Capper v Munday Sales Pty Ltd & Anor
[2013] VCC 1015
•29 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-10-01915
| JORDAN CAPPER | Plaintiff |
| v | |
| MUNDAY SALES PTY LTD and VICTORIAN WORKCOVER AUTHORITY | Defendants |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 and 31 July and 1 August 2013 | |
DATE OF JUDGMENT: | 29 August 2013 | |
CASE MAY BE CITED AS: | Capper v Munday Sales Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1015 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Application for leave to recover damages for pain and suffering and loss of earnings – work-related permanent serious impairment of the plaintiff's non-dominant left hand – worker under 26 years of age at date of injury – defendants conceded pain and suffering consequences were “serious” – whether plaintiff required to meet requirements of section 134(38)(g)
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners & Ors v Podolak [2005] VSCA 33; State of Victoria v Rattray [2006] VSCA 145; Stateof New South Wales v Moss 54 NSWLR 536; Jarvis v Woolworths Limited [2012] VCC 1329
Judgment: Leave granted to plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Chancellor | Maurice Blackburn |
| For the Defendants | Mr R. Kumar | Hall & Wilcox |
HER HONOUR:
Introduction
1 The plaintiff is 23 years of age. Currently he lives with his fiancée.
2 From an early age until age 14, the plaintiff took medication to treat Attention Deficit Hyperactivity Disorder (ADHD). Both in his affidavit and oral evidence, the plaintiff described early learning difficulties with ongoing literacy problems affecting particularly the speed at which he writes and his ability to spell.[1]
[1]Plaintiff’s Court Book, Exhibit P1, PCB 17b and d and transcript (TN) 93-94
3 In 2004, the plaintiff suffered fractures to his skull, left clavicle and right tibia and fibula, in a transport accident. However, after rehabilitation, he returned to school. In 2005, having completed Year 9, the plaintiff left school.
4 The plaintiff's parents have served in the Australian Defence Force (the ADF). Indeed, family members on both sides have a history of service.[2] It was the plaintiff's ambition to commence an apprenticeship when he became eligible to join the ADF at 17 years of age.
[2]PCB 19-21
5 In the meantime, in March 2006 the plaintiff completed a pre-apprenticeship course with Hand Brake Turn, an organisation that helps young people gain skills and training in automotive trades. He was awarded a Certificate 1 in Automotive. Having tried unsuccessfully to obtain an apprenticeship as a motor mechanic, at 16 years of age, on 6 June 2006, the plaintiff commenced short-term, full-time employment with the first defendant in its metal recycling business. He worked five days per week between 7:30 am and 5 pm as a general hand operating a hydraulic machine, a baler, used to crush aluminium cans.
6 On 29 June 2006, the lid of the baler crushed the plaintiff's hand, severely damaging the little finger and fracturing the ring finger (the injury). The plaintiff was conveyed by ambulance to the Dandenong Hospital. His little finger was amputated at the middle phalanx. However, having been advised that his finger was necrotic, on 17 July 2006 his treating surgeon, Mr Crock amputated this finger through the metacarpo-phalangeal joint.
7 In this action the plaintiff seeks leave to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to recover damages for injury arising out of or in the course of, or due to the nature of his employment with the first defendant.
8 Leave was sought under paragraph (a) of the definition of "serious injury" to recover damages for both pain and suffering and loss of earnings. The application under paragraph (a), relates to permanent serious impairment or loss of a body function,[3] namely the plaintiff's non-dominant left hand.
[3]Section 134AB (38)(b)
9 A further application, made under paragraph (c) for permanent severe mental or permanent severe behavioural disturbance or disorder, was abandoned during final submissions.
10 At hearing, the defendants conceded compensable injury and that the pain and suffering consequences to the plaintiff of the injury were, when judged by comparison with other cases in the range of possible impairments or losses of body function, permanent and fairly described as being more than significant or marked and at least very considerable.[4] What remained in contention was whether, leaving to one side the psychological or psychiatric consequences of the injury,[5] any injury-related loss of earning capacity satisfied the requirements of section 134AB(38) of the Act for the loss of earning capacity consequence of the impaired hand. In this regard, the defendants disputed the extent to which the common law position applied to the plaintiff, who was under 26 at the date of the injury and contested the further submission that the plaintiff was not also required to meet the requirements of section 134AB(38)(g).
[4]HumphriesvPoljak [1992] 2 VR 129 [140] and section 134AB(b) and (c)
[5]Section 134AB(h)
The evidence called and tendered
11 Subject to some minor amendments, the plaintiff deposed to the accuracy of his three affidavits sworn on 18 December 2009, 30 October 2012 and 23 July 2013 respectively. He was subjected to lengthy cross examination.
12 The plaintiff and the defendants tendered their respective Court Books comprising:[6]
· multiple reports prepared by treating doctors and medico-legal specialists; and
· multiple reports prepared by employment and vocational assessment specialists.
[6]Exhibit P1 and Defendants' Court Book, Exhibit D1 (DCB) respectively
13 The plaintiff's tender also included an affidavit sworn on 29 October 2012 by his mother, Tracey Capper, to which she exhibited a statement, made by her on 23 October 2012 in support of this application, ADF recruitment documents, correspondence and pay rates,[7] a number of payslips[8] and various documents relating to the plaintiff's participation in the Hand Brake Turn motor mechanics training workshop for which he was awarded the Certificate 1 in Automative in 2006.[9]
[7]PCB 123-125, 129-130 and 142-143
[8]PCB 147-151a
[9][9] PCB 152-159
14 Where, as in this case, Ms Capper had not outlined the basis for her evidence concerning the plaintiff’s ambition to join the AFD and his experience of pain, the defendants appropriately questioned the weight to be afforded this evidence.[10]
[10]TN 165-166
The early medical treatment
15 The plaintiff was discharged from the Dandenong Hospital into the care of his surgeon the day after the second surgical procedure.[11]
[11]PCB 26
16 On referral from his general practitioner, Dr Dunn, between July 2006 and November 2006, the plaintiff underwent hand therapy with manipulative physiotherapist, Mr Wilson. In cross-examination, the plaintiff agreed with the statements in the physiotherapist's report dated 8 October 2007, that when discharged he had a good range of movement of his left hand and fingers and that the therapy received had provided some benefit.[12] However, he disagreed with the additional qualitative assessment made by the physiotherapist to the effect that the plaintiff had achieved good strength and a strong grip ("I wouldn't say that’s so"[13]) and with the assertion that he could perform the following functional activities:
[12]Transcript (TN) 30
[13]TN 27
· digging ("I hadn't really tried anything really physical at that point my hand was still quite sore and I figured it was best to let it heal" and "I attempted. It was quite painful and I wasn't able to keep it up for any length of time”[14];
· lawn mowing ("I haven't been able to mow the lawns since my injury", "I've tried many times" and "I commenced trying to mow the lawn quite a bit further down the track after seeing him, so there was never an opportunity to discuss that with him"[15]);
· grasping hold of small objects. The plaintiff said he had a problem grasping hold of small objects ("I'm unable to cup my hands, smaller objects like nuts and bolts or change just roll out of the side of my hand"[16]), but conceded that he was able to pick up small objects.
[14]TN 30
[15]TN 27-29
[16]TN 29-30
17 In this application, it is important to understand the nature and extent of the consequences of the plaintiff's disability in 2013 and for the foreseeable future. Overall, I found the plaintiff to be a straightforward and thoughtful witness who gave no appearance of exaggerating his symptoms or disability or his evidence. On the contrary, he impressed me as someone who had, at a relatively young age and despite many setbacks including the injury, remained determined to obtain employment.
18 I was satisfied that when he gave this evidence about events many years in the past, the plaintiff probably did believe that, in the months following the second surgical procedure and before hand therapy ceased, he had not tried any real physical activities such as digging or lawn mowing. For these reasons, I was not satisfied that this evidence impacted on the plaintiff's credit.
