the temporary fencing business for a full day, she stated that he would come home “being completely exhausted and in pain.” She also stated that:
“When he worked the full day he is in a lot of pain and physically does very little. He finds this incredibly frustrating and he becomes moody and irritable because he is not used to the limitations and not working” (PCB p. 103 at para. 12).
87 Ms Gilbey’s statement is consistent with the plaintiff’s evidence in re-examination, that if he tried to do any of these tasks for a longer period he would suffer (transcript p. 5). When asked about the possibility of being able to do lifting work for his nephew the following day, his reply was “even that day I feel the pain and I can’t get to sleep without painkillers” (transcript p. 59).
88 In addition, the plaintiff’s evidence was supported by his brother, Stefan Brunnenmeyer, who stated in his affidavit, of 13 January 2012, that:
“I know that Reino struggles to handle the restrictions that his injuries have placed on him and he is always striving to do as much as possible and I am sure it is sometimes to his detriment (PCB p. 104 at para. 7).
89 And:
“On the days when Reino had worked full days with us we didn’t see him for the next few days and I understand that he was in a lot of pain and at home recovering.”
90 Ms Gilbey also supported the plaintiff’s claim that he has problems with sleeping due to pain. She stated that he was “very restless in his sleep because of pain and he has disturbed sleep or will toss and turn at night” (PCB p. 103 at para. 16).
91 Ms Gilbey is a trained massage therapist and Bowen therapist. With respect to the plaintiff’s pain and use of medication, she deposed:
“it is evident to me that Reino is continuing to deteriorate. His levels of pain are increasing and his ability to cope with the pain is decreasing. He is now taking anti-inflammatories every day and he now takes painkillers despite the fact that for a long time he stubbornly refused to take painkillers”(PCB p. 103 at paras 16-17).
92 I am satisfied that the pain and suffering consequences of the injury to the plaintiff’s shoulders, when judged with other cases in the range of possible impairments, can be described as being more than significant or marked and as being at least very considerable.
93 In making this finding, I have in particular taken into account that while the plaintiff is still able to play golf and he was seen on video film performing various activities he:
· no longer has full and unrestricted use of his shoulders;
· Is kept awake at night by the pain in his shoulders;
· is taking anti-inflammatories and painkillers every day;
· has pain in right shoulder even at rest the plaintiff;
· is a stubborn and stoic individual who I accept performs tasks that others with the same extent of injury would be unlikely to attempt;
· he is in a lot of pain the next day if he performs these physical activities;
· There was no suggestion in any of the medical reports that the plaintiff was exaggerating his pain and symptoms;
· was an honest and straightforward witness who made no attempt in cross-examination to deny that he could still do various thing;
· can no longer perform his pre-injury work.
Section 135AC
94 The onus is on the plaintiff to satisfy the court that the incapacity arising from the injury was not known until after 12 November 1997 and that he did not have knowledge of his incapacity before August 2006, being the three years prior to the making of the s. 134AC application.
95 The court was referred to a number of authorities which set out the approach to be taken in such cases, including Morris & Joan Rawlings Builders and Contractors v David Morris Rawlings [2010] VSCA 306, at para. 43, where the Court of Appeal stated:
“As has been observed, the starting point is that the test of whether the incapacity was known is whether the respondent subjectively knew of facts at the relevant time which, if viewed objectively at that time, would have been taken to mean that he was then suffering from ‘the incapacity.’”
96 In AEP Industries Australia Pty Ltd v Mahmoud [2007] VSCA 203, at para. 11, it was accepted by the Court of Appeal that s. 134AC(b) involves a two step process. First, the trial judge must identify what the injured worker in fact knew in relation to his injury at the relevant time; and second, the trial judge must determine whether, in the judge’s opinion (this is a matter of fact and degree and value judgment for the judge), those known facts constitute knowledge of serious injury and capacity as explained in Humphries v Poljak [1992] 2 VR 129.
