Buckland v GTE Workplace Management Pty Ltd
[2013] VCC 864
•1 May 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-02606
| WARWICK BUCKLAND | Plaintiff |
| v | |
| GTE WORKPLACE MANAGEMENT PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 and 24 April 2013 | |
DATE OF JUDGMENT: | 1 May 2013 (Revised) | |
CASE MAY BE CITED AS: | Buckland v GTE Workplace Management Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 864 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Injury to the right ankle – defendant conceded that the pain and suffering consequences were “serious” – whether the loss of earning capacity consequences were “serious” – whether ss(38)(f)(ii) calls for the gross income in the period within three years before and three years after injury to be averaged – meaning of the expression “that part” and whether it permits the plaintiff to rely on gross income earned in part of a period within three years before and three years after injury
Legislation Cited: Accident Compensation Act 1985, s134AB (38)(c) and (f)(i) and (ii)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment:The plaintiff be granted leave to bring a proceeding at common law to recover damages for injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr G Coldwell | Shine Lawyers |
| For the Defendant | Mr J Simpson | Lander & Rogers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed 8 June 2011 by which the plaintiff applies for leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr R McGarvie SC appeared with Mr G Coldwell of Counsel for the plaintiff, and Mr J Simpson of Counsel appeared for the defendant.
4 The plaintiff submitted that he suffered a serious permanent impairment or loss of the function of his right ankle.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”) pages 5-19, 25-147, 152-155, and from the defendant’s Court Book (“DCB”), page 74: Exhibit A;
· The defendant tendered the plaintiff’s taxation returns for the year ending 30 June 2005 to 30 June 2010: Exhibit 1;
· The defendant tendered video taken of the plaintiff on 17, 19 and 20 August 2011: Exhibit 2;
· The defendant tendered video taken the plaintiff on 23 and 24 June 2012: Exhibit 3;
· The defendant tendered its Court Book, pages 1A-35B, 36-39C, 70-73, 75 and from the plaintiff’s Court Book, pages 148-149 and 156-157: Exhibit 4.
The statutory scheme
6 The application is brought under the definition of “serious injury” contained in ss(37)(c) of the Act which requires the plaintiff to prove that he has suffered a “serious permanent impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a), (19)(b) and (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined, save where the worker was under 26 years of when the injury was sustained. In those circumstances, ss(38)(e) applies.
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent, that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
The issues
8 Mr McGarvie opened the plaintiff’s case on the basis that the defendant denied that the plaintiff had suffered pain and suffering consequences and loss of earning capacity consequences which were “serious”.
9 In response to Mr McGarvie’s opening, Mr Simpson informed me that the defendant did not admit that the plaintiff’s pain and suffering consequences were serious, and that the real issue to be determined was whether the plaintiff’s loss of earning capacity consequences were serious.
10 After some discussion focused on the stance taken by the defendant relevant to pain and suffering consequences, Mr Simpson informed me that he had instructions to concede pain and suffering.
11 Mr McGarvie made it plain that there were two bases upon which the plaintiff contended that his loss of earning capacity consequences were serious. Firstly, that he was not fit for suitable employment, and secondly, that if he was fit for part-time work, that a comparison between his gross income in the period defined by ss(38)(f)(i) and (ii), and what he might be able to work in as a security officer, would see him succeed in proving a loss of earnings of 40 per cent or more.
12 The plaintiff’s fallback position demonstrated a different interpretation of ss(38)(f)(i) and (ii) which was the subject of a pointed observation by me during the addresses made by Mr McGarvie and Mr Simpson, and something which I will make some comment on later in these reasons.
The Plaintiff's background and the injury
13 The plaintiff was born in 1957. He is now fifty-five years of age. He was previously married. He has four children from a previous marriage. He presently lives with his partner and her son in their home in Sunbury.
14 The plaintiff last attended the Sunbury High School, completing Year 10. He then commenced an apprenticeship in carpentry and joining. At the conclusion of that apprenticeship, he worked in the building industry for the following twenty two years.