19 The plaintiff was reviewed by Mr Crock in September 2006 and in November 2007. Among other things, Mr Crock was told that approximately two to three months after the injury the plaintiff returned to work with a plastering company, but had ceased this work after he knocked his hand “causing the injury to re-open and bleed quite considerably.”[17] In cross-examination, the plaintiff recalled that this was temporary employment (three weeks) with Bos Plastering, obtained through an agency. He said he worked for 10 days only and agreed that this was because of the incident described in Mr Crock's report. The plaintiff's evidence was that, whilst he had tried to return to this work, his left-hand disability made this too difficult. [18]
[17]PCB 23
[18]TN 54
20 In his report dated 29 November 2007, Mr Crock advised a 5% impairment score of the plaintiff's whole person, an impairment assessment with which specialist in plastic and hand surgery, Mr Stapleton, and specialist in plastic and reconstructive surgery, Mr Anstee, agreed. They examined the plaintiff at the request of either the insurer or the defendants’ solicitors on 4 August 2008 and 5 March 2010 respectively.[19]
[19]PCB 24 and DCB 40 and 53
Post injury employment
21 The plaintiff deposed that following the injury, he was unfit to work as a motor mechanic ("I stopped looking for an apprenticeship as a motor mechanic. I had reduced grip strength and reduce manipulative skills as a result of my left hand injury. My hand was very sensitive. A motor mechanic’s hands have to work in confined spaces and are often knocked. I got severe pain if the stump of my little finger was knocked. I had a lot of difficulty doing mechanical work on my own car which is something I had previously enjoyed"[20]).
[20]PCB 17b
22 The difficulties he faced in returning to manual employment, prompted a return to study at a TAFE college where, in 2007, the plaintiff completed Year 10 and partially completed Year 11 studies under the adult education program. Studying and written exams, the plaintiff deposed, had been all the more difficult because of his long-term problem with writing and spelling.
23 On 23 April 2007, orthopaedic surgeon, Mr O'Brien, examined the plaintiff at the request of the insurer.[21] His report generally supported the plaintiff's evidence that he was unfit to return to manual duties requiring the use of his left hand. On examination, among other things, Mr O'Brien found:
Ø marked dysaesthesia around the amputation stump and significant pain on pressure, which he thought suggested the possibility of neuroma formation; and
Ø quite limited left-hand function ("He has difficulty gripping any objects due to significant pain and the continuing phantom presence of the 5th finger does cause functional disturbance of use of the hand. …"[22]).
[21]PCB 30-33
[22]PCB 33
24 At the time, Mr O'Brien considered the plaintiff unfit to undertake duties that involved major use of his left hand. He recommended that an opinion be sought from an expert hand surgeon, who Mr O'Brien believed might be able to help improve the severity of pain experienced at the site of the amputation stump.
25 I note that other than recording the plaintiff’s complaints (“He gets pain at the amputation stump of the left little finger. The pain is worse in cold mornings and the stump area is sometimes very tender”[23] and “The graft is more sensitive to chemicals used in cleaning…Slight trauma to the amputation stump gives him severe pain which lasts for a few seconds”[24]), the reports submitted by Mr Stapleton in 2008 and Mr Anstee in 2010 did not directly address the need, if any, for further surgery.
[23]DCB 39
[24]DCB 45
26 However, allowing for the opinion of another specialist in plastic and hand surgery, Mr Behan, who examined the plaintiff at the request of his solicitors on 29 November 2010,[25] I accepted as likely that, in the years following Mr O'Brien's examination, the plaintiff continued to be troubled by significant residual symptoms. I also accepted that, as of late 2010, the prospect of further surgery to relieve neuroma formation at the distal limit of the scar/amputation site could not be excluded as one possible means of management of his symptoms (“Any such surgery would require burying of the neuroma in the metaphysics of the metacarpal...”[26]).
[25]PCB 40-55
[26]PCB 44
27 However, I did not understand the advice given by Mr Behan, to amount to a recommendation that the plaintiff undergo this surgery, the decision for which, as Mr Behan also noted, could be influenced by the plaintiff’s mental health issues. This was no doubt a reference to the plaintiff’s deteriorating mental state, which within a few weeks of Mr Behan’s examination resulted in his voluntary admission to a psychiatric facility.
28 Relevantly, the plaintiff continues to complain of sensitivity and sharp pain.[27] His current general practitioner, Dr Rillstone has described the plaintiff's symptoms as “post injury neuropathic pain syndrome.”[28] However, having examined and reported on the plaintiff's condition in 2013, neither this doctor nor occupational physician, Dr Horsley have recommended surgical intervention to manage the symptoms currently reported.
[27]TN 24-26
[28]PCB 28b
29 The plaintiff deposed that in 2008, he applied to join the ADF. The plaintiff's evidence was that he had not sought a motor mechanic apprenticeship because he believed he would be unable to cope with this work. Rather, the plaintiff applied to join as a rifleman, which, he said, involved performing general infantry work.
30 At hearing the defendants relied on a letter dated 22 January 2008 addressed by the plaintiff's treating general practitioner, Dr Dunn to "To Whom It May Concern". In this letter, in addition to summarising the plaintiff's medical history, the doctor said: "His hand function is completely normal and in particular he can cup his hand, and grip and dexterity are normal. Overall he has made a full recovery from his injuries and I consider that he has the health and physical functioning of a normal 18 year old man."[29]
[29]DCB 142
31 During cross examination, the plaintiff disagreed with the family doctor's assertion that his hand function including his ability to cup his hand, his grip strength and dexterity were normal. In re-examination, the plaintiff explained that when Dr Dunn wrote this letter in support of his application, the doctor well understood the importance to the plaintiff of joining the ADF. As my further discussion of the evidence of the specialists in due course demonstrates, I have accepted that since the injury the plaintiff probably has not and will not in the foreseeable future achieve completely normal hand function. In all, I found the plaintiff's explanation for the doctor’s very positive assessment entirely plausible.
32 In any event, the plaintiff said that having at first failed the maths test, with assistance from his grandfather, who tutored him in maths, he eventually passed the ADF written and aptitude tests and, no doubt assisted by Dr Dunn's letter, he also passed a medical examination.[30] However, the plaintiff was still required to undergo a physical fitness assessment and test[31] prior to the enlistment date on 9 September 2008.
[30]PCB 123
[31]PCB 124-125
33 The plaintiff deposed that in preparation for the test on 28 August 2008, he trained daily for several months. In cross-examination, the plaintiff said he trained between March and August 2008 (two-and-a-half to three hours per day, five to six days per week[32]) with the assistance of a friend who was a bodybuilder and regularly ran triathlons and he (the plaintiff) attended a gym. He said he did not use pain killing medication (either Aspro Clear or a mixture of ibuprofen and codeine based medication) because he believed that the side effects he experienced with pain killing medication, particularly opiate medication (“Dizziness, nausea, sleepiness, numbness in limbs”[33]), would inhibit his ability to train and to perform the test.[34]
[32]TN 47
[33]TN 48-49
[34]TN 48-50
34 As the recruitment material tendered confirms, in order to meet the physical fitness standards for entry the plaintiff was required to perform a minimum of 15 push-ups. In cross-examination, the plaintiff said that he did two trial runs in the lead up to the test. He failed these trials and had moved the enlistment date forward once to give himself more time to prepare. The earlier trials had not counted because they were outside the time for testing for the new enlistment date.
35 The plaintiff deposed that, on the day of the test, despite three attempts, with at most a two minute break between each, his left hand became sore and swollen. The highest score he managed was 9 push-ups on his first attempt. Whether or not during training for this test the plaintiff had, as he conceded, on occasion achieved the minimum of 15 push-ups (“.. most of the time it was too difficult due to pain” and “..it was very difficult due to swelling in my hand and once again pain” and sensitivity “Not just the scaring(sic) but the area around the palm where it pushes it is just as painful” [35]), as a consequence of the impaired functioning of his left hand, when required to do so, the plaintiff could not achieve the minimum number of push-ups and he failed the fitness test.
[35]TN 47-47
36 The plaintiff's evidence was that, after failing the test and, having discussed this with his doctor, he had not made further enquiries with the ADF because he believed that his hand “wasn’t going to get any better any time soon.”[36] As I understood the plaintiff's evidence at hearing, his hand has never improved to the point where he would be able to pass this fitness test.
[36]TN 51
37 It appears that, having failed to realise his ambition to join the ADF, the plaintiff lost confidence, his ongoing unemployment was a source of conflict with his parents and he became depressed.
38 In December 2008, the plaintiff's general practitioner prescribed the antidepressant medication, Efexor. On 13 February 2009, he referred the plaintiff to psychologist, Dr Griffith for treatment of depression and anxiety. Her report, dated 13 February 2012, indicates that the plaintiff attended two sessions. The psychologist diagnosed a major depressive disorder and a severe anxiety disorder to which, she said, the injury had contributed.
39 In mid-2009, the plaintiff's family sent him to live with an uncle in Darwin. This appears to have been a response to ongoing conflict in the home. In any event, under cross examination, the plaintiff said that while living in Darwin, he had unsuccessfully applied for and was interviewed for a number of job positions (“Coles, Safeways, whatever was available, cleaning jobs”[37]). After three months, the plaintiff returned to Melbourne because his money had run out and his grandfather was ill.
