Cassells v Wimmera Supermeat Market Pty Ltd

[2009] VCC 928

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WARRNAMBOOL
CIVIL DIVISION
DAMAGES - COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-08-05612

KATHRYN MARGARET CASSELLS	Plaintiff
v
WIMMERA SUPER MEAT MARKET PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	28 July 2009
DATE OF JUDGMENT:	17 August 2009
CASE MAY BE CITED AS:	Cassells v Wimmera Supermeat Market Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 0928

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.134AB(38) – application for leave in respect of pain and suffering damages and pecuniary loss damages – back injury – series of incidents including one upon which reliance not placed – capacity for part-time employment in selected duties – whether burden of proof has been discharged in relation to pecuniary loss damages – whether consequences flow from incidents upon which reliance is placed – factors to be considered

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Brookes SC with	Maddens Lawyers
Mr N Bird
For the Defendant	Mr P Scanlon QC with	Lander & Rogers
Ms F Ryan
HIS HONOUR:

General Background

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”.

2          The plaintiff seeks leave to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. In so doing, she relies upon paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. The particular injury relied upon is one to the low-back. Reliance was also placed nominally upon paragraph (c) of the definition but Mr Brookes, on behalf of the plaintiff, indicated at the outset that, whilst the claim under paragraph (c) was not being abandoned, the presentation of the application would be concentrating on paragraph (a). That was what in fact eventuated. I would say now that the plaintiff has not discharged the burden of proof in relation to any permanent severe or permanent severe behavioural disturbance or disorder. She adduced no expert evidence in this regard. The defendant had organised for the plaintiff to be examined by Dr Don Senadipathy, consultant psychiatrist, who expressed the view that the plaintiff was not incapacitated by reason of her mental condition. Accordingly, in those circumstances the claim, so far as it is based on paragraph (c), fails. Of course, psychological and psychiatric factors continue to require consideration insofar as, pursuant to s.134AB(38)(h), they cannot be taken into account other than for the purposes of paragraph (c).

3          I will not set out here the numerous authoritative decisions of the Court of Appeal which are relevant. The plaintiff relies upon specific incidents of injury occurring on approximately 23 September 2005 and 23 November 2006. As was properly conceded by Mr Brookes, each of these incidents must be viewed separately in order to ascertain whether the statutory tests have been satisfied, and they are not to be viewed cumulatively. Furthermore, one of the additional numerous complications in this matter is that the plaintiff sustained a further incident in the course of her employment with the defendant in August 2007, and that incident is not relied upon in this application. However, clearly its effects were always going to be the subject of discussion as this last incident effectively brought the plaintiff’s employment with the defendant to an end. Insofar as there was any potential reliance upon the course of employment generally, this was not made out, although Mr Brookes quite properly stated at the outset that the plaintiff did not intend to assert that this was a general aggravation type of injury, and that references to heavy lifting in the course of employment were made only for the purposes of clarifying what was involved in her pre-injury duties.

4          The plaintiff bears the burden of proof in this matter, including the burden in relation to proving a loss of earning capacity.

5          Mr D Brookes SC, with Mr N Bird of counsel, appeared on behalf of the plaintiff. Mr P Scanlon QC, with Ms F Ryan of counsel, appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent, which was a most successful and cost-effective manner in which to run an application such as this. In addition, counsel made thorough and very helpful submissions.

Factual Background

6          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i)        The plaintiff

7          I say at the outset that I found the plaintiff to be a completely frank and honest witness. Indeed, as shall be discussed, at times her answers and information which she volunteered did little to advance her cause, particularly in relation to pecuniary loss and work capacity. I am firmly of the view that she did her best to answer questions honestly and accurately, and this includes her description of the symptoms and restrictions from which she suffers. In summary, I found her to be an impressive witness whose credit was in no way damaged.

8          I note that Dr Senadipathy, examining on behalf of the defendant, described the plaintiff as pleasant and co-operative and that Mr Miller, examining on behalf of the plaintiff’s solicitors, similarly described her as co-operative. I would agree with these observations, which reinforce my view that the plaintiff presented as a frank, pleasant and co-operative witness.

(ii)       The plaintiff’s background, training and pre-injury employment

9          The plaintiff is aged forty-six years, having been born on 20 February 1963. She is a married woman with adult children.

10        She was born in Horsham, and essentially has always lived in rural Victoria. She did not complete Year 11 of her schooling. She then worked for three years at a roadhouse doing cooking and performing general roadhouse duties. Whilst there, she met her first husband, and with him she operated a nursery business in Cobram for approximately two and a half years. She then had her family, and was also subject to gynaecological problems, and was thus out of the workforce for some time. She and her husband then operated a grocery business in Rupanyup for approximately a year before the marriage broke down. Following that, and in approximately the late 1990s, the plaintiff worked for a camera store in Horsham where she printed and developed films. She was a keen and talented photographer, and worked for the Wimmera Mail Times at Horsham as a photographer for approximately two years until 2003.

11        She then commenced employment with the defendant in approximately January 2003 as a meatpacker on a full-time basis. Her duties there included the packing and wrapping of meat and taking orders, and I accept that some of her work involved heavy lifting and bending.