97 With respect to the judge’s role, Redlich JA stated:
“It is for the judge hearing a s. 135A(4)(b) application to decide what the worker knew about the extent of and probable duration his or her incapacity arising from the compensable injury at a particular time; and, always assuming that what the worker knew represented the truth of the situation, whether what the worker knew fitted the template of serious injury incapacity, that template involving elements of fact, degree and value judgment” (para. 10).
98 The defendant relied on both Mahmoud and Papercorp Pty Ltd v Nicolaou [2006] VSCA 143 to contend that, even if the plaintiff had insufficient knowledge of the pecuniary consequences, it was sufficient that he had knowledge of the pain and suffering consequence.
99 In Papercorp Pty Ltd v Nicolaou, at para. 33, Ashley JA stated that the “knowledge of incapacity arising from the injury may be either constituted by pain and suffering, or pecuniary disadvantage or both.”
100 In State of Victoria v Collins [1999] 1 VR 215, at 29, concerning knowledge, Winneke P stated that:
“---the test is knowledge, not suspicion or awareness of facts that convey information to another, but actual subjective knowledge on the part of the worker.”
101 And further that:
“All the worker had to prove was absence of knowledge, not an absence of suspicion or of facts from which a person of less fortitude might have drawn a more pessimistic conclusion”(at p. 34).
The plaintiff’s knowledge prior to12 November 1995
102 The defendant’s case is that the plaintiff knew of the pain and suffering incapacity arising from the injury to this right shoulder, prior to 12 November 1997. With respect to the plaintiff’s knowledge prior this date, the defendant relied, in particular, on the following:
· Paragraph 12 of the plaintiffs second affidavit, where referring to returning to work on light duties after the operation in May 1996 for his right shoulder injury, he stated: “I was told that I needed to monitor my duties and be careful not to re-injure the shoulder.”
· The plaintiff’s agreement in cross-examination, that he had knowledge back in 1995 that his capacity for employment was going to be affected by an inability for repeated use of the arm at or above shoulder height (transcript p. 44).
· The documentation relating to the plaintiff having undergone surgery on two occasions for the 1995 injury (by Mr Kirwan on 27 February 1996 and 28 May 1996).
· In January 1997, Mr Kirwan recorded that the plaintiff had experienced a gradual onset of pain in the right shoulder over the last month or so (PCB p. 137).
· In his report of 20 May 1997, Dr Marsh was of the opinion that the plaintiff should remain on permanent restrictions to help ensure that he was not inadvertently subjected to aggravating work factors in the future (PCB p. 138).
· In his report of 30 May 1997, Mr Billett noted that the plaintiff had ceased various sporting activities, including golf, social cricket, fishing and shooting, and that he complained of constant daily pain (PCB p. 139).
103 However, the plaintiff relied on following:
· After the injury in 1995, he was able to travel around Australia.
· Prior to April 1996, the plaintiff was working full-time doing full manual duties and his income was unaffected.
· He was going shooting, hunting and fishing.
· There was no evidence of ongoing medication of a significant nature.
· There is no evidence of loss of sleep.
The plaintiff’s knowledge prior to August 2006
104 The defendant’s case was that the plaintiff knew of the serious injury incapacity before August 2006. In particular the matters relied on with respect to the state of his knowledge prior to August 2006, included:
· In paragraph 17 of his second affidavit, the plaintiff stated, inter alia: “My right shoulder had started niggling again over about the 12 month period before 6 April 2006” (PCB p22).
· In cross-examination, the plaintiff agreed that he had known well before August 2006 that he had a problem with the right shoulder which was going to affect his capacity for employment (transcript p. 44).
· In his report of 11 November 2002 (PCB p. 150), Dr Frawley described treating the plaintiff’s shoulder in 2002, following a fall at home which precipitated the pain in his right shoulder and then again in 4 May 2006 (PCB p. 155), when the plaintiff had given him a history of 12 months discomfort in his right shoulder.
· At the time of the plaintiff’s cessation of work in 2007, Dr Andrews recorded work restrictions of 50 kilogram manual handling limit and an inability to work with outstretched arms (PCB p174).
· The medico-legal histories of Dr Elsner, Mr O’Brien and Dr Andrews.