[37]TN 56
40 In late 2009, the plaintiff’s father arranged an interview for his son for a cleaning job with a former employer, Bond Caretaking. The plaintiff was employed as a casual. He worked hours varying between approximately 4 and 30 hours per week. This was, mostly as part of a team of workers cleaning at construction, residential and school sites and he cleaned fridges at Coles.
41 In cross-examination, the plaintiff agreed that his cleaning duties had involved mopping, vacuuming, sweeping, dusting and emptying garbage bins into larger garbage bins.
42 The plaintiff deposed that a downturn in the business led to the termination of his employment in about February 2010. However, the plaintiff said that before this happened the job had been more difficult because "sometimes" his hand became red, swollen and inflamed.[38]
[38]PCB 16 and 17a and TN 56-58
43 2010 appears to have been a particularly difficult year for the plaintiff due to the loss of his job, the death of his grandfather in September 2010, his grandmother’s admission to a nursing home and his lack of success in finding further employment. Nevertheless, despite his worsening mental state, in cross-examination, the plaintiff said that he continued looking for work ("Anything I could get my hands on and was able to do, mostly cleaning, assembly-line work, that sort of stuff"[39]), he made cold calls, he applied for advertised positions, he registered with job agencies and he attended interviews without success.
[39]TN 58
44 For a short period in late 2010, the plaintiff obtained full-time employment as a caravan assembler, with a company called "A-Van".
45 The plaintiff told the Court that he worked in the roof assembly section where he and others were required to assembled roofs, lift these and shift them to another area. In cross-examination, the plaintiff agreed that both physical and psychological factors had contributed to the cessation of this employment.[40] The physical problem was his inability to lift with his left hand because the plaintiff said he needed to stop "constantly" when helping other members of the team lift caravan roofs weighing up to 300 kg. According to the plaintiff, this angered other members of the team.[41]
[40]TN 59
[41]TN 59-60
46 Mr Behan’s evidence in late November 2010 is supportive of the plaintiff’s claim that his physical injury had contributed to the loss of this employment because he concluded that the plaintiff’s over all condition had not stabilised due to clinical indications of neuroma and dysthaesia. Moreover, from an industrial loss point of view, Mr Behan considered the plaintiff disabled due to pain and inconvenience with various activities, difficulty with heavy manual activity, limited dexterity and his loss of hand function.[42]
[42]PCB 44-46
47 On 22 December 2010, the plaintiff was admitted as a voluntary patient to the Monash Medical Centre Adult Psychiatric Unit. He was discharged after 2 1/2 weeks. The report submitted by Southern Health consultant psychiatrist, Dr Hughes, dated 17 May 2011, among other things, confirms that on discharge in January 2011, the plaintiff's mood had improved.[43]
[43]PCB 35
48 A fight with the plaintiff’s parents apparently precipitated a further presentation for treatment on 21 March 2011. The Casey Hospital Emergency Department Discharge Summary bearing the same date[44] indicates that, whilst an inpatient, the plaintiff was treated for anxiety and he was prescribed medication, Cymbalta (an antidepressant) and Epilim (medication to assist with impulsive anger problems). His dosage of Epilim appears to have been reduced following the 21 March 2011 presentation.
[44]PCB 29
49 The plaintiff told the Court that following discharge from the Monash Medical Centre, he resumed his quest for employment. He agreed that he did this by cold calling, applying for advertised positions via an employment agency and by applying online or calling direct. The plaintiff also indicated that this was the first time he had given serious consideration to working in retail.[45]
[45]TN 60
50 The plaintiff deposed that meeting the young woman, who is now his fiancée, in 2011 had helped improve his mood and his motivation to apply for a number of jobs.[46]
[46]PCB 17c
51 Until he resigned from this job, for some 2½ weeks from about September 2011 the plaintiff was employed full-time as a cleaner by a company, Secure Corp, at the Dandenong Plaza shopping centre. According to the plaintiff, this cleaning job was somewhat more strenuous (using large dry mops, maintaining more equipment and cleaning a larger area) than the earlier cleaning job with Bond Caretaking. The plaintiff deposed that he had not been able to keep up with the workload because of pain and lack of grip strength in his hand and he had found the work too heavy.[47]
[47]PCB 17d
52 The plaintiff identified two particular areas of concern in performing his cleaning duties at the Dandenong Plaza. The first involved the use of the large dry mop to gather dust, which the plaintiff deposed required the use of both hands. This, he said, had made his left hand "sore tired and mostly a bit swollen". In cross-examination, the plaintiff agreed that the size of the mop had made it "more unwieldy".[48]
[48]Ibid
53 The second concern involved the use of a machine, a floor buffer. During cross-examination, the plaintiff said this machine could become "quite dangerous" unless tightly gripped with both hands. [49]
[49]TN 62
54 Despite, these earlier setbacks in cleaning work, during cross-examination, the plaintiff agreed that he had continued to apply for cleaning jobs because, having previously helped his grandfather with his work as a janitor in 2003 and 2004, he believed that cleaning work was less strenuous. I took this to mean that, relying on past experience, the plaintiff still believed that he could perform some of the duties involved in cleaning work. This is not the same as saying that the plaintiff has a residual earning capacity to maintain regular employment as a cleaner.
55 According to the plaintiff, the acceptance of his sister into the Navy in late 2011 exacerbated his anger and depression by bringing home to him the fact that he would not be able to fulfil his ambition to have a career in the ADF.
56 The plaintiff was next employed in warehouse duties by Arisit Pty Ltd from 17 July 2012. He was paid at the rate of $16.83 per hour for a 40 hour week ($673.20 gross per week or $35,006.40 gross per annum). The plaintiff told the Court that he had applied directly to the company for this job in response to an advertised vacancy. The plaintiff said he performed full-time duties, which involved cleaning and packaging white goods, what the plaintiff described as "a little bit of paperwork" and, on occasions, he was required to help unload shipping containers.[50]
[50]PCB 17d
57 In September 2012, some six weeks into his employment with Arisit, the plaintiff was assessed at the request of his solicitors by vocational psychologist, Ms Green.[51] Judging from the matters recorded by the psychologist, whilst the plaintiff reported some difficulty performing his duties due to his injury ("Mr Capper stated that normally he does not use gloves as they leave marks on the white goods; also when he does where (sic) them chemicals get inside gloves and irritate his left hand. Due to the repetitive use of his hands he finds that his left hand gets "sore" as the shift progresses"[52]) he had also indicated to her that he was enjoying his work and believed he was "doing fine".
[51]PCB 106-122
[52]PCB 108-109
58 The plaintiff also reported that he was performing hand strengthening exercises on a regular basis and taking over-the-counter pain relief medication, including Panadol and Aspirin, but not seeing any medical practitioners or specialists for his hand injury.
59 A further vocational assessment was undertaken by recruitment consultant, Ms Angel from Flexi Personnel. Her report dated 17 October 2012, was submitted to the plaintiff's solicitors. In this report, Ms Angel noted that the plaintiff had provided a letter from his boss at Arisit, in which the employer confirmed that the plaintiff was struggling with his work, struggling to keep pace with the work and that, at times, he needed assistance with lifting and other duties. The letter further indicated that, when he was employed, the company had not been aware of the extent to which the plaintiff's left-hand injury would impact his work capacity, although at the time of writing the letter the plaintiff had been kept on because he was: "such a keen worker".[53]
[53]PCB 78
60 Notably, during the course of this vocational assessment the plaintiff reported the following matters relating to his employment:[54]
Ø dislocation of the left ring finger when pressure was applied whilst lifting, such that the plaintiff taped his left hand/fingers to provide support and/or wore gloves when involved in activities as for example, exercising or lifting;
Ø taking extra medication every day to treat swelling and pain in his left hand so that he could keep working. The plaintiff told this consultant that he relied on daily doses of Mydol, Aspirin and Ibuprofen in the treatment of pain and swelling.
