Castaneda v Toyota Motor Corporation Australia Limited
[2017] VCC 318
•7 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00426
| MARIA ARELY CASTANEDA | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2017 | |
DATE OF JUDGMENT: | 7 April 2017 | |
CASE MAY BE CITED AS: | Castaneda v Toyota Motor Corporation Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 318 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury to the shoulders – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Leave granted to the plaintiff to commence common law proceedings for pain and suffering and loss of earning capacity in respect to injury to both shoulders suffered in the course of her employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M A Nightingale with Mr L Allan | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr G A Lewis QC with Ms S De Guio | Minter Ellison |
HIS HONOUR:
Introduction
1 Maria Castaneda seeks permission to start a proceeding for damages against the defendant under s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). I cannot give her permission unless she proves she has a “serious injury”. She says her serious injury is the permanent serious impairment or loss of a body function, namely, her shoulders. Although relying on pain and suffering and loss of earning capacity, she presented her case emphasising loss of earning capacity. Nevertheless, she seeks to proceed at common law in respect of both pain and suffering and loss of earning capacity damages.
2 I heard from Ms Castaneda, and a large number of documents were tendered.
Circumstances
3 Ms Castaneda is fifty-four. She was born in El Salvador and came to Australia in 1985. Although she has lived here since 1985, she used an interpreter to give her evidence. I will discuss her ability with English later. After her arrival, until 2000, Ms Castenada sewed men’s business shirts at home. In October 2000, Toyota Motor Corporation Australia Limited (“the defendant”) employed her as a sewing machinist.
4 Her career with the defendant was uneventful. In her first three years, she worked on a sewing machine at its Port Melbourne premises. She then went to its motorcar plant in Altona where, for the first three years, she worked on the assembly line. For about the next six years, she worked in the store, delivering parts to the assembly line. As with most store work, she handled many parts. Some were heavy. In time, her left and right shoulders were injured. The process of injury followed a typical pattern. Starting with pain between her shoulder blades in October or November 2010, there was an incident on 9 March 2011, with a day off work. Her duties became restricted but she could not cope.
5 Between May 2011 and her retrenchment in May 2012, Ms Castaneda did light work.[1] She placed plastic sheets on the front bumper bar of new cars. To do so, she tore the plastic from a stand at waist level. She rubbed the plastic with a very light scalpel to remove air bubbles. Once affixed, she would smooth the plastic. Since the car was on a stand and elevated, there was no work above her shoulder level. However, she did other things as well. Dr Middleton speaks of one of her jobs as that of “Loom”, involving repeated pincer movements and clipping. This job increased the level of her pain. Other times she picked, packed and delivered materials used for car interiors, headlights and tether wire.[2] These were heavy. She was retrenched in April 2012, with 349 other employees, and has not worked since.
[1]Defendant’s Court Book (“DCB”) 69
[2]Report of CoWork Pty Ltd, dated 8 August 2016, at page 15
6 Following her injuries, the defendant tried hard to give her suitable work. This is shown in the large number of offers of suitable employment. Following her redundancy, the defendant asked an organisation, Carfi, to assess Ms Castaneda’s suitability for jobs. Carfi identified these jobs: barista (or bar attendant); kitchen hand, and sewing machinist. Through Carfi, the defendant referred Ms Castaneda to a job-seeking assistance program. She started it in May 2014. The program helped her to prepare a résumé, a standard letter to include with the résumé, assistance with job applications, coaching for interviews, help to find suitable jobs and contacting potential employers for jobs. As a start, the program helped her to seek volunteer positions with nine organisations. The only interview was unsuccessful. Afterwards, the focus changed to further education: a Certificate III in Business Administration. To do the course, Dr Middleton wanted the supply of a “touch type mouse” and she would do touch typing. The defendant could not supply the mouse and Ms Castaneda did not do the course. Later, Carfi withdrew from further work with her.
7 Apart from the year 1999-2000, Ms Castaneda’s gross income from her employment with the defendant has ranged between $33,037 (in 2000-2001) to $68,618 (in 2009-2010). An employee of the defendant exhibited the gross earnings of two of the defendant’s employees doing similar duties to those done by Ms Castaneda between the years ending 30 June 2010 and 30 June 2015. Focussing on the years ending 30 June 2012, 2013 and 2014, and averaging those years for each worker, and then collectively, the gross earnings are $61,985.67. I accept this figure as most fairly reflecting her earning capacity had the injury not occurred.