12        In summary, we have a woman of modest education but who has worked in a variety of occupations including the operation of small businesses.

(iii)      The injury

(a) The state of the plaintiff’s health prior to injury

13        It does not appear to me that the plaintiff suffered any back symptoms of note either prior to her employment with the defendant or prior to the incident of injury of 23 September 2005. As shall be discussed, true it is that radiological examinations carried out after the first incident of injury revealed degenerative changes in the lumbar spine, and it may be that these pre-dated the occurrence of the first incident of injury. However, I am satisfied that the plaintiff was not suffering from symptoms or restrictions of any significance emanating from her lower back prior to September 2005.

14        However, it is equally clear that she had suffered from depression and related symptoms prior to that date. The medical records of the clinic at which her treating general practitioner, Dr Cymbalist, practices reveal that the plaintiff was on anti-depressant medication between 2000 and 2003. Of course, as I am not finding that any claim had been made out pursuant to paragraph (c) of the definition, the potential impact of this is limited to psychological and psychiatric factors which may be playing a part in the plaintiff’s presentation and which cannot be taken into account.

15        I might add that it was not suggested that the plaintiff was receiving treatment from a psychiatrist or psychologist between 2000 and 2003, and I do not regard her telling Dr Senadipathy that she had no past history of mental illness as being in some way damaging to her credit. I accept her evidence that she did not class receiving anti-depressant medication from Dr Cymbalist as representing either a history of mental illness or of psychiatric treatment.

(b) The injury of 23 September 2005

16        The plaintiff injured her back on 23 September 2005 when she slipped on the floor at her place of employment, grabbed at benches, and jerked her back. That she suffered a back injury on that date was not the subject of any real dispute.

17        She continued to work with difficulty and saw Dr Cymbalist on 26 September 2005. Dr Cymbalist prescribed painkilling medication including Panadeine Forte and referred the plaintiff to physiotherapy. A back brace was also provided. The plaintiff was absent from work for approximately one and a half weeks and was paid full wages. Upon return to work, she was given light duties including answering the telephone and lifting objects of no more than five kilograms. Whilst it was put to her that she in fact returned at some stage to full-time duties, this was denied by the plaintiff, and ultimately Mr Scanlon conceded that this assertion had not been made out. I accept that, after the occurrence of the first incident of injury, the plaintiff worked only on restricted duties and on a part-time basis, this being at least initially approximately half normal working hours. The number of hours which she was working subsequently fluctuated.

18        I accept that the plaintiff’s back pain continued, and that her symptoms included sciatica on the right side. She also needed Valium, prescribed by Dr Cymbalist, for muscle spasms. On 30 October 2006 she was lifting a heavy tray of meat when she suffered pain in the upper back, and again saw Dr Cymbalist. At that stage she was prescribed Celebrex, and was not having physiotherapy.

(c) The incident of injury of 23 November 2006

19        The second incident of injury upon which reliance is placed occurred on 23 November 2006 when the plaintiff slipped on fat at her place of employment and jerked, hyperextending her back. Again, there was no serious challenge to the occurrence of this incident of injury.

20        The plaintiff worked on with some difficulties, and some days later collapsed at work because of an increase in severe back pain. She saw Dr Cymbalist on 30 November 2006. It would seem that she was forced by her back pain to take leave from work and to recommence physiotherapy. She was absent from employment from 1 December 2006 until 17 December 2006, when she resumed performing light duties throughout the day, two days per week. She continued on medication and physiotherapy.

21        Dr Cymbalist organised for a CT scan to be taken of the plaintiff’s back, and this was performed on 9 January 2007, the report being dated the following day (the report of the CT scan refers to it taking place in January 2006 – whilst this is possible, the plaintiff has sworn that it was in fact January 2007, and this seems more likely). The CT scan revealed a diffuse disc bulge without any narrowing of central canal or lateral recesses at L4/5, but a broad based posterior mid-line disc herniation indenting the anterior aspect of the thecal sac but with no compromise of lateral recesses or exit foramina, these signs being at the L5/S1 level. The conclusion was one of an L5/S1 disc herniation.

22        As I understand it, the plaintiff continued with part-time restricted duties. In April 2007 she had a further episode of severe low back pain in circumstances which do not seem to have been provoked by any specific incident. Prior to this, she had been engaged in a return to work plan and was in the sixth week of this, working five hours per day five days per week. Following this further episode, which appears to have occurred on 24 April 2007, the plaintiff was conveyed from her place of employment to hospital by ambulance.

23        In the meantime, on 10 April 2007 she had been referred to Mr David Wallace, neurosurgeon. He organised an MRI scan which was performed on 11 April 2007. It revealed a minor loss of disc signal throughout the lumbar spine from degenerative change. At L4/5 there was a minor annular bulge with an annular tear, but the disc was not touching any nerve root, the nerve roots being unremarkable. At L5/S1 there was a small central disc protrusion with an annual tear which was touching the right S1 nerve root and causing minor displacement, the other nerve roots being unremarkable. The conclusion was degenerative changes, particularly in the lower lumbar spine with annular tears at L4/5 and L5/S1, and a minor disc protrusion touching the right S1 nerve root. Mr Wallace reported that he had personally viewed the films and felt that the L5/S1 disc lesion was a minimal one and was not causing significant S1 nerve root compression from a surgical standpoint. Mr Wallace only saw the plaintiff on the one occasion.