105 The plaintiffs case was that he was in full employment and expecting ( given his past performance) that recovery would take place and that he would return to normal factory work in due course.
Finding re plaintiff’s state of knowledge prior to 12 November 1997
106 I am satisfied that the plaintiff did not know of the serious injury incapacity (both pain and suffering and economic loss), arising from his right shoulder injury prior to 12 November 1997 for the following reasons:
·Although the plaintiff returned to light duties after the operation on his shoulder in 1996, it was not long before he resumed normal duties.
·The advice he received, to be careful to monitor his duties and to be careful not to re-injure the shoulder, was simply commonsense and appropriate advice given that he had suffered a shoulder injury which had required surgery.
·While the plaintiff agreed he had knowledge in 1995 that his capacity for employment would be affected by his inability for repeated use of his arms above shoulder height, such knowledge is different from having knowledge that he had a “serious long-term impairment.”
· During this period, the plaintiff took his Toyota Land Cruiser, including a caravan, up to the Gulf of Australia and there was no evidence that he suffered from any pain during this trip or that any restrictions with respect to his shoulder caused him any problems during the trip.
· With respect to the medical evidence, while I accept that the plaintiff had periods of increased pain after the accident in 1995, it appears from the history that he gave Dr Marsh on 20 May 1997 (PCB p. 138), that at other times his symptoms were minimal and that “overall he was satisfied that things were going well.”
107 In this same report, Dr Marsh stated that:
“overall Reinhold had done pretty well following surgery and that from a functional point of he was able to do most things required of him in his position. He appears to be aware of the importance to avoid any aggravation and appreciates that his shoulder will never be 100%.I really do not think that he needs anything more in the way of rehabilitation and from the point of view his case can now be effectively closed”.
108 While Dr Marsh also considered that the plaintiff should remain on permanent restrictions to ensure that he was not inadvertently subjected to aggravating work factors, I consider that his description of the plaintiff as being “able to do most things required of him” supports the finding that the plaintiff did not have the knowledge that he had a serious long term incapacity .
109 While on 30 May 1997, the plaintiff informed Dr Billett (PCB p. 143) that he had constant daily pain in his right shoulder and that he had given up golf, fishing, shooting and social cricket, it was apparent from the plaintiff’s evidence to this court that was able to take up golf again.
110 Most importantly, the plaintiff’s evidence was that up to 2006, he was performing full duties on the Rychiger machine with no restrictions. He was not taking any time off work and he worked a 38 hour week with an average of 4 – 5 hours overtime.
111 In Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292, at para. 24, Chernov JA stated:
“If one accepts as her Honour did, that the appellant is able to return to alternative employment then, unless there was some evidence that showed that he experienced significant pain or that he otherwise significantly suffered from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are at least very considerable.”
112 On the above history, the plaintiff returned to his full duties albeit with some restrictions and was able to do most things required of him. It is difficult to conclude on this history that the plaintiff would have known that he was suffering from a serious long-term impairment prior to 12 November 1997.
Finding re plaintiff’s state of knowledge three years prior to making of 135AC Application
113 When the plaintiff reinjured his right shoulder again at home in 2002 and had further surgery, once again, he returned to work initially on light duties but then went back to his normal duties (PCB p. 22 at para. 15).
114 In his report of 19 December 2002 (PCB p. 153), Dr Frawley reported on the plaintiff’s progress five weeks from surgery that “overall, he is happy with his progress notwithstanding that he has some pain in his shoulder.”
115 While in his affidavit the plaintiff deposed that his shoulder started “niggling” again in the 12 month period before he injured it, on 6 April 2006 (PCB p. 22 at para. 17), he did not give any evidence of suffering from any “significant pain” during this period. Most importantly, he continued with his normal duties on the Rychiger machine working 38 hours a week and doing overtime.
116 In his report of 4 January 2010, Mr O’Brien noted that the plaintiff told him that after the operation on 14 June 2006 (for the 6 April 2006 injury), he continued to experience constant right shoulder pain and that the pain was no better than pre-operatively and associated with continuing restriction of movement of the right shoulder. In addition, that he noted the onset of pain in his left shoulder (PCB p. 203).