15 The plaintiff conducted a building business through a corporate entity known as Woodvale Constructions. He changed the name of the corporate entity to Buckland Constructions. He was actively involved in building work through the corporate entities. He employed a carpenter and two apprentices. The nature of the building work he did through the corporate entities was housing extensions and renovations in the districts around Sunbury, Kilmore, Romsey and Lancefield. The business operated out of a factory at Lancefield.[4]
[4]Transcript 27-28
16 The plaintiff did very well out of the business, to the extent that he built up assets and investments. However, the assets and investments were reduced in about 2000 as a result of an alteration of property interests as between he and his wife upon their divorce. He described having to start from scratch to again build up assets and investments.[5]
[5]Transcript 27-28
17 It would appear that it was basically the result of the plaintiff’s divorce settlement and his desire to move into other work that saw him register with Skilled Engineering, which is a labour hire organisation. He also registered with the defendant, which is also a labour hire organisation.
The Plaintiffs injury
18 The defendant found work for the plaintiff with the railway division of John Holland. He was employed as a casual worker, which he described as full-time permanent work. He was required to work on railway lines. Part of that work involved traffic control and what he described as protection officer work.
19 On 20 May 2008, the plaintiff began a new job while working on the railway line between Geelong and Mildura. He was required to replace and realign existing timber sleepers on the railway line. He had not performed this job before. On 21 May 2008, he stepped down off the railway track onto uneven ground in order to realign a sleeper. The rock ballast under his feet moved. He lost his footing, resulting in a serious fracture to his right fibula.
The Plaintiff's medical treatment
20 The plaintiff was removed from the scene of the incident by ambulance. He was taken to the Maryborough Hospital, where his right ankle was x-rayed. He was then transferred to the St John of God Hospital in Bendigo. His right ankle was bruised and swollen. The surgery that was ultimately undertaken was delayed until the bruising and swelling reduced.
21 Mr James, orthopaedic surgeon, operated on the plaintiff’s right ankle on 23 May 2008. An incision was made over the distal aspect of the right fibula and the fracture was reduced by the insertion of a screw and a plate.[6] The plaintiff was discharged from the hospital after about ten days with a full cylinder ‘below knee’ cast.
[6]PCB 73 and 77-78
22 The plaintiff then saw Dr Pattison, general practitioner. He certified the plaintiff as unfit for work until 30 November 2008. He referred the plaintiff to Mr Hall, physiotherapist. It would appear that the plaintiff commenced physiotherapy with Mr Hall on 17 July 2008. In his report dated 22 November 2010, he noted that the plaintiff attended for regular physiotherapy once to twice per week; had progressed from a CAM walker to the use of a stabilising orthosis; was attending a pool for hydrotherapy and gym; had a positive approach to attempts to recover from his injury, and a positive approach to returning to work.[7]
[7]PCB 54
23 The plaintiff was not able to return to his pre-injury work. In late 2008, the defendant arranged for the plaintiff to undertake a security course through which he gained Certificates II and III. He subsequently obtained work with John Holland as a security guard on the Sydney to Melbourne freight line. His work took him to a region between Albury and Seymour.
24 In late 2009, the plaintiff experienced a deterioration in his right ankle. He returned to Mr Hall, who noted that when the plaintiff returned for treatment on 14 September 2009, he had suffered a flare-up of right ankle pain with the onset of stiffness and weakness by the end of May 2009. Mr Hall spoke to Dr Pattison, which led to the plaintiff being referred to Mr Holland, orthopaedic surgeon.[8]
[8]PCB 55
25 The plaintiff saw Mr Holland on 1 December 2009. It would appear that he saw him for two problems, namely, his right ankle and for right hip pain. Mr Holland referred the plaintiff to Mr Bedi, orthopaedic surgeon, because he specialised in injuries of the kind suffered by the plaintiff.
26 The plaintiff saw Mr Bedi, orthopaedic surgeon, on 29 March 2010. He considered that the metalware in the plaintiff’s right ankle was troublesome. He advised the plaintiff to undergo an arthroscopy, which was performed on 25 May 2010. He removed the fibula plate. He found the following:
“The arthroscopy revealed extensive scarring in both the medial and lateral gutters as well as over the anterior ankle joint. An extensive distal tibial spur was resected along with an anterolateral loose body. On the talar surface, there was diffuse Grade 2-3 chondral degeneration and on the tibial side, it was of Grade 2 severity. Loose chondral tissue was debrided.”[9]
[9]PCB 89
27 Mr Bedi reviewed the plaintiff on 14 July 2010 when the plaintiff described ongoing anterior ankle pain similar to what he was experiencing pre-operatively. At the next review on 1 September 2010, the plaintiff was using orthotic measures in his shoes. He considered that the degenerative changes in the plaintiff’s right ankle were likely to progress and would result in increasing pain, stiffness and disability, and that it was likely that the plaintiff would require further surgery, such as an ankle fusion.[10]
[10]PCB 89 and 93-95
28 Following the arthroscopy, the plaintiff returned to physiotherapy with Mr Hall, and also hydrotherapy treatment. He was also given a cortisone injection into his right ankle. He was also reviewed by Dr Pattison. It would appear that he was unable to work from about the time when he experienced the deterioration in his right ankle in late 2009. He made a return to work some time in 2011 as a security guard with a company known as G4S, working in the Melbourne Magistrates’ Court.[11] He only engaged in this work for a period of five to six weeks.