8 At present, Ms Castaneda has pain in both shoulders. The pain is worse in the right shoulder. To some extent, the pain is always present in both shoulders. If she uses them, the pain worsens. She avoids pushing, pulling or lifting. In any event, movement in both shoulders is limited. She takes a Voltaren tablet three times each day. She takes a pain-reducing drug (Panadol Osteo) two or three times each week and up to six times in a day. These are not prescribed by her doctor. To reduce pain, she rubs Voltaren cream into her shoulders each night. She now has stomach pain and a burning sensation, and takes Nexium.
9 The pain from Ms Castaneda’s shoulders interrupts her sleep. Almost every night she wakes three or four times. Having woken, sometimes she struggles to go back to sleep and will rise and move around. Her lack of sleep is such that she feels tired in the morning. Sometimes she lies down during the day and sometimes she sleeps.
10 Ms Castaneda once enjoyed dancing and did aerobics. She no longer does either. As simple an activity as walking sometimes increases the pain in her shoulders. Interestingly, she does some gardening, housework and cooking now, but much less than before. She never enjoyed cooking. It is something she has to do. Now she is limited, in that she cannot lift heavy pots.
11 Ms Castaneda can drive a car. She is limited to 30 minutes of driving.
12 Although Ms Castaneda spent some time learning computer skills, she still cannot operate computers. She uses a laptop. She has a Facebook page. Her daughter helps her with her Facebook page. She once played a computer game called “Candy Crush”. The nature of the game was not explained. It is a game played against the computer. Using a keyboard, she played it for short periods of 5 or 10 minutes.
13 Ms Castaneda can dress, shower and brush her hair. She lives with one of her daughters, who has four children. Not unnaturally, she enjoys the company of her grandchildren. She cannot lift the youngest, a baby, even though she would love to do so.
14 Ms Castaneda’s education in El Salvador was limited. At school, she was not required to read books. Her school did not have a library. She finds it hard to read in her native tongue, Spanish.
15 Between 1993 and 2000, she worked from home making men’s shirts. Each day she went to the factory to collect her material and return her work. She did not speak to the ultimate customer.
16 Ms Castaneda has received certificates for English language courses:
(a)Certificate II in ESL, completed in June 2013;
(b)Certificate III in ESL, completed in December 2013;
(c)Certificate II in English as an Alternate Language completed in June 2014.
17 Ms Castaneda is studying English at present with Proven Training Solutions in Werribee. She started in November 2015. She studies 6 hours each of two days each week. The standard of her English is now much better than it was in 2000; however, it is difficult for her to retain what she has learnt. She finds writing in English hard. She is troubled by the grammar.
18 On 17 June 2016, Katarina Jakovljevic, an occupational therapist, interviewed Ms Castaneda. She did so for a vocational assessment. An interpreter assisted Ms Castaneda but left after 45 minutes of an interview which lasted two-and-a-half hours. Ms Castaneda coped in English, provided Ms Jakovljevic spoke slowly and repeated herself when Ms Castaneda did not understand. She was accompanied by one of her daughters, who presumably has much better English and would have helped. Ms Jakovljevic thought she understood her well and replied using basic words. Her pronunciation and enunciation were easily understood by Ms Jakovljevic.
19 Most days Ms Castaneda will go for walks. She watches television. She visits friends and they visit her sometimes. She denies she has, in effect, retired. She says she wants to work, but in something she can do. She liked the social side of working and the money she received.
Medical and other opinion
20 Dr David Middleton is a medical practitioner specialising in occupational health and rehabilitation. Unusually for specialists, he started treating Ms Castaneda early, starting on 21 April 2011, close to the date Ms Castaneda acquired her injury (9 March 2011). He has treated her many times over a long period. He gave her solicitor five reports. They are detailed and speak of his attendances upon her until 16 March 2016. I will not summarise the results of his attendances upon her. On my calculation, he has seen her on 46 occasions. Owing to the subacromial bursitis with impingement, he injected corticosteroids into her right shoulder four times and her left, three. These injections gave only short-term relief.
21 From the date of his first report in May 2012, Dr Middleton diagnosed the injuries for the shoulders as Rotator Cuff Syndrome, supraspinatus tendonitis, bursitis and impingement. Later, bowing to the opinion of a Medical Panel, he revised the diagnosis to bilateral shoulder dysfunction due to bilateral supraspinatus tendinopathy.
22