24        The plaintiff underwent some cortisone injections. On 14 May 2007 she resumed work four hours per day three days per week, this gradually increasing to four hours per day, five days per week. The stated goal was to get her back to 25 hours per week, but this does not seem to have been achieved prior to cessation of employment. The plaintiff continued performing light duties on this part-time basis until the occurrence of the third incident. During this period the business closed down from approximately 7 June 2007 to 21 June 2007, when the plaintiff resumed restricted duties for 20 hours per week. I might say that I accept that the plaintiff suffered flare-ups of her condition from time to time during the course of her employment after September 2005, and on occasions fairly minor occurrences could aggravate her symptoms.

(d) The incident of injury of August 2007 and developments thereafter

25        The third incident of injury, being one upon which reliance cannot be placed, occurred in August 2007, the precise date being not entirely clear. The plaintiff tripped on a set of screwdrivers which she alleges were on the floor of the employer’s premises and near the ladies’ coffee room. She stopped work and has not engaged in employment since. From a history subsequently obtained by Dr Ho in January 2008, it would appear that the plaintiff’s physiotherapist might have advised her to cease work.

26        Thereafter the plaintiff has continued to see Dr Cymbalist at least once a month and has continued to take medication including Panadeine Forte. She has had periods of physiotherapy and has performed exercises at home. It would seem that she has also had two emergency admissions to hospital, one being in January 2009 when she attended the Wimmera Base Hospital with a four day history of acute chronic back pain following an episode of vomiting and diarrhoea. A diagnosis of acute exacerbation of chronic back pain was made, some physiotherapy was carried out and some surgical appliances, including a bed stick or post and a shower stool, were provided. The plaintiff was discharged on 7 January 2009.

27        Apparently the plaintiff was also hospitalised in March 2009 for a similar type of episode, but no report was made available concerning what then occurred.

28        The plaintiff agreed that she was not currently receiving any chiropractic or physiotherapy treatment, any such treatment ceasing in approximately 2006. She further agreed that the only treatment she had ever received had been from Dr Cymbalist, at the Wimmera Base Hospital, from Mr David Wallace (on one occasion) and from the physiotherapist. Dr Cymbalist does not provide any “hands on” treatment of a physical nature. Hydrotherapy treatment also ceased in 2006.

(e) Psychological and psychiatric factors

29        Pursuant to s.134AB(38)(h) such factors cannot be taken into account other than for the purposes of paragraph (c) of the definition of serious injury. Accordingly, any such factors shall be disregarded.

30        The only examination by a consultant psychiatrist has been that of Dr Senadipathy and, as I have already observed, he formed the view that, whilst the plaintiff suffered from depression and social anxiety of a moderate severity, she was not incapacitated by mental illness, but rather by physical injuries. Dr Cymbalist has referred to the plaintiff developing a chronic pain syndrome and to a physical problem complicated by emotional issues. Mr Russell Miller, orthopaedic surgeon, examining the plaintiff on behalf of her solicitors, has referred to an adverse psychological reaction. Mr Michael Dooley, orthopaedic surgeon, examining on behalf of the defendant, has referred to an element of ongoing depression and Professor Balla, consultant neurologist, similarly examining, believes that significant non-organic factors have aggravated the situation. The plaintiff has seen a psychologist on one occasion in recent times.

31        As shall be discussed, I am satisfied that the plaintiff has a genuine physical injury and the consequences of that physical injury are what will be considered. I acknowledge the existence of some contribution by factors which could be described as psychological or psychiatric. I shall discuss this aspect of matters further in my Ruling.

(f) The nature of the physical injuries suffered

32        The views of many of the examiners do not vary greatly in this regard. Mr Miller has diagnosed injury to the lumbar spine with aggravation of degenerative disease and disc injury at the L4/5 and L5/S1 levels. Dr David Kotzman, occupational physician, examining on behalf of the defendant in April 2008, diagnosed persisting low back dysfunction without radiculopathy as a consequence of an aggravation of lumbar degenerative disc disease. Mr Michael Dooley has expressed the opinion that the plaintiff aggravated underlying degenerative disc disease of the lumbar spine rendering it symptomatic. Professor Balla, whilst believing that the major issue is a muscular one rather than actual disc damage, believes that the incidents at work may have aggravated pre-existing degenerative changes. Dr Cymbalist simply refers to the plaintiff as having a disc problem whilst also referring to chronic pain syndrome.

33        It seems to me that the weight of medical opinion supports the proposition that the plaintiff has suffered the aggravation of degenerative disc disease of the lumbar spine, rendering what had been asymptomatic symptomatic, and that such aggravation has occurred particularly at the L4/5 and L5/S1 levels. On the balance of the evidence, I am of the view that such disc problems exist.