[11]PCB 13 and transcript 42-43
29 In February 2012, he obtained casual work as a field officer for Corrections Victoria driving a 12-seater bus which conveyed offenders to community work programs. He worked eight hours per day, four days per week, totalling 32 hours per week, for which he was paid about $18 an hour. On 25 June 2012, he reduced his hours of work to three days per week because of increasing pain in his right ankle.[12] He worked alternate days, that is, Monday, Wednesday and Friday. He ceased working for Corrections Victoria on 15 August 2012 because he was struggling due to severe pain and swelling in his right ankle.[13]
[12]PCB 15-16
[13]PCB 17-18 and transcript 43-45
30 It would appear that the plaintiff was not just driving a bus. He was required to be on his feet supervising the offenders, which sometimes involved having to walk over uneven ground, and otherwise to be on his feet.[14] The plaintiff has not worked since. Dr Pattison reviewed the plaintiff before and after he ceased working for Corrections Victoria. In a report dated 17 April 2012, he noted that the plaintiff was suffering right ankle pain whenever he walked, stood or moved.[15] In a report dated 15 June 2012, he was of the opinion that the plaintiff could not stand or sit for long periods of time, and that working three days per week was his maximum capacity for work.[16] In a report dated 13 March 2013, he was of the opinion that the plaintiff was unable to work and that his level of incapacity would probably continue indefinitely.[17]
[14]Transcript 44-45
[15]PCB 44
[16]PCB 45
[17]PCB 46
31 Dr Pattison referred the plaintiff to Dr Jensen, physician. The plaintiff first saw him on 10 December 2012. At the time Dr Jensen first saw the plaintiff, he had used a variety of medication to deal with the pain he was experiencing. He described the extent of his use of it in his affidavits sworn 1 February 2011,[18] 18 June 2012,[19] July 2012[20] and 5 April 2013.[21] In his last affidavit, he referred to taking six Panadol Osteo per day, two Panadeine Forte per day, Lyrica, Celebrex, and Effexor for depression.
[18]PCB 10
[19]PCB 13
[20]PCB 15-16
[21]PCB 18-19
32 Dr Jensen treated the plaintiff for a component of neuropathic pain arising from the injury to his right ankle. In his report dated 11 January 2013, he noted that the combination of Lyrica and Effexor enabled the plaintiff to obtain a reasonable level of control over the component of neuropathic pain which enabled him to sleep better. Dr Jensen considered that the ultimate and definitive treatment for the plaintiff might be a triple fusion of his right ankle.[22]
[22]PCB 66
33 In his last report dated 27 February 2013, Dr Jensen considered that the plaintiff’s prognosis was very guarded. He considered that the plaintiff had a permanent incapacity for any duties which required prolonged weight-bearing activities; that he might be able undertake predominantly sedentary-type duties if he were able to get up and move about because his sitting tolerance was also compromised; that he might be able improve his physical rehabilitation guided through physiotherapy, and that he might require injections to address his pain.[23]
[23]PCB 70-71
The medico-legal opinions
34 Neither Mr McGarvie nor Mr Simpson suggested that there was any controversy in the medico-legal opinions. I have read all of the opinions carefully and have concluded that all of the medico-legal specialists are in agreement regarding the nature of the injury suffered by the plaintiff to his right ankle and that he is only fit for sedentary work.[24]
[24]Mr Miller, orthopaedic surgeon, who examined the plaintiff on 21 May 2012 and 4 April 2013, particularly at PCB 114-117 and 122-124; Dr Middleton, occupational health and rehabilitation consultant, who examined the plaintiff on 2 July 2012 and 25 March 2013, particularly at PCB 145-147; Dr Brian, occupational physician, who examined the plaintiff on 9 November 2010 and 16 August 2011, particularly at DCB 20-21, 23, 24 and 27; Dr Baker, occupational physician, who examined the plaintiff on 4 July 2012 and 2 October 2012, particularly at DCB 35 and 35d-35e; and Mr Hall, physiotherapist, at DCB 69
35 Mr Simpson tendered the medical reports of Associate Professor Wallin, occupational physician, who examined the plaintiff on 28 October 2008;[25] Mr Shannon, orthopaedic surgeon, who examined the plaintiff on 21 July 2009,[26] and Dr Poppenbeek, occupational physician, who examined the plaintiff on 12 October 2009.[27] I have paid little regard to the opinions expressed in those medical reports because they precede the arthroscopy performed by Mr Bedi and the treatment provided by him; the treatment provided by Dr Pattison and Mr Jensen, and the plaintiff’s attempts to return to work following his recovery from the arthroscopic surgery.