[54]PCB 79
61 In his further affidavit, sworn on 30 October 2012 the plaintiff deposed that the job with Arisit was often too heavy for him and he was struggling with the work. The plaintiff further deposed that: "By the end of the day my left hand is sore, tyre and mostly a bit swollen. It is difficult for me to keep up with the pace. I use my left hand less and less during the day. I need help with some of the lifting which slows things down. I feel that I'm unlikely to keep the job much longer. I have been advised that if I cannot significantly increased the work rate that I'm likely to be dismissed. I have also been advised that they want me to reduce my level of medication but I don't think this is possible. I am currently looking for lighter type of cleaning jobs…"[55]
[55]PCB 17d
62 When he swore this affidavit, within weeks of the vocational assessment by Flexi Personnel and while still employed by Arisit, the plaintiff deposed that he took over-the-counter medication: "Buscopan Forte, which contains Codeine, about 2 – 4 tablets per week, 2 aspirin per day and generally 4 to 6 Ibuprofen plus Codeine per day when working" and exercised his hand: "to try and improve its function but not much has changed."[56]
[56]PCB 17e
63 As it turned out, prior to the expiration of the six-month probationary period, on 13 November 2012 the plaintiff, lost this employment. The plaintiff said that the explanation given to him was that he had been too slow, a predicament the plaintiff attributed to the impaired functioning of his left hand and his inability to keep up with the work.[57]
[57]TN 63
64 In summary, the plaintiff explained that he had required two hands to move and manipulate items such as fridges, freezers and washing machines, work he said he had found too heavy.
65 In spite of the problems with his hand, the plaintiff agreed that he had intended to remain working with Arisit. To my mind, this response was consistent with an ongoing desire to maintain regular employment, even if that meant persisting with manual duties which had caused pain and swelling and had necessitated taking extra medication to manage his symptoms.
66 In his final affidavit sworn on 23 July 2013, among other things, the plaintiff deposed that his depression and psychological symptoms had been exacerbated by the loss of this work and, in November 2012, his general practitioner commenced prescribing the antidepressant, Efexor.
67 It is convenient at this juncture to deal with one issue arising during cross examination: the plaintiff’s use of a protective glove as recommended by a doctor.
68 The plaintiff was cross-examined about a recommendation from a doctor to use a fingerless glove stiffened with a piece of plastic to aid grip strength and padded to protect the site of the amputation. Apparently he purchased this glove which, the plaintiff said, quickly deteriorated and had become a safety hazard because the glove caught on corners and sharp pieces of metal.[58] This was probably the glove to which the plaintiff had referred during the vocational assessments in September and October 2012.
[58]TN 40-41
69 I was satisfied that, whilst the use of a glove probably had reduced pain because the plaintiff was less likely to knock the stump and improved the endurance of his hand (“some, but not much”), the wearing of this protective device had likely also affected his already compromised ability to perform manual duties by, as the plaintiff claimed, decreasing his grip strength and his capacity to cup his hand.
70 As to further employment, the plaintiff said that for a couple of weeks after leaving Arisit he worked in door-to-door sales selling power saver boards under the Victorian Government's Veet scheme. Unfortunately, having already worked 10 hours a day, six days a week for a three-week period, it was ascertained that the employer was operating a scam. Consequently, the plaintiff was never paid the agreed commission of $15 per board. According to the plaintiff, on average he sold five power saver boards per day.
71 Both in this affidavit and at hearing, the plaintiff explained that, despite his problems with depression, he had continued to seek employment in "retail, cleaning, anything I can get my hands on"[59] and, other than in the months preceding the hearing, he had participated in countless interviews, he thought, on average one interview every 3 to 4 weeks.[60]
[59]TN 64
[60]TN 65
72 In the six months preceding the hearing, the plaintiff said that he had not been offered any interviews. Moreover, unless this was noticed and raised during the course of an interview, he did not mention his hand impairment. This, the plaintiff explained, was because in his experience, once an employer found out about his missing finger, he did not make it past the interview.[61]
[61]TN 65
73 The defendants submitted that the plaintiff had not, as he should have, pursued further occupational rehabilitation and retraining.[62] Moreover, cross-examination about these matters and about the plaintiff's failure, for example, to return to an organisation such as Hand Brake Turn, for assistance in obtaining work in the automotive industry, was directed to countering any suggestion that attempts to participate in rehabilitation or retraining had been reasonable.
[62]TN 205-207
74 According to the defendants, notwithstanding, the plaintiff's evident motivation in pursuing job applications, it was reasonable to expect the plaintiff to pursue further enquiries with an organisation such as Hand Brake Turn or with the ADF. [63]
[63]TN 173-174
75 In view of the difficulties the plaintiff reported in returning to motor mechanic duties and his likely ongoing problems in using tools with his left hand, I was not satisfied that any failure to approach Hand Brake Turn or, indeed, any other organisation operating in the automotive industry, objectively speaking, was unreasonable.
76 I note Mr Behan’s advice, dated 8 February 2011, to the plaintiff’s solicitors recommending that they address any query to the ADF concerning how the amputation restricted the plaintiff’s employment across the ADF.[64]
[64]PCB 56
77 However, the plaintiff gave evidence that he had discussed the availability of different classifications within the ADF. My understanding of the evidence in this regard was that, until he was able to complete the fitness test, the plaintiff remained ineligible for the ADF, including the army reserve and, even if he did pass the fitness test, he was still required to complete basic training.[65]
[65]TN 111-112
78 As my earlier remarks show, I have accepted that, in the circumstances described by the plaintiff, having failed the fitness test, his failure to pursue further enquiries with the ADF, in effect because he believed his hand would not improve to the level necessary to meet ADF requirements, was probably justified.
79 The plaintiff indicated that in the past he had applied for further training through job agencies. In some cases this had been turned down and in others funding was not available.[66]
[66]Ibid
80 The plaintiff was unable to recall all of the courses for which he had applied (costing he thought anywhere from $500-$2000), but said the courses mostly related to retail. However, the plaintiff did recall that in 2011, he had commenced, a two week Certificate III in property maintenance course. The plaintiff had not completed this course because he had been offered employment with Secure Corp, to commence on the last day of the course. Evidently, Centrelink has since refused further funding for the plaintiff to redo this course.
81 The plaintiff also deposed that in 2009 he attempted to obtain a licence to drive a forklift. He apparently sat an exam and passed the written test. However, the practical examination was postponed after the plaintiff knocked his left hand on the forklift and was only able operate the forklift with one hand.[67] In cross-examination, the plaintiff said that he was prevented from completing the test three days later because Centrelink had refused funding for this.[68]
[67]PCB 14
[68]TN 67
82 Currently, the earning level of his partner precludes the plaintiff from accessing Centrelink benefits.
83 The matters described above helped satisfy me that if section 134AB(38)(g) applied to this plaintiff, he probably had met the requirements of this provision.
The Medical Opinions/Conclusions
84 The medical opinions obtained cover both the psychological and physical aspects of the injury. As the leave application was limited to proof of the nature and the extent of the consequences arising from the organic injury, I do not propose to dwell on the psychological component of the injury.
85 I was, nevertheless informed that, in the event that section 134AB(38)(g) applied to this application, the plaintiff relied on the evidence of the mental health experts concerning the impact of his mental health problems from time to time on his ability to participate in rehabilitation and retraining and the reasonableness of his attempts in this regard.[69]
[69]TN 217-218
86 The most recent assessment by psychiatrist, Dr Strauss on 26 June 2013 indicated that, as a result of the injury, the plaintiff suffers from a chronic adjustment disorder with mixed anxiety and depressed mood and with features of traumatisation.[70] In his opinion, the plaintiff's prognosis was not good and he advised the plaintiff’s solicitors that there was a chance that the plaintiff may not work in the future. However, whilst Dr Strauss believed the plaintiff may be left with a permanent psychiatric incapacity for employment, his report taken as a whole demonstrates that the plaintiff’s mental state was probably secondary to the permanent physical incapacity for employment.[71]
[70]PCB 105g
[71]Ibid
87 Occupational physician, Dr Brown, examined the plaintiff once at the request of the defendants’ solicitors on 2 March 2010.[72] Subsequently, on 26 July 2010 and again on 17 September 2012, Dr Brown provided the defendants with an opinion on the plaintiff’s capacity to perform various jobs listed in vocational assessment reports dated 1 April 2010 and 26 July 2012.[73]
[72]DCB 41-43
[73]DCB 52 and 58-59
88 In summary, following his initial examination Dr Brown concluded that the plaintiff:
Ø had little difficulty with activities of daily living ("he is able to get dressed. He is right hand dominant so has no difficulty writing. He can operate a keyboard reasonably well but describes some difficulty using special controls for computer games. He has never obtained his driver's licence. He said he had some difficulty with weights in the gym and said he has "dislocated" his ring finger on a few occasions.…");
Ø had been left with "some residual discomfort if he bumps his hand" at the amputation point;
Ø had been able to work for six months as a cleaner with minimal difficulties apart from the discomfort he experienced when he bumped his hand;
Ø had a capacity for suitable duties and for most types of employment except where 10 fingers were required and, allowing for voice-activated software, there was little impairment of work capacity for most jobs.