(g) Permanence

34        I am of the view that the injury, impairment and consequences suffered by the plaintiff are permanent within the meaning of the Act in that they will persist for the foreseeable future. In his report of 8 December 2008 Mr Miller expressed the view that the plaintiff’s injuries have substantially stabilised. I would also point out at this stage that it is the view of Mr Miller that the incident of September 2005 is likely to be the most significant of the various incidents under consideration. Mr Dooley, examining on behalf of the defendant, stated in his report of 26 March 2009 that he believed that the plaintiff would continue to note intermittent low back pain, and that from the orthopaedic viewpoint, he would not expect her condition to deteriorate. Mr Dooley also stated that, if the plaintiff continued with her fitness program, lost weight and sensibly modified her activity, her symptoms would “remain under control”. Whilst Professor Balla felt that the plaintiff’s condition may improve with appropriate pain management, he also stated that her prognosis was guarded and it was likely that some degree of pain would persist indefinitely. Reporting for the defendant in April 2008, Dr Kotzman expressed the view that the plaintiff’s injuries had stabilised and that the degree of impairment from which she suffered was permanent. Bearing in mind these opinions and the fact that the plaintiff has now been suffering symptoms for a period approaching four years, I am of the view that any consequences which she suffers as a result of the relevant incidents of injury are permanent within the meaning of the Act. These include the impairment and consequences arising from the injury sustained on 23 September 2005.

(iv)      The plaintiff’s rehabilitation, retraining and developments since the injury

35        The course of events after the plaintiff suffered the relevant incidents of injury has already been described above, and the plaintiff has not engaged in employment since August 2007. It has not been argued that the plaintiff has failed to co-operate with rehabilitation or retraining programs or has otherwise failed to comply with the requirements of s.134AB(38)(g). Indeed, nothing has been put before me which would indicate that retraining has been offered to her, and the date of the last “Jobseeker plan” in evidence would appear to be 20 September 2007. I note that at that time the plaintiff was described as an enthusiastic jobseeker. As shall be discussed, that still appears to me to be the case and she has taken some steps of her own initiative in this regard.

Ruling
(a) The contribution of the various incidents including that of August 2007
36	As earlier stated, the incidents upon which reliance is placed are to be assessed separately, and no reliance is to be placed upon the incident of August 2007 or the general course of employment.
37	Mr Miller is the only expert to have expressed a clear opinion as to the relative or comparative significance of the incidents. In his report of 8 December 2008 he has stated the following:

“On the information available to me it is likely that the most significant of these events was the event in September 2005 which was the first event and it would appear that after that event there has been an evolution and deterioration in the spinal disease.”

38        Not only is this the only clear expert opinion available, it is one which seems to me to have a logical foundation. The plaintiff was asymptomatic prior to the first incident. She has not been free of symptoms since. She was engaged in full-time employment of quite a physical and demanding nature prior to the first incident. She was never able to return to full-time employment thereafter, and was confined to restricted duties. There have been further flare-ups and incidents thereafter, but the commencement of her symptoms, including her incapacity, occurred in the incident of September 2005 and the consequences of that remain.

39        True it is that it was the incident in August 2007 when the plaintiff tripped on screwdrivers that brought her employment to an end. However, at that time she was working 20 hours per week on suitable duties, having achieved a maximum of 25 hours per week prior to the exacerbation in April 2007 and then slipping back to 12 hours per week before increasing to 20 hours per week on her way to 25 hours per week. The further flare-up following the screwdriver incident may have caused the physiotherapist to advise the plaintiff that “enough was enough” and to cease work, but already by then the plaintiff was a worker restricted to part-time work on restricted duties and suffering symptoms which, at times, could be sufficiently severe to warrant hospitalisation. I also note from the return to work plan operating at the time that her duties were indeed quite restricted.

40        I do not regard a case as having been made out in respect of the second incident, being that of 23 November 2006. Whilst that was followed by some 16 days off work, the plaintiff returned to part-time restricted duties, ultimately building up to 25 hours per week. The evidence before me does not support the proposition that the consequences of that incident can be separately identified or, even if they could be, are of sufficient magnitude to satisfy the statutory test.

41        In summary, it seems to me that the plaintiff’s application succeeds or fails on the basis of the incident of 23 September 2005, and I regard that as the principal incident of injury. Whilst I regard the incident of August 2007 as being of considerable less magnitude, any consequences flowing from it shall not be taken into account.

(b) Loss of earning capacity

42        The plaintiff had a capacity for some restricted employment prior to the incident of August 2007 and I am of the view firstly, that this is how her claim should be approached, and secondly that she has retained some capacity despite the intervention of the August 2007 episode. Without the 2007 episode, it may be that the plaintiff would have struggled to remain in employment, but that involves some speculation. The fact of the matter is that she was working 20 hours per week on quite restricted duties. If her remaining work capacity has then been destroyed, on the basis of the evidence before me there may be difficulties in attributing this consequence to the incidents upon which reliance is placed.