[25]DCB 1-10
[26]DCB 11-15
[27]DCB 17
36 It seems to me that unless those examiners had that material and were able to re-examine the plaintiff, their opinions are rather more historical than of any immediate relevance and usefulness in determining the matters falling for my consideration.
The Plaintiff's capacity to work
37 Mr Simpson described the plaintiff as having a capacity for sedentary employment. He emphasised the opinion of Dr Baker following his examination of the plaintiff on 4 July 2012 in which he said:
“He notes he has qualifications in security and his preferred occupation would be undertaking working in a security gatehouse where he is able to move about and sit and rest and checking in vehicles. He believes he would be capable of this type of work.
I personally have concerns that the constant standing and moving and changing position, like other activities he has undertaken, could cause an aggravation. I would like to see him undertaking mainly sedentary work with occasional change of position as he required and not on a frequent basis as would occur if he was checking in vehicles through a gatehouse facility."[28]
[28]DCB 35
38 Dr Baker is not the only examiner to express the opinion that the plaintiff needs to avoid aggravating his right ankle. It appears to be inherent in the opinions expressed by Dr Pattison in his reports dated 15 June 2012 and 13 March 2013, where he was of the opinion that the plaintiff might have problems maintaining long-term employment, and might have to undergo surgery in the form of a triple fusion of his right ankle.[29] I infer that Dr Baker was of a similar opinion based upon a likely deterioration in the plaintiff’s right ankle which would lead to loss of employment and major surgery.
[29]PCB 45-46
39 Dr Jensen was of the opinion that it was highly likely that the degenerative changes in the plaintiff’s right ankle would deteriorate which might require fusion of his right ankle.[30] Mr Miller was of the opinion that the plaintiff’s symptoms showed a pattern towards deterioration and had worsened when he compared what he was like on the two previous occasions he examined him.[31] Inherent in the opinion of Dr Middleton is an acceptance that the plaintiff has accelerated degenerative changes in his right ankle and may, as a last resort, require fusion of his right ankle to gain control of his right ankle pain, and that the rate of degenerative change will continue, leading to that last resort.[32]
[30]PCB 71
[31]PCB 122
[32]PCB 145-146
40 Mr Simpson placed particular emphasis on one statement made by Dr Jensen in his report dated 27 February 2013 that the plaintiff had not yet reached a plateau in terms of his potential physical rehabilitation. Mr Simpson also emphasised a similar statement made by Mr Hall that, because the plaintiff had better control of the neuropathic component of his pain, he could push himself with rehabilitation “with great gusto”, comprising home exercise, hydrotherapy, access to pain-relieving modalities and manual therapy. However, Mr Hall did not say what that rehabilitation was to be directed to. Was it to the plaintiff’s right ankle, or to his general physical state?
41 It is clear from some of the medical material that the plaintiff gained a fair deal of weight after he suffered injury to his right ankle. Efforts were made by him to reduce his weight, but my impression is, with little success. It seems to me that Dr Middleton made an accurate assessment in his last report dated 5 April 2013 when he noted that the plaintiff had gained 30 kilograms in weight, and that weight gain would aggravate the condition of his right ankle. He suggested funding to assist the plaintiff to achieve weight loss, improvement of gait and proprioception.[33] I assume the latter word means having the plaintiff obtain better control over his right ankle and its capacity to function within the context of his whole body functioning. However, Dr Middleton accepted that rehabilitation has its place, but in the context of his overall opinion, which appears to me to be consistent with the other opinions, that the plaintiff is fit for sedentary work, but needs to be careful that the work he undertakes does not aggravate his ankle, and that the work enables him to change his posture because of his intolerance to sitting for too long.