89 I was left with some reservations about the bases upon which these opinions were formed. It follows from this that I gave less weight to the opinions expressed in Dr Brown’s later correspondence concerning the plaintiff's capacity to undertake the jobs to which Dr Brown had been referred.
90 To start with, Dr Brown appears to have minimised the difficulties confronted by the plaintiff both in his daily activities and workplace.
91 Contrary to the matters reported by Dr Brown, the plaintiff's evidence and the specialist evidence, some of which I have already summarised, indicate that in the years since the injury, the restrictions and symptoms relating to the plaintiff’s physical impairment have remained largely unchanged. For instance, whilst the plaintiff agreed that the recovery time from severe pain after bumping his hand had reduced from 30 minutes to about five minutes,[74] the plaintiff’s evidence and reports made to doctors also indicated:
[74]TN 25, PCB 17e and see Dr Rillstone's report, PCB 28A
Ø that, other than when his pain killing medication was working, he was never free from a dull aching pain in the area of the amputation;[75]
[75]TN 24-25
Ø that he suffers from phantom pains,[76] sensitivity to touch and being knocked in the area of the amputation and to extremes of temperature;[77]
[76]PCB 17e
[77]TN 24- 27 and PCB 14, 17b, e and h
Ø erythema and sweatiness if he knocks the amputation area;[78]
[78]Dr Horsley on 6 May 2013, PCB 62e
Ø a loss of what the plaintiff described as "endurance" in his hand as compared to his right hand[79] ("He suffers from easy fatiguability")[80];
[79]TN 26
[80]Dr Horsley, ibid
Ø an inability to properly hold controls to play videogames;[81]
[81]PCB 15
Ø an inability to continue boxing due to sensitivity in his hand, to lift weights and to play soccer,[82] reduced grip strength and manipulation skills; [83]
Ø an inability to drive a manual vehicle for any prolonged period because gear changes would aggravate his symptoms;
Ø difficulties in his domestic environment such that he cannot mow lawns due to the effects of vibration and he has problems when he cooks or washes dishes because, sometimes his compromised grip causes the plaintiff to drop items [84] ("He loses grip and has dropped multiple plates"[85]).
[82]PCB 15 and see Mr Crock's report, PCB 22
[83]PCB 17b and see his mother's statement in support, PCB 21
[84]PCB 17e
[85]Dr Horsley, ibid
92 More significantly, where, as in this application, the defendants have already conceded serious injury in respect to pain and suffering (namely a permanent pain and suffering consequence, fairly described as being more than significant or marked and at least very considerable) the evidence indicates that factors relevant to a finding of serious injury in respect to pain and suffering (such as pain, reduced grip strength and dexterity) probably still contribute to the plaintiff’s ongoing difficulties in maintaining work as a cleaner.
93 In these circumstances, I consider it likely that whilst employed by Bond Caretaking, the difficulties experienced by the plaintiff with the cleaning duties he performed were somewhat greater than Dr Brown’s report suggests. In reaching this conclusion, I also took into account to Dr Brown's advice (without explanation of how this had been measured or assessed) that the plaintiff's grip strength "was normal, and there were no other hand abnormalities".[86] Put succinctly, this finding was against the weight of other more recent medical evidence of abnormality and loss of grip strength.
[86]PCB 42
94 As I have already noted, on 5 March 2010 Mr Anstee examined the plaintiff.[87] In August 2010, he also responded to correspondence and information forwarded by the defendants’ solicitors relating to the plaintiff’s physical capacity to undertake particular jobs.[88]
[87]DCB 44-51
[88]DCB 53-57
95 Notably, following the assessment, Mr Anstee's formed the view that, notwithstanding "a less efficient handgrip with a narrower hand", the plaintiff would be able to do most of the activities performed prior to the injury, including being able to lift ("almost unhindered with the left hand") and manage his pre-injury duties satisfactorily. In arriving at this conclusion, Mr Anstee did make allowance for likely reduced efficiency in using a keyboard and a reduction in the plaintiff's capacity to use his left hand as a lever, as might be the case if he were required to employ tools such a spanner in a domestic or industrial setting.[89]
[89]DCB 48
96 However, the passage of time and the plaintiff's reports of his experience in the workplace has shown that, for example, his capacity to lift weights, even with assistance from other employees, has likely been seriously compromised both by the loss of function in his left hand and other symptoms involving pain and swelling.
97 I have discussed Mr Behan’s report and correspondence in passing. Following examination of the plaintiff in November 2010, further to the matters already summarised, Mr Behan advised that:
Ø the plaintiff experienced restrictions relating to loss of ulnar power grip and additional inconvenience from the neuroma formation at the distal limit of the scar/amputation site ("… one can appreciate that ulnar power grip.." on the side of the remaining digits of the left-hand "would be reduced by at least 50%. The presence of the neuroma in the soft tissues over the metacarpal head would make the patient flinch and therefore ulnar power grip on this side would approach zero, with him using the median half of the hand for any grip support"[90]);
Ø whilst the amputation loss was permanent, reconstructive surgery remained a possible means of managing symptoms caused by the neuroma.[91]
[90]PCB 53
[91]PCB 46
98 When questioned about this during cross-examination, the plaintiff was unable to recall discussion with any of his doctors of a further referral to a hand surgeon, presumably with a view to consideration of further surgical intervention.[92]
[92]TN 39
99 The most recent medical material only discusses further hand therapy. For instance, Dr Horsley, who examined the plaintiff twice at the request of his solicitors, on 11 January 2011 and again on 6 May 2013, thought therapy might help the plaintiff with issues around him maintaining the pace of work in any manual job ("Mr Capper would benefit from the involvement of a physiotherapist and some advice about appropriate exercise. A further hand strengthening programme may be of value"[93]) and, in June 2013, general practitioner, Dr Rillstone recommended that the plaintiff consider further physical treatment with a hand therapist.[94] Under cross-examination, the plaintiff said that they had not discussed hand therapy recently and he was unable to recall when Dr Rillstone had last discussed this with him.[95]
[93]PCB 61 and 62g
[94]PCB 28c
[95]TN 39
100 The evidence of Dr Horsley and Dr Rillstone is summarised in the following paragraphs. Having considered this, I did not form the view that either of these practitioners considered that hand therapy was likely to resolve the need to restrict workplace activities involving the plaintiff’s left hand in heavy, forceful or repetitive work for the foreseeable future.
101 Relevantly, Dr Horsley obtained detailed histories. Following her most recent clinical examination in May 2013, in addition to recording the plaintiff's reported symptoms, the occupational physician noted, among other things:[96]
Ø touch sensitivity on light palpitation, without evidence of chronic regional pain syndrome;
Ø a significant discrepancy in grip strength between hands. For instance, when using a Jamar Dynamometer the plaintiff produced 55 kg force on the right side but only 10 kg/5 kg on the left side. Apparently when the plaintiff increased his grip strength to 35 kg force Dr Horsley noted “obvious discomfort" which persisted for some period after the plaintiff released the Jamar.
[96]PCB 62a-62h
102 In Dr Horsley's opinion, in view of the length of time since suffering the injury and the ongoing nature of these, the plaintiff's symptoms were likely to persist.
103 As to any restrictions applying in the workplace, Dr Horsley recommended:[97]
[97]PCB 62g and 62j
Ø avoidance of repetitive and repetitive forceful activities involving the plaintiff’s left non-dominant hand;
Ø avoidance of using machinery with a vibratory component, involving the left non-dominant hand;
Ø protection of the amputated area when undertaking manual tasks. As we now know from the plaintiff’s earlier experience in the use of a protective glove, the life of a glove used in manual work is probably very short and the protection provided probably comes at the expense of speed and productivity;
Ø caution when using equipment such as spanners which require prolonged grip;
Ø consideration of hand fatigue issues.
104 In addition to the matters already noted, Dr Horsley considered that the plaintiff would benefit from:[98]
Ø education relating to the functional capacity of his left hand, to manual handling techniques and to general coping strategies;
Ø retraining and upgrading of skills to help improve his return to work options.