43        In relation to her retained capacity, Mr Miller has expressed the opinion that the plaintiff is not fit for her pre-injury duties, nor for work involving repetitive bending or lifting, or lifting of weights of more than 5 kilograms. She would also need to change her posture on a regular basis. He thought that a return to work as a bank clerk and customer service person, or in relation to bookkeeping, would be reasonable, providing that the restrictions to which he had referred were put in place. I might add that, as shall be discussed, I have some misgivings as to the plaintiff’s ability to engage in work as a bank clerk or a bookkeeper, bearing in mind her skills and education.

44        The reports of Dr Cymbalist are somewhat old, being dated 8 December 2007, and 7 March 2008. The report of 8 December 2007 was made at a time when the plaintiff felt unemployable, and Dr Cymbalist was of the view that she was unfit for work. Her subsequent brief report of 7 March 2008 refers to the need for the plaintiff to acquire further skills by way of retraining, to the high level of unemployment in the region, and to the lack of capacity on the part of the plaintiff to attend work regularly and reliably.

45        Mr Dooley, reporting for the defendant in March of this year, expressed the view that the plaintiff would be unfit to perform regular heavy physical work or work that involved a lot of bending and lifting, but would be capable of carrying out light physical work and clerical duties. He considered it feasible that she could work as a photographer if she had the required equipment. She had stated to him that currently she was unable to afford a modern new camera.

46        Professor Balla, reporting in April of this year, expressed the opinion that the plaintiff could not return to her previous form of employment involving lifting and standing for long periods, but believed that she could work as a part-time photographer or return to some sort of retail work on a part-time basis.

47        I might add that I do not accept the opinion of Dr Ho that the plaintiff is fit for her pre-injury duties. This was not argued on behalf of the defendant, and, given the weight of expert opinion, it is not a view which I accept.

48        In summary, I am of the opinion that the plaintiff has a capacity for work, and that is also her evidence. In this regard, the frank admissions by her in relation to her capacity potentially create problems or complications for her application insofar as it relates to damages for pecuniary loss. It may be that she is overly optimistic in this regard, but nevertheless her evidence cannot be ignored. I would refer to the following passages from the transcript of evidence given during cross-examination. The first extract to which I shall refer is at p.15 where the plaintiff was being cross-examined concerning the type of work which she performed in the nursery business and the skills which were necessary:–

“... do you still have the capacity to – you retain the capacity to

answer the phone?---Yes.

You retained the capacity to take bookings or orders?---Yes.

You retained the capacity to do banking?---Yes.

You can prepare the pay-in slip for the bank?---Yes.

If you were working in a nursery at the moment you could answer the phone, is that right?---Yes.

You could take orders from potential customers?---Yes.

You could ring distributors and suppliers and order plants?---Yes.

And you could send out invoices to customers and pay the suppliers either by cheque or – write out a cheque and pay for the plants that had been delivered to this nursery, is that right?---Yes.

It is fair to say is it not, that your skills in relation to administrative work in a nursery have remained with you, is that right?---Yes.”

49        The plaintiff then agreed that the type of things that she was doing in relation to the administration of the nursery was also something that she would have been able to do in the grocery store at Rupanyup.

50        At p.22 of the transcript, the following evidence can be found:

“Perhaps if I could ask you this question: have you applied for any

permanent job?---Yes.

Who did you apply to?---At the Harrow Hotel.

What job were you looking for at the Harrow Hotel?---Bartender.

Did you apply for that job because you wanted to work as a bartender?---Yes.

Did you get knocked back?---Yes.

You understood of course, having worked in hospitality, if I could use that expression, broadly, in terms of serving customers and the like, you would have a full understanding of the role of someone working as a bartender?---Yes.

In the knowledge of what that job was, you applied in the hope that you’d get the job and get full-time work?---Yes.

Because you knew that it was a job, knowing what was involved in the job, you knew it was a job that you could do?---Yes.

And you knew that you had the capacity to work as a bartender in a full-time capacity at the Harrow Hotel, and that’s why you applied for it?---Yes.

Indeed, if that job were available today, likewise you could apply again; is that right?---Yes.

And you have, as you well know, the capacity to work as a bartender at the Harrow Hotel, or in fact, one in Horsham, that right?---No.

Why not Horsham; because it’s too far?---Too far and it would not – and it’s a lot busier than what the Harrow Hotel is.

In any event, you have the capacity to work at the Harrow Hotel, is that right?---Yes.

And indeed you have the capacity to work serving at the Harrow milk-bar; is that right?---Yes.

And you have the capacity to work full-time serving at the Harrow milk-bar; is that right?---Serving, yes.”

51        The plaintiff was then cross-examined concerning her capacity to be a call- centre operator, a proposition with which she agreed, although I might say that I found this suggestion less realistic. In any event, at p.24 of the transcript the following question and answer can be found:

“And so you’d agree with me that there’s a wide variety of work that you know and believe that you could work in, in full-time, if that work was available?---Yes.”