[33]“Proprioception”’ was used by Dr Jensen at PCB 71. He did not explain the context of its use. One meaning I have found for it is the unconscious perception of movement and spatial orientation arising from stimuli within the body itself.
42 Mr Simpson referred me to a job description in a report of NES Vocational Assessment in which there is the description of the work undertaken by a security officer. The description is accompanied by the work to which it applies, described as “gatehouse, reception, static, mobile and control room only”.[34]
[34]DCB 52
43 The particular duties under that job description are:
“Patrols areas and check doors, windows and gates for unauthorised entry.
Watches for irregularities such as fire hazards, malfunctions of machinery or equipment, light left on, leaking water and pipes and unlocked security doors.
Issues security passes to unauthorised visitors and gives directions.
Records time of entry and departure of authorised persons and times of inspections.
Monitors alarms and contacts supervisors, fire brigades or police by telephone or radio if security is breached.”[35]
[35]PCB 52
44 Mr Simpson cross-examined the plaintiff from that job description, and Mr McGarvie re-examined the plaintiff from the very same job description. Initially, I was under the impression that the plaintiff considered that he could do that job, but during re-examination, he was asked to give very particular consideration to whether he could undertake patrol work which would involve walking around premises, checking doors, windows and gates for unauthorised entry. He said he could not, because it would involve the use of a lot of stairs and walking in between areas to be patrolled.[36]
[36]Transcript 82-83
45 It is not clear whether Dr Baker had the particular NES report with him at the time when he examined the plaintiff on 4 July 2012. I assume that he did. However, Dr Baker seemed to think that the security gatehouse work involved the plaintiff doing no more than moving about, sitting, having a rest and checking in vehicles. The first description of the duties involved are patrolling, and the second suggests patrolling as well, because as a matter of logic and commonsense, it would not be possible for a security guard in a gatehouse to detect fire hazards; malfunctions of machinery or equipment; lights left on; leaking water and pipes, and unlocked security doors, in the absence of a patrol of the premises.
46 The essence of Dr Baker’s opinion is that security gatehouse work beyond an occasional change of position would not be suitable for the plaintiff. That is consistent with the other medical opinions which I have summarised above. Therefore, I do not accept the submission made by Mr Simpson that there is medical support for the proposition that the job as a security officer is suitable.
47 Mr Simpson submitted that the films taken of the plaintiff are inconsistent with someone who has the limited physical capacity for work contended for by the plaintiff. I disagree.
48 The film taken on 17 August 2011 commenced at about 7.53am. It showed the plaintiff at the front of his house, and then pulling in an empty wheelie bin. The film taken on 19 August 2011 commenced at about 14:50 hours. The plaintiff arrived at his home with building materials on the roof of his car. The building materials appeared to be sheets of flat material with a surface area consistent with the size of the surface area of the roof of the plaintiff’s station wagon. He removed one at 14:57 hours and some others by 17:24 hours. The film taken on 20 August 2011 which commenced at about 10:30am shows the plaintiff on the floor of an upstairs extension of his house. At about 10:42am, it shows the plaintiff lifting a sheet of building materials with another man. At about 11:24am, it shows the plaintiff standing on the floor of the upstairs extension of his house.[37]
[37]Exhibit 2
49 The film taken on 23 June 2012 commences at about 11:11am. It shows the plaintiff walking in a car park and at his home. The film taken on 24 June 2012 commences at about 11:42am. It shows the plaintiff seated at an outdoor table eating food. At about 12:21pm, the plaintiff is at a timber yard, and later is seen loading some short lengths of timber into his car.[38]
[38]Exhibit 3
50 Mr Simpson cross-examined the plaintiff on what was shown in the films. The plaintiff said that he put on an upstairs extension to his house. He admitted purchasing building materials, and doing some work on the upstairs extension using tools.[39] It was very difficult to see what the plaintiff was doing on the floor space of the upstairs extension. I accept his evidence that he was doing very little, and I also accept his evidence that he could do three or four hours’ work on his extension, but it would be spread over an entire day, and he would not do that every day.[40] The major works were undertaken by a builder engaged by the plaintiff.