[98]PCB 62g
105 In summary, Dr Horsley considered the plaintiff's prognosis to be guarded. She found ongoing and significant disability against a background of pre-existing disadvantage (which I took to refer to the injury suffered in the transport accident as a 14-year-old, long-term literacy issues, conflict with his family and the plaintiff’s psychological issues). In Dr Horsley’s opinion, the plaintiff will require considerable assistance if he is to remain in the workforce on a prolonged and reliable basis.[99]
[99]PCB 62h
106 Allowing for all of the matters canvassed in her reports (including her most recent correspondence dated 13 June 2013[100] where Dr Horsley opined that the plaintiff was not physically fit to work full-time as either a rifleman in the ADF or as a motor mechanic), I have accepted as correct the submission made on behalf of the plaintiff, that Dr Horsley’s evidence was consistent with a finding of permanent physical loss of earning capacity as a consequence of the injury.
[100]PCB 62i-k
107 The last of the medical reports comprise three reports submitted by general practitioner, Dr Rillstone, whom the plaintiff has consulted for the injury since 11 February 2012. The doctor diagnosed both persistent post injury neuropathic pain syndrome with a separate but associated Post-Traumatic Stress Disorder.
108 In June 2013, Dr Rillstone said that he had prescribed Pregabalin (another name for Lyrica which may have been the medication the plaintiff said he had previously ceased using due to its side-effects[101]) to help manage ongoing neuropathic pain (that is pain caused by damage to the nerves). However, it was clear from the evidence given by the plaintiff during the course of the hearing that he was not currently taking this medication. In any event, Dr Rillstone recommended that the plaintiff continue to explore the use of appropriate antidepressant medication and, as I have already mentioned, that the plaintiff consider further physical treatment with a hand therapist.[102]
[101]TN 37-39
[102]PCB 28c
109 As to the plaintiff’s physical capacity for employment, I note that whilst he did not comment on the extent of the any restrictions in the workplace or on the hours worked, on 30 June 2013 Dr Rillstone reported as follows:[103]
“He lost his job working for white goods manufacturer due to not being able to keep up with the workload, due to more pain in his L) hand. This increase pain persisted even over the weekend he had off. He has found his grip strength better after lost his job as it is under less strain. He was working door to door sales and installation of electronic devices – which involved lifting a lot of TV's. This did not last due to the business failing. Given his description of the work, it is unlikely that this would have been suitable.
He has a current and future capacity for work which only requires limited strength of the left upper limb and limited dexterity of the L) hand. This is likely to be a long-term limitation."
[103]PCB 28c
110 Before I summarise the evidence relating to loss of earning capacity, it is convenient to discuss an issue bearing on both the plaintiff’s credit and the extent to which medication was used to control pain and the plaintiff’s symptoms in the years since the injury.
111 Some of the medical evidence was used during cross-examination to challenge the plaintiff's assertions both in his final affidavit and during cross-examination about the level and frequency of the painkilling medication required since the injury. The plaintiff claimed to have forgotten to mention medication in his first affidavit sworn on 18 December 2009.
112 Psychiatric evidence was obtained from psychiatrist, Dr Weissman in 2006 in respect to the injury suffered in the transport accident when the plaintiff was 14 years old (“He does not take any medication”[104]). I have not given weight to this report because it was made some three weeks after the amputation of the necrotic finger and was specifically directed to injury sustained in the transport accident.
[104]DCB 12-4
113 In 2007, psychiatrist, Associate Professor Paoletti reported that the plaintiff was “not on any medication, either psychotropic or painkillers”[105] and Mr O’Brien noted that the plaintiff was not receiving any active treatment.[106] Nevertheless, as already discussed, when seen by Mr O’Brien, the plaintiff had reported symptoms consistent with the development of a painful neuroma at the site of the amputation, which led to discussion of surgery.
[105]DCB 18
[106]PCB 31
114 The plaintiff’s evidence was that in the months before the ADF fitness test he had abstained from using medication as part of his preparation to undergo this test. This evidence may very well explain the history obtained by Mr Stapleton in 2008 to the effect that the plaintiff took two analgesic tablets perhaps twice weekly for left hand discomfort.[107] It may also account for psychiatrist Dr Rose’ report in 2008, under the heading “CURRENT MEDICATION AND TREATMENT”, where he noted that the plaintiff took anti-inflammatory medication for shin splints, but was having no other treatment.[108]
[107]DCB 39
[108]DCB 29
115 In 2010, Mr Anstee recorded that the plaintiff was not “at present, taking any medication”[109] and Mr Brown recorded that the plaintiff had no active treatment for his injury.[110]
[109]DCB 46
[110]DCB 42
116 Mr Behan made no mention of medication. However, Mr Behan clearly accepted the plaintiff’s report of ongoing pain and that he experienced an electric shock up his arm through contact with the neuroma formation at the amputation site.[111]
[111]PCB 42
117 In 2011, Dr Horsley recorded anti-depressant, Cymbalta and mood stabilising medication, Epilim as the plaintiff’s current medication.[112] This medication was probably prescribed to treat the plaintiff’s ongoing mental health problems. Epilim is nonetheless a drug that can also treat pain. In any event, on re-examination in May 2013, Dr Horsley noted that the plaintiff used over-the-counter Aspirin and Ibuprofen intermittently.[113]
[112]PCB 58
[113]PCB 62b
118 I have already summarised the reports made by the plaintiff during vocational assessments in September and October 2012 and his sworn affidavit evidence on 30 October 2012 concerning the level and frequency of his use of medication in that period.
119 On 23 July 2013, the plaintiff deposed that he took 2 Aspro Clear tablets daily for pain and that occasionally, he took Ibuprofen plus Codeine in the treatment of particularly severe pain.[114] During cross-examination the plaintiff explained that he usually took the Aspro Clear medication in the morning and occasionally at night and that this medication helped with swelling in his hand.
[114]PCB 17h
120 He further explained that he took Ibuprofen and Codeine medication at the rate of two tablets at a time, at four hourly intervals. However, the amount of this medication available to him over-the-counter was restricted and his pharmacist required him to sign for it.[115]
[115]TN 33
121 In response to the proposition that there had been a period of about four years after his workplace injury when he had not required any painkilling medication, the plaintiff told the Court that he had always needed pain medication and in keeping with advice from his doctor he used over-the-counter medication.[116] As I have already mentioned, the plaintiff also recalled an occasion, at least four years earlier, when his doctor had prescribed medication that helped block pain. However, this medication had produced undesirable side-effects.[117] Again, his medication was probably Lyrica, which I was told had been prescribed by Dr Dunn in the treatment of symptoms of phantom pain and neuropathic pain.
[116]TN 34-35
[117]TN 37
122 My understanding of the plaintiff's evidence at hearing was that, while the type of painkilling medication used by him had remained the same, the amount fluctuated depending on whether he was working or unemployed and, even when unemployed, there had not been any periods where he had not required medication. He agreed with the proposition to the effect that, if asked, he would have always told examining doctors that he was taking medication for pain.[118]
[118]TN 35-36 and 114
123 The plaintiff could not recall seeing many of the doctors named. While he expressed uncertainty about this, the plaintiff nonetheless rationalised that, if a doctor had recorded that he was not taking medication, this was probably due to a misunderstanding because he did not take prescription medication in respect to his hand injury.
124 The reports made to the vocational assessors in 2012, the plaintiff’s later affidavit evidence and the most recent of Dr Horsley’s reports are consistent with ongoing use of over-the-counter medication to manage symptoms in the plaintiff’s left hand, particularly in association with regular use of his left hand in a work place environment.
125 On balance, I was not satisfied that the plaintiff's credit had been damaged by his responses to this line of questioning. As I have already commented, the plaintiff impressed me as someone who had kept trying to deal with his disability and had not been given to exaggerating this or his symptoms. In my view, allowing for all of the evidence, as claimed, the plaintiff has probably always needed pain killing medication, which he mostly obtained over-the-counter, although the amount and frequency of his use of painkilling medication probably has fluctuated depending on the level of his activity.
126 As was conceded by the defendants, the plaintiff has met the test for serious injury in respect to pain and suffering and he is entitled to proceed at common law for these damages.