52        I might add that the plaintiff, in giving the answers referred to above, and particularly those in relation to the Harrow Hotel, was not being badgered, and did not appear confused. The impression given was that the evidence concerning her job application at the Harrow Hotel and her capacity to perform work there was something which she volunteered, and came as something of a surprise to the cross-examiner, Mr Scanlon.

53        At pp.30 and 31 of the transcript, the plaintiff was cross-examined concerning discussions which she had with a Ms Hansen of Work Options, a vocational assessment organisation, in September 2007. During the course of that cross-examination, the plaintiff agreed that she would be able to work as a receptionist in a motel or hospital, but had reservations concerning her ability to do bookkeeping because she had failed an advanced business course and only had basic skills in relation to use of a computer. She again agreed that she would be capable of doing the hotel work at the Harrow Hotel.

54        The plaintiff also agreed that she could work as a receptionist at Edenhope, which she stated was some 40 kilometres from her home in Harrow. However, she expressed the reservation that, depending on the pain level which she was experiencing on a particular day, she might have to stop once or twice on that drive. The plaintiff stated that she could not engage in the creative photography which she used to perform, because it involved a lot of lying on the ground, squatting, being on top of ladders and the like, but could engage in what she described as “Mickey Mouse” photography if she had the appropriate equipment. She also stated that the skills which she had acquired when working at the camera store years ago were now outdated due to the introduction of digital photography, and she would have to acquire new skills in that regard.

55        In re-examination the plaintiff described the various restrictions that she now has as a result of her symptoms, such as having to be on her knees to make the bed, sitting on a trolley while she washed and dried dishes, and having to use a bedpost which assists her in getting out of bed and keeping her balance whilst so doing. She also stated that she could not roll herself over in bed, and sometimes the pain is excruciating. A visit to the local football on the Saturday before the hearing of this case resulted in her being confined to bed with back pain all day on the following Sunday. Having given evidence of that type, and evidence confirming that she had not been able to return to full-time duties with the defendant, the plaintiff stated that she would not be able to guarantee an employer that she could work five days every week.

56        It was also elicited from the plaintiff in cross-examination that she had been seen and assessed by Mr Bill Radley, having been sent to him by her solicitors. Mr Radley is a psychologist who also has some qualifications in relation to vocational assessment. He has given evidence before me more than once, and professes expertise in relation to the employment situation in western Victoria. The plaintiff agreed that she had been sent to Mr Radley for assessment and that he provided a report. The plaintiff agreed that she had seen the report and it had suggested that she had a capacity for employment. The report of Mr Radley was not placed in evidence before me by the plaintiff’s legal representatives. Mr Scanlon asked me to draw the appropriate inference as a result of this failure, and in fact to go beyond the drawing of the usual inference because of the plaintiff’s evidence that she had in fact seen the report which suggested that she had a capacity for employment.

57        The report of Dr Cymbalist of 7 March 2008 refers to the fact that the plaintiff is not fit for her pre-injury duties, but is interested in pursuing further study to prepare her for less physical work. It also contains the observation that currently the plaintiff has no work capacity, and, that until she has further education to assist in updated skills, Dr Cymbalist did not feel that she would be successful in acquiring a position. She concludes this report with the comment that there is high unemployment in the region, that the plaintiff does not have office skills, and that her incapacity would make her unfit to go to work regularly and reliably.

58        As stated earlier, it might be argued that the plaintiff is adopting an overly optimistic attitude in relation to her capacity for employment. However, it is difficult to go past her own assessment of what she can do. When that evidence is combined with the more recent expert medical opinions, it seems to me that she does have a capacity for certain select part-time duties. I also draw the inference that the evidence of Mr Radley would not have assisted the plaintiff in this regard.

59        The next issue is whether this could be described as a realistic capacity, remembering the factors listed in the definition of “suitable employment” to be found in s.5 of the Act. In this regard I shall bear in mind the observations of Buchanan JA in Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230. I shall also bear in mind what was said by Smith J in Sodexho Australia Pty Ltd v Rowe [2009] VSC 298. Although that latter decision is one dealing with statutory benefits rather than serious injury, the test to be applied is much the same, and the observations of His Honour are pertinent.

60        In Majkic, Buchanan JA said as follows:

“… If the phrase ‘suitable employment’ qualifies only the income from personal exertion the worker is capable of earning, the work on one side of the comparison may be a contrived, adventitious, short-term occupation bearing little or no resemblance to the work for which the worker is suited. I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing his normal work.”

61        In Sodexho, Smith J was dealing with s.93CC of the Act and whether the worker involved had a current work capacity. The definition of “current work capacity” to be found in s.5 of the Act takes one back to the definition of “suitable employment” found in the same section, and which is relevant to the present discussion. Smith J referred to the passage from Majkic which I have quoted above. Referring to the decision of the Medical Panel that was at the core of the appeal before him, His Honour stated:

“The Panel in fact appears to have applied what has been the accepted position for some time, and that is to accept that the requirement of ‘suitable employment’ refers to employment that is meaningful or not artificial.”

62        His Honour went on to say that the concept of “’suitable employment’ … implies a requirement of meaningful and not artificial employment”.