117 I accept that after the operation on his right shoulder performed by Mr Frawley on 14 June 2006, the plaintiff might have had a suspicion that all was not well. However, I accept that he is a stoic individual and that with his past history of recovery from his injuries, it was not until November 2006 that he had full knowledge of both the pain and suffering and work restrictions which the injury to his right shoulder had imposed on him.
118 In coming to this decision, I have taken into account that, on 13 September 2006, Dr Frawley reported to Dr Andrews as follows:
“As we discussed it would be fair and reasonable for Reinhardt to stay on his restricted duties. Unfortunately, given that he has had three operations now his shoulder, I don’t think that the shoulder will ever be normal. Therefore it is tempting fate for Reinhold to attempt to resume full duties and maintain full capacity over a prolonged time. Reinhold is actually quite happy to stay on restricted duties, as he mentioned to me the last time I saw him. We have agreed that only a gradually increase in duties would be appropriate. I will review him in November” (PCB p. 162).
119 Then on 7 November 2006, Dr Frawley advised Dr Andrews that, inter alia:
“Reinhold is now about five months of surgery. He still has pain and weakness in his shoulder. We have discussed the option of a permanent downgrade at work. He is quite happy with this” (PCB p. 163).
120 The significance of these letters is that they reveal that by this stage the plaintiff must have realised that he was not capable of returning to his normal duties on the Rychiger machine with overtime earning capacity. They also reveal that five months after the surgery, the plaintiff still had pain (rather than discomfort or niggling) in his right shoulder.
121 In these circumstances, I accept that it was not until November 2006 that the plaintiff acquired actual knowledge of the “incapacity arising from his right shoulder injury” and that he was suffering a long-term loss of body function.
122 Given this finding I grant leave for the plaintiff to bring proceeding for damages pursuant to s 134Aof the Act.
Work capacity
123 A court is not to grant leave under s. 134 AB(16)(b) on the basis that a worker has established the loss of earning capacity required by s. 134AB(38)(b), unless the worker has a loss of earning capacity of 40% or more and will, after the date of hearing, continue to permanently have a loss of earning capacity which will be productive of financial loss of 40% or more (as measured and determined in accordance with paragraphs (f) and (g) of s134AB(38)).
124 Pursuant to s. 134(38)(g), no loss of earning capacity is established if a worker has or would have, after re-training, rehabilitation etc., a capacity for any employment, which if exercised would result in him earning more than 60% of gross income had the injury not occurred.
125 While it is common ground that the plaintiff no longer has the capacity for his pre-injury duties, the defendant’s case is that the plaintiff is capable of performing the type of work that he had been engaged in the Neutracuticals department, immediately prior to cessation of work in 2007. Further, that the plaintiff had set up the decision to resign in the hope that he could travel.
126 In support of their case, the defendant relied in particular on:
· The plaintiff’s cross-examination, where he had agreed that up to the time he left the defendant’s employment, he was physically capable and able to perform his work in the Neutracuticals department (transcript p. 18).
· The plaintiff’s cross-examination, where he agreed that if there had not been a redundancy he could have stayed on doing that work (transcript p. 21).
· An entry in Dr Andrews’ notes, on 13 September 2006, where he stated with reference to the plaintiff, “Wants to resign. Will send letters.”
· The plaintiff had informed Mr Elsner that it was time to move on.
127 However, I do not accept the case for the defendant. I accept the plaintiff’s evidence that :
· When he went to the Neutracuticals department, it was not in a role that existed for a particular employee.
· There was no real position there for him, they just put him over there.
· His production manager approached him and asked him what would it cost the company for him to resign.
· He was not replaced when he left (transcript pp. 56-57).
· He was not offered the option of going back to the Rychiger machine (transcript p. 58).
128 On 14 February 2007, a Deed of Release was made between the plaintiff and defendant which stated, inter alia, that:
· Clause C: The Associate sustained an injury on 6 April 2006. X-rays and ultrasounds suggest the injury is a tear in the supraspinatus tendon in the right shoulder. The injury was sustained when closing a security gate which was jammed on the Rychiger (interim line).
· Clause D: The nature of these injuries is such that the Associate is not currently and will not ever be able to perform the inherent requirements of his position.
· Clause E: The employer has made numerous attempts to source alternative duties for the Associate.
· Clause F: On the date of this Deed and on an entirely voluntary basis, the Associate has offered to resign and his resignation has been accepted.
129 Given these clauses in the Deed of Release, I consider that it is inconsistent for the defendant to now contend that the plaintiff is capable of performing a job which essentially was “not real.” I accept that the plaintiff offered to resign as the reality was that the defendant was unable to continue to employ him due to his injury.
130 I find that the evidence does not support the contention by the defendant that the plaintiff left because he wanted to travel. The evidence was that, other than a trip to Gippsland, any travelling done by the plaintiff was 12 years prior to leaving the defendant (transcript p. 50).
131 In re-examination, the plaintiff’s evidence was that he had not felt capable of doing any full-time job over the last three or four years (transcript p. 58). His evidence was consistent with the opinions of:
· Mr O’Brien, that he had “extremely limited ability in relation to upper limb function and therefore would be unlikely to return to full-time employment” (PCB p. 206).
· Dr Horsley, that he had a capacity to work up to 14 hours per week.
· Ms Leitch, that he was realistically unemployable, except on a part-time basis.
132 In addition, Mr Radley was of the opinion that a number of factors mitigated against the plaintiff’s ability to obtain or maintain employment, including the nature and extent of his injury and his limited aptitude for alternative employment of a more sedentary nature.
133 I find that the plaintiff’s evidence, supported by the preponderance of medical evidence, has established a prima facie case that, due to his limited ability with respect to his right shoulder, he is unable to work other than on a part-time basis in work of a lighter nature than his pre-injury work.
134 In Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121, at pp. 36-37, the defendant relied on two jobs in the factory as being suitable employment for the appellant, who had suffered an injury to his right shoulder, as evidence of the existence of real jobs within his capacity. However, in finding for the appellant, the Court of Appeal stated that:
“Because of counsels concession and the appellants evidence that SPC would not rehire him, SPC had to advance some evidence that there were suitable jobs in existence in Mooroopna or the surrounding area, which the appellant a man aged 58,was able to do despite his impairment. In our opinion, it failed to discharge that evidentiary onus. There is no evidence that jobs of the particular kind which existed at SPC existed elsewhere and the appellants evidence was that they did not”.
135 I find that, as in SPC, the defendant in this case has failed to establish that a job, such as the one the plaintiff carried out in the Neutracuticals department, elsewhere. While counsel for the defendant submitted that this case was different, as the plaintiff took a redundancy package, I do not accept that this changes the situation.
136 The plaintiff has lost the capacity to carry out his pre-injury work and I accept that, given his work record (33 years with the defendant) and good work ethic (after the operations for his injury he went back to work), there is no reason to doubt that, absent injury, he would have continued in the same sort of work until 65.
137 The plaintiff’s without injury earnings for the year ending 30 June 2005, were $72,565. Taking into account the comparable full-time earnings of workers employed by the defendant for the last three years, I accept that the figure which fairly represents the plaintiff’s without injury capacity is $85,000.
138 The plaintiff’s earnings, since leaving the defendant, ranged from $8,226 at the lowest in the financial year ending 30 June 2011, to $29,891 at the highest for the financial year ending 30 June 2009. These earnings have been in casual light work and I accept that they represent his realistic with injury capacity to earn.
139 I find that in the absence of evidence of a job such as that in the Neutracuticals department existing outside the defendant and the nature of the plaintiffs injury, his age, skills and inability to do work of a lighter nature on more than on a part-time basis that he has established that he lacks the capacity to undertake suitable employment in which he could earn 60% of his pre-injury earnings.
140 On the basis of the foregoing reasons, findings and conclusions, I grant leave for the plaintiff to bring proceedings at common law pursuant to section 134AB of the Act to recover damages for pain and suffering and economic loss.
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