Loss of Earning Capacity Consequences
127 The Court of Appeal in Barwon Spinners & Ors v Podolak[119] discussed in some detail section 134AB(38) of the Act, describing this provision as "altogether novel".[120]
[119][2005] VSCA 33
[120]Ibid [20]-[31]
128 Section 134AB(38) requires all workers, including the plaintiff, who seek leave to pursue damages for loss of earning capacity to establish a loss of earning capacity consequence that meets the same narrative test applied to a pain and suffering consequence as earlier described.[121] It is an objective test, concerned with a worker's physical loss of earning capacity.[122] In addition to this, paragraphs (e)(i) and (ii) impose a threshold requirement that workers establish a loss of earning capacity of 40 per centum or more after the date of hearing and for the foreseeable future.[123]
[121]HumphriesvPoljak, op cit and section 134AB(b) and (c)
[122]Barwon Spinners, op. cit [28]
[123]Ibid
129 To determine a worker's loss of earning capacity "as most fairly reflects the worker's earning capacity had injury not occurred", paragraph (f) requires comparison of a worker's after-injury earnings (the gross income from personal exertion expressed at an annual rate which the worker is earning whether in suitable employment or not or capable of earning in suitable employment at the date of the hearing) and their without-injury earnings (the gross income again expressed at an annual rate that the worker was earning or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury).
130 Notably, paragraph (f) introduces the notion of “suitable employment”. Section 5 of the Act defines this as employment in work for which the worker is currently suited. This provision sets of out a number of matters to which the Court is required to have regard when determining what employment is suitable. The provision nonetheless directs the Court to ignore whether the work or the employment is available or is of a type or nature that is generally available in the employment market.
131 It was common ground that, section 134AB(e)(i) expressly excepted a worker referred to in section 5A(7) of the Act or a worker under the age of 26 at the date of the injury (as the plaintiff was) from the requirement that a worker’s loss of earning capacity of 40 per centum or more be measured by applying the formula set out in section 134AB(38)(f).
132 Accordingly, paragraph (e) applies the formula contained in paragraph (f) to workers other than those workers to whom the exception applies.
133 The rationale for the exception made and the means by which loss of earning capacity is to be determined, were explained in the Second Reading Speech in the following paragraph: [124]
“The three-year pre and post-injury period does not apply in a case of a worker referred to in section 5A(7) of the Act or a worker under the age of 26 years at the date of injury. The government recognises that apprentices and workers undergoing training for the purpose of becoming qualified and in general terms workers under the age of 26 should not be subject to a six-year period of inquiry of earnings or earning capacity. In the case of such workers, a court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common-law position prevails."
[124]Victoria, Hansard, Legislative Assembly, 23 May 2000, 1169 (Hon M. M. Gould, Minister assisting the the Minister for Workcover.
134 In short, when enacting section 134AB(38)(e) Parliament contemplated that, the Court would have regard to the usual common law position when determining whether a worker, who was under 26 at the date of injury, had established a loss of earning capacity in accordance with this provision.
135 In the Second Reading Speech, the Minister referenced section 134AB(38)(g) when she added the following explanatory remarks:[125]
[125]Ibid
"The government recognises there is a tension between a worker’s motivation to undertake rehabilitation and retraining and the opportunity to satisfy the economic loss threshold in the serious injury test by a worker not returning to employment or not undertaking rehabilitation and retraining. Accordingly the bill provides the following very important qualification on the loss of earning capacity threshold.
The bill provides that a worker will not establish the loss of earning capacity threshold where the worker has or would have after rehabilitation or retraining and taking into account the worker’s capacity for suitable employment after the injury, and where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation and retraining, a capacity for any employment including alternative or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of his or her pre-injury income. Suitable employment is defined in section 5 of the Act and in relation to a worker means employment in work for which the worker is currently suited whether or not that work is available having regard to certain criteria…”
136 As enacted, section 134AB(38)(g) imposes an additional threshold requirement that a worker establish that they have not or would not have “after rehabilitation or retraining, and taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining, a capacity for employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.”
137 Accordingly, section 134AB(38)(g) brings into consideration a worker’s capacity for suitable employment (as defined by the Act) after the injury.
138 Section 19 of the Act instructs that, for the purpose of a leave application, firstly, the Court must not give leave unless satisfied on the balance of probabilities that the injury is a serious injury and, secondly, for the purpose of proving a loss of earning capacity in accordance with section 134AB(38), the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability is borne by the worker. If section 134AB(38)(g) applies to the plaintiff, section 19 places the onus on him to meet the requirements of this provision.
139 Shortly prior to the commencement of closing submissions, the defendants and the Court were notified of the plaintiff’s further submission that paragraph (g) had no application to a worker under the age of 26.[126] The plaintiff’s counsel, nonetheless argued that if paragraph (g) applied, on the evidence, the plaintiff had met the additional requirements of this provision.
[126]TN 131-132 and 146-147
140 If correct in this submission, the assessment of the plaintiff’s loss of earning capacity is probably not constrained by any consideration of suitable employment as interpreted by the Court of Appeal in Barwon Spinners[127] (and later discussed in State of Victoria v Rattray,[128]) and the Court may have regard to the availability of employment where, as in this case, the plaintiff has made many unsuccessful attempts to obtain employment.[129] The Court should, so the submission went, look at the realities of the plaintiff's current position as it reflected on in his earning capacity.
[127]Op cit, [24]-[27]
[128][2006] VSCA 145 (7 July 2006)
[129]TN 58-70
141 The plaintiff further submitted (and this was conceded by the defendants) that in the assessment of probable income from personal exertion, the Court was not required to make a finding on any specific sum.[130] The Court could nevertheless use current rates of pay for a motor mechanic and a rifleman as a factor or reference point in determining whether the plaintiff had met the requirements of the provision. In this regard, the plaintiff relied on the average or mid point rates of $61,806.85 gross per annum and $60,877 gross per annum respectively.[131] For the purpose of this proceeding the defendants conceded a figure of $60,000 per annum as a reference point.
[130]TN 154-156 and 159 and 230-231
[131]PCB 93a-b
142 The defendants nonetheless contended that paragraph (g) continued to apply to this plaintiff, one consequence of which was that the Court was required to disregard whether the work or the employment for which the plaintiff is currently suited is available and is of a type or nature that is generally available in the employment market.[132]
[132]TN 132-137, 147-153 and 161-164
143 In the alternative, the defendants submitted that by removing the statutory formula for measuring a loss of earning capacity productive of financial loss of 40 per centum or more for a worker under 26 years of age at the date of the injury, Parliament had not also intended to introduce wider common-law considerations such as the availability of employment for this plaintiff.[133]
[133]TN 193-196
144 I am unable to accept the defendants’ submission that, properly construed, paragraph (g) was intended to and does apply to this plaintiff. To do so would require the Court to ignore the clear intention of Parliament that the usual common law position prevails in respect to this category of worker by reintroducing, via this provision, among other things, the statutory formula for the assessment of the loss of earning capacity of a worker under the age of 26 at the time of injury.
145 Furthermore, I was not persuaded that, having enlivened the common law test as it relates to the assessment of loss of earning capacity, Parliament had also evinced an intention to restrict the factors relevant to the determination of the loss of earning capacity of a worker under the age of 26 at the time of the injury.
146 What is needed is an understanding of the evidence that permits a finding one way or the other about whether the plaintiff has at the date of hearing a permanent loss of earning capacity of 40 per centum or more.
147 As to the usual common law position and its application to permanent loss of earning capacity productive of a financial loss of 40 per centum or more, I was invited by the plaintiff to adopt and apply the various principles articulated by His Honour Heydon, JA in Stateof New South Wales v Moss,[134] a case involving the assessment of the loss of earning capacity of a plaintiff injured in a school accident at 14 years of age.
[134]54 NSWLR 536 [64], [66], [69], [71]-[72], [74] and [87]
148 In October 2012 His Honour Judge Brooks conveniently summarised these principles in a leave application, Jarvis v Woolworths Limited.[135] They were expressed as follows:[136]
[135][2012] VCC 1329
[136]Ibid, [23]
Ø evidence of past economic loss is some, though not conclusive evidence of reduced earning capacity;
Ø it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what a plaintiff is likely to earn after it.
Ø where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work the plaintiff can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment, on a percentage basis or otherwise, of the value of the lost capacity;
Ø the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It involves calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities;
Ø the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;
Ø the task of the court is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.
149 For the purpose of deciding this application, evidence was adduced relevant to the determination of any permanent loss of a physical earning capacity at the date of hearing in accordance with section 134AB(38)(e).