63        Further, His Honour said as follows:

“…I do not accept the argument advanced for Sodexho. It proceeds on the assumption that the worker is engaged by a third party in a ‘real job’. But that is the issue to be decided. Where, as in the present case, the worker is trying to earn some income from work but is having great difficulty and can only do so in circumstances where an employer is able and willing to extend not only flexibility of hours but also the choice of hours to the employee and is willing to retain the person even though their disabilities mean that they can only work up to seven hours a week and then only for periods when well enough, one could well understand the Parliament deciding that in such situations it would be appropriate for the worker to receive 75% of his or her average weekly wage received prior to the injury. ….”

64        The difficulty in the present case, and what distinguishes it from the situations in Majkic and Sodexho, is that the plaintiff has identified and applied for a job in her home town, and one which she believes she has the capacity to perform. The job was simply not available. It is a “real” job. It is not artificial. It is not contrived, adventitious or ostensibly short-term. It is not a position tailored to meet the peculiar needs of the plaintiff. The sad fact of the matter is that, at least at the present time, it is not available. The plaintiff says that she is aware of what is involved in the work. Earlier in her life she has performed work which, whist not identical, had some similarities.

65        The plaintiff’s frank admissions in relation to the hotel work, and bearing in mind that such work represents a real and meaningful job, takes one back to what was said by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33. As was said by Phillips JA:

“If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is ‘suitable employment’, whether or not the job is currently available.”

66        The evidence in relation to the hotel position alone seems to me to establish a capacity without turning to other statements of the plaintiff that she could work in the Harrow milk bar or, with difficulties, in a hotel at Edenhope, or perform receptionist duties. I might say that, given the affidavit of Leah Offord, proprietor of the general store in Harrow, and her observations of the plaintiff and her restrictions, one could well imagine that the plaintiff would have difficulties working in such a store. However, the bottom line is that the plaintiff seems to be eager to engage in some form of employment and has identified a job or jobs which she believes she could perform were they available.

67        I am reinforced in my conclusion that the relevant incidents of injury have left the plaintiff with a capacity for at least part-time employment by the following. Firstly, she had worked twenty-five hours per week on light duties with the defendant prior to a flare-up, which does not seem to have been the result of another specific incident, in April 2007. She returned on twelve hours per week, increased to twenty hours per week, and the plan was to get her back to twenty-five hours per week. Then the incident of August 2007, upon which reliance is not placed, intervened. This was a specific incident of tripping and not a flare-up which had no specific cause as may well have been the case in April 2007. If one disregards the August 2007 incident and its effects, plainly one is left with a person with some demonstrated capacity for employment, and whether or not this would have disappeared, increased, decreased or remained the same is speculative.

68        Secondly, there are the medical opinions to which I have referred, together with the inference that can be drawn in relation to the report of Mr Radley and the evidence as to its content.

69        Thirdly, in the last three years the plaintiff has received no physical treatment in the sense of physiotherapy, chiropractic and the like, and has only seen Dr Cymbalist. Incidentally, the plaintiff has only seen a psychologist once in the last two years, that being comparatively recently. Further, apart from the one reference to Mr Wallace, the plaintiff appears to have had no specialist treatment. She has also had no hydrotherapy since 2006. These matters, freely admitted by the plaintiff, are not raised as some sort of attack upon her credit but do seem to me to have some bearing upon the issue of capacity.

70        Once there is a finding of capacity for employment on the part of the plaintiff, it seems to me that the application in respect of loss of earning capacity encounters serious difficulties. This is particular so when the burden of proof borne by the plaintiff is taken into account. The evidence by way of figures in relation to earnings, potential earnings and the like was scant, if it existed at all. Mr Brookes advanced an argument on the basis of a capacity to work twenty hours per week compared with thirty-eight hours, this representing a decrease in excess of forty per cent. Whilst there may be circumstances where this “shorthand” approach could arguably be relied upon (possibly in a situation where a worker has remained in the same area of endeavour), this case does not seem to me to involve those circumstances.

71        A comparison based upon hours worked may produce the correct mathematical result if the comparative rates of pay, or the difference between them, remain a constant. In the present case, that is not the situation. Twenty hours work as a bartender may produce a totally different salary compared with 20 hours work as a meatpacker. It may not. However, in the absence of evidence, what is left is speculation.

72        Secondly, the plaintiff had reached 25 hours of work per week prior to the April 2007 flare-up, had resumed on 12 hours per week, and increased to 20 hours per week as part of a plan to get her back to 25 hours prior to the intervention of the August 2007 incident. She may have got to 25 hours per week but for that incident. She may not have. There may have been further flare-ups related to the original incident, or there may not have. Again, speculation would be involved. Further, if the plaintiff’s capacity following the original incident is seen as being 25 hours per week, and there seem to me to be good reasons for forming that view, on an hours worked basis and assuming a constant salary position, the decrease would not reach the required 40 per cent.