[39]Transcript 55-58
[40]Transcript 55-58
51 Mr Simpson submitted that the evidence discloses that the plaintiff can work 17.5 hours per day. That was based upon a form filled in by the plaintiff which he signed on 28 September 2012. Question 15 on the form asks “Please state your current daily activities”, to which the plaintiff wrote the following answer:
“I can do most things but out of any 1 day on a good day I can do 3-4 Hrs spread out over 8 hours is slightly possible with plenty of rest in between.”[41]
[41]DCB 69C and transcript 111
52 Mr Simpson cross-examined the plaintiff, putting to him that the answer represented an admission that he could work three to four hours per day, five days per week. The plaintiff said that he could not work those hours now. He said that he left Corrections Victoria in August 2012 due to an aggravation of the condition of his right ankle with swelling and pain, and it would appear that he meant that, because of that experience, he could not see himself working for 17.5 hours per week in security.[42]
[42]Transcript 77-78
Disposition
53 I accept the plaintiff’s evidence in whole. I consider that he gave his evidence in a straightforward and uncomplicated fashion.
54 The plaintiff made serious efforts to rehabilitate himself following the arthroscopic surgery, and succeeded in returning to work until 15 August 2012, when the injury to his right ankle prevented him from undertaking what appears to me to be relatively light work. He was driving a bus, and was on his feet periodically supervising offenders which sometimes involved having to walk over uneven ground, and otherwise to be on his feet.
55 I accept the medical evidence, and also the plaintiff’s evidence, that if he has any fitness for work, it is in sedentary work which would allow him to change his posture. Not only has the plaintiff an intolerance to standing, walking and exposing his right ankle to stress and strain, but he also has an intolerance to sitting for too long. It seems to me that those deficits would be unlikely to outfit him for any work, and certainly not as security officer which involved patrol work.
56 I do not accept that the films demonstrate very much at all. The plaintiff has never said that he is unable to do anything. He candidly admitted that he can undertake tasks for three or four hours per day so long as they are spread out over eight hours. It is difficult to conceive of a job that would allow him that degree of flexibility, and certainly not as a security officer.
57 I accept that the medical evidence demonstrates clearly that the plaintiff needs to exercise care not to aggravate the condition of his right ankle because the next port of call as far as treatment is concerned is a triple fusion, which I infer will put the plaintiff in a significantly worse position insofar as retaining any capacity for any work is concerned.
58 It is for these reasons that I find that the plaintiff has suffered an impairment of the function of his right ankle with loss of earning capacity consequences which render him unfit for work as a security officer, or for that matter, any other work for which he is outfitted by training and experience.
Afterword
59 Mr Simpson developed a thesis that the plaintiff could work 17.5 hours per day. He submitted that 17.5 hours is 46.05 per cent of an average working week of 38 hours. The weekly gross income for a security officer is $1,327, or annualised is $69,004. 46.05 percent of $69,004 is $31,776.34. He then submitted that an average of the plaintiff’s earnings is $49,488.40 applying ss(38)(f)(ii) of the Act. If that is correct, then $31,776.34 is 64.20 per cent, which means the plaintiff would fail to prove the relevant degree of loss of earning capacity consequences.[43]
[43]This is based upon my recalculation of the figures put to me by Mr Simpson
60 However, I do not accept that the method of calculation is correct. Subsection (38)(f)(ii) of the Act does not invite an averaging of the gross income from personal exertion within the three years before and the three years after injury. What is abundantly clear to me is that the legislature, by use of the words “that part” intended that a plaintiff can point to a part of the period within three years before and three years after injury for the purpose of determining the gross income which “most fairly reflects the worker’s earning capacity had the injury not occurred”. To average the plaintiff’s income is hardly to create that reflection.
61 For the financial year ending 30 June 2008, the plaintiff earned $68,925. I can see no reason why it does not form “that part” of the period within three years before and three years after injury, and cannot be applied by the plaintiff into the formula to determine whether he succeeds or fails in proving loss of earning capacity consequences. Applying Mr Simpson’s thesis and using $31,776.34 against $68,925, easily demonstrates that the plaintiff has suffered a loss of earning capacity of 40 per cent or more.
62 I debated that very issue with Mr Simpson to test his thesis. I was not satisfied that the thesis had any merit, but notwithstanding my strong indication of how ss(38)(f)(ii) of the Act must be interpreted, and applying the figures referred to in the last preceding paragraph, the defendant refused to accept the correctness of my interpretation.[44]
[44]Transcript 130-136
Conclusion
63 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity arising out of his employment with the defendant.
64 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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