150 The plaintiff's evidence was to the effect that his physical symptoms and the compromised function of his left hand since the injury had made it difficult for him to exercise any residual earning capacity in regular employment which required manual dexterity, repetitive use of his left hand, exposed the amputation site to knocks and bumps or required lifting or carrying weights.[137]
[137]PCB 17h
151 Whilst there was some variance in the medical evidence, a number of specialists from both sides have indicated as follows:
Ø in 2007, Mr O'Brien considered the plaintiff unfit to return to manual duties requiring the use of his left hand;
Ø in 2010, Mr Behan concluded that the plaintiff's overall condition had not stabilised due to the possibility of further surgery to the neuroma. However, Mr Behan also indicated that the plaintiff would have difficulty with heavy manual activity and there were restrictions relating to his loss of ulnar power grip;[138]
Ø in 2012, Dr Rillstone considered that the plaintiff's current and future capacity for work was restricted to work that required limited strength of the left upper limb;[139]
Ø in 2013, Dr Horsley identified a range of restrictions applying to the plaintiff's activities in a workplace, various background barriers to the plaintiff returning to work and his limited skills and work experience. She also noted that the plaintiff's educational background limited him to work in the manual arena. Moreover, Dr Horsley accepted that the plaintiff's disability had rendered him unfit to join the ADF and work full-time as a rifleman and, allowing for his presentation and the restrictions applying in the workplace, Dr Horsley considered the plaintiff unable to work full-time as a motor mechanic.
[138]PCB 46-47
[139]PCB 28 and 28c
152 I have already mentioned two of vocational assessments obtained in the latter part of 2012, during the currency of the plaintiff's employment with Arisit. Flexi Personnel submitted two further short reports on 29 October 2012 and 17 June 2013 in response to a request for information regarding the current earnings of a motor mechanic, soldier, machine operator and cleaner in light bench type work.[140]
[140]PCB 92 and 93a-b
153 In relation to an earlier vocational assessment and labour market analysis performed by Nabenet at the request of the defendants’ solicitors in 2012,[141] various jobs were suggested as employment options for the future. The plaintiff was cross-examined about a number of these, namely, employment in Customer Service with Telstra, in computer and camera sales with JB Hi-Fi, as an information desk officer at a shopping centre and as a corporate concierge.
[141]DCB 108-111
154 A further vocational assessment was undertaken by a different vocational assessor, CAC, on 23 July 2012, again on behalf of the defendants. It was submitted that the jobs suggested in this report, namely work as a sales assistant in a video/gaming/Telstra or other shop, as an information clerk in a shopping centre, as a corporate concierge, as a service station cashier/attendant or as a ticket/seller were also options open to the plaintiff.
155 I have generally preferred the later evidence of Ms Angel and Ms Green because they both had an opportunity to consider the plaintiff's employment with Arisit and comment on employment recommendations made in the defendants' earlier vocational assessments. Moreover, their conclusions are mostly compatible with the up-to-date medical opinions concerning the plaintiff’s physical loss of earning capacity.
156 The plaintiff placed particular reliance on Ms Angel’s report dated 17 October 2012, where she has emphasised the likely impact on a potential employer of factors such as the plaintiff’s presentation in job interviews, his minimal work record and transferrable skills and his disability. Her report generally indicated, among other things, that:
Ø the plaintiff’s particular difficulty with writing and spelling impacted on his earning capacity and was apparent when the plaintiff was unable to complete a form without the assistance of the consultant during his assessment;[142]
[142]PCB 78 and 84
Ø the plaintiff's disability has and will in the future impact on his work capacity and future prospects of employment;[143]
[143]PCB 81
Ø despite at the time being employed by Arisit, the plaintiff had a limited capacity to productively perform any type of employment due to his hand impairments and emotional state;[144]
[144]PCB 84
Ø even were allowance made for the plaintiff's disability, his pain levels and symptoms would restrict the plaintiff's capacity to performing factory work/light bench type process work or office work[145] ("… Jordan's work capacity would be affected by his left hand injury as he would have to find a position where he was not required to perform heavy physical tasks with his left upper limb, which would limit his future prospects of gaining suitable employment… The loss of use of a person's upper limbs even partially, drastically reduces their productive work capacity particularly when performing tasks which require strength and speed and dexterity of hand and arm movements"[146]);
Ø the plaintiff's employment opportunities were limited by his inability to provide a work reference indicating that he was fit for unrestricted duties and that he was a reliable and productive employee;[147]
Ø even with further training, the plaintiff has limited transferable skills and on the open market he would need to find a compassionate employer prepared to risk employing and training him and also prepared to make allowance for his likely reduced productivity.[148]
[145]Ibid
[146]PCB 84
[147]PCB 82
[148]PCB 85
157 The plaintiff was cross-examined extensively about the various positions identified in the Nabenet and CAC reports. Whilst, from time to time he readily acknowledged an ability to perform various aspects of each position nominated, I formed the view that it was unrealistic to assume that, where the plaintiff may have an aptitude (or thought he had an aptitude) to learn individual tasks, some or all of these positions represented realistic job options for the future.
158 The evidence of Ms Angel and Ms Green, both of whom have expertise in assessing the tasks involved in the suggested jobs, led me to the view that the plaintiff's capacity to pursue careers in sales or retail, service station or cashier work and concierge work had been damaged and these positions probably were not realistic options for this plaintiff. For instance, I accept that in addition to his lack of transferable skills the plaintiff probably does not have the interpersonal skills required for some of the positions recommended, nor the dexterity to work in others.
159 This is not to say that by reason of the plaintiff’s physical disability and reported pain levels, he is totally incapacitated for all forms of employment in the future, as the evidence shows that the plaintiff has a residual earning capacity which he has exercised in the past.
160 The evidence of Ms Green suggests that the plaintiff may be suited to part time work as a production machine operator or as a factory process worker. Allowing for the plaintiff's post-injury work as a cleaner, Ms Green also indicated that, subject to compliance with the restrictions recommended by his doctors, this work could represent suitable employment for the plaintiff on a full-time basis.[149] I have given less weight to this evidence because Ms Green’s assessment was completed in September 2012, when the plaintiff was still employed by Arisit and before the plaintiff encountered difficulties in performing and maintaining the pace of this type of work which caused a tolerant employer to terminate the plaintiff's employment.
[149]PCB 117-120
161 Moreover, if in the future, the plaintiff, who has in the past has shown a real determination to obtain employment, was successful in obtaining full-time employment as a machine operator or as a cleaner/light bench type work, the earnings report submitted by Ms Angel on 17 June 2013 indicates current earnings for a 40 hour week of $35,464 gross per annum and $34,153 gross per annum respectively. These earning would represent a financial loss of 40 per centum or more.
162 Based on the evidence I was satisfied that:
Ø there is evidence of permanent loss of physical earning capacity, although none of the medical evidence suggests that the plaintiff’s hours of employment are necessarily restricted;
Ø the up-to-date medical evidence supports the proposition that the plaintiff is likely permanently precluded from working in positions requiring him to use his left hand in heavy, forceful or repetitive work or in work requiring manual dexterity or speed;
Ø by reason of the impaired functioning of his left hand, as claimed, the plaintiff probably has lost the capacity to pursue careers in the ADF or as a motor mechanic. These are careers currently attracting remunerated at the rate of at least $60,000 gross per annum;
Ø in the years since the injury, the plaintiff has applied for and undertaken alternative work over short periods of time and he has expressed and shown a willingness to try alternative employment;
Ø the problem confronted by the plaintiff in exercising any residual earning capacity is that where he has obtained employment his physical disability has been largely responsible for the loss of regular employment. For instance, I have accepted the plaintiff’s evidence that, in November 2012, his physical disability was responsible for the loss of the plaintiff's full-time employment with Arisit, for which he was remunerated at the rate of $35,006.40 gross per annum;
Ø by using the figure of $60,000 gross per annum as a reference point, the likely disability-related loss of earning capacity at the time of the plaintiff's employment with Arisit, was productive of financial loss of 40 per centum or more;
Ø to date the attempts by the plaintiff to undergo occupational rehabilitation and retraining have not overcome the difficulty the plaintiff has in maintaining regular employment;
Ø putting to one side the times at which mental health issues have impacted on the plaintiff’s ability to work, the plaintiff’s work history since the injury suggests that he is likely to have intervals of unemployment due to his disability;
Ø if section 134AB(38)(g) of the Act applies to this plaintiff, he has met the requirements of this provision in that further rehabilitation and retraining are unlikely to improve the plaintiff's physical capacity for employment so as to result in the plaintiff earning more than 60 per centum of his gross income from personal exertion.
163 I find that in accordance with section 134AB(38) of the Act, the plaintiff has a permanent loss of earning capacity of 40 per centum or more. Furthermore, when judged by comparison with other cases in the range of possible impairments or losses of hand function, the plaintiff's loss of earning capacity is fairly described as being more than significant or marked, and as being at least very considerable.
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