73        In an attempt to overcome the dearth of evidence, Mr Brookes pointed to the average weekly earnings referred to in the Work Options vocational report of 13 September 2007. For example, the average weekly earnings in relation to customer service, such as operation of a local business, are said to have been $570-$659 as at that time. Similar figures are said to be the average for receptionists at motels and the like. Apparently the plaintiff continued to receive full salary during her period of part-time work. The taxation summary provided reveals that, for the financial year ending 30 June 2007, she received $27,413. How that is constituted is not clear. If one assumed this to be the figure of “without injury” earnings, and there is no evidence available as to any higher figure, that would be approximately $527 per week. If one then took the earnings of a person in customer service or a receptionist as being the “after injury” earnings, and selected a salary of, say, $600 per week, that would be an hourly rate of approximately $15.79 (for a 38 hour week). If the plaintiff could perform this work for 25 hours per week, she would receive $394.75 per week or $20,527 per annum. Thus, the difference between “without injury” earnings and the “after injury” earnings would be well-short of the required 40 per cent. As previously stated, that calculation is based on a “without injury” earnings figure of $27,413 for the financial year 2006/07, it being the highest figure provided in relation to the plaintiff’s taxable income whilst employed by the defendant. As also stated, there is no indication as to how this figure is constituted. In fact, in the plaintiff’s claim form of 1 December 2006, which date falls within the financial year under consideration, and it being a form signed by her and also completed by the defendant, the plaintiff’s pre-injury average ordinary weekly gross earnings as at the time of injury (described as 23 November 2006) are shown as $484.50 with negligible overtime. If that figure were converted to an annual amount, it would be $25,194. Let us assume that that is the true “without injury” earnings figure. If the plaintiff could work 20 hours a week in customer service (which might include bartenders, although there is no clear evidence as to that) that would produce an annual income of $16,421. Again, that would be the “after injury” earnings. Even at 20 hours per week, much less 25, the deficit would still not reach 40 per cent.

74        I have gone through these figures at some length to demonstrate that, even if one somehow attempted to construct “without injury” earnings and “after injury” earnings from the few scraps of evidence that are available, it is more probable than not that the plaintiff would still fail to satisfy the requirements of s.134AB(38)(e) and (f). On the basis of the evidence in this case, once there was a finding that the plaintiff has a capacity for employment she was in difficulties in relation to discharging the burden of proof, and those difficulties were not overcome.

75        In summary, the plaintiff has failed to discharge the burden of proof, and leave is not granted to her to bring proceedings in relation to pecuniary loss damages.

Pain and suffering

76        In my opinion the burden of proof has been discharged in relation to pain and suffering damages. The consequences of the injury and impairment suffered on 23 September 2005 could fairly be described as being more than significant or marked, and as being at least very considerable.

77        I regard the plaintiff as a witness of truth and I accept her description of the symptoms, restrictions and consequences of the organic injury which I have found that she suffered on 23 September 2005. Mr Miller has expressed the view that the plaintiff has been left with significant long-term impairment. She will have reduced mobility as a result of what he describes as orthopaedic disease. As has been previously discussed and as referred to by Mr Miller, there are a number of restrictions in relation to the type of work in which she can engage.

78        In her more recent report of 7 March 2008 Dr Cymbalist refers to the fact that the plaintiff has had little relief or improvement in her disability regarding pain and mobility over the time since her injury and that her pain has taken on a chronic status. The plaintiff herself has described her disturbed nights, the excruciating pain which she experiences if she is in the wrong position in bed, and the need for the bed post to assist her in getting out of bed. She has described how she has to sit on a trolley in order to do simple things such as the washing and drying of dishes. Twice this year exacerbations of her condition have resulted in trips to hospital.

79        I also note the supporting affidavits and particularly those of Mr Tom Mclean and of the store proprietor, Ms Leah Offord. It is quite apparent from these that the plaintiff suffers a considerable number of restrictions in carrying out her everyday activities. The plaintiff herself has described in her affidavit such matters as the impairment of her sexual relations and the impact of her injury upon her social life. As has previously been discussed, she is no longer able to engage in the creative photography which she enjoyed. I would also point out that Mr Dooley, examining on behalf of the defendant, has stated that he did not believe that there was any deliberate exaggeration of symptoms. In summary, the plaintiff has already endured some four years of pain, suffering and restrictions. She is aged 46 years. There is no reason to believe that she has anything other than a normal life expectancy, and the symptoms and restrictions from which she suffers will persist for the foreseeable future. In those circumstances, it seems to me that she has clearly satisfied the statutory test.

80        As is evident from what I have previously said, I regard this impairment and these restrictions and consequences as having resulted from the principal incident of injury on 23 September 2005.

81        I might add that a finding such as this – the discharge of the burden of proof in relation to pain and suffering but failure in relation to pecuniary loss – is clearly contemplated by s.134AB(17) of the Act and this has been discussed recently in the joint judgment of Redlich JA and Beach AJA in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170.

Conclusion

82        In summary, the plaintiff has discharged the burden of proof in relation to her application for leave to commence proceedings for pain and suffering damages, and that leave is granted accordingly. She has failed to discharge the burden of proof in relation to pecuniary loss damages, and that aspect of her application fails and is dismissed.

83        I shall hear the parties as to any ancillary orders that are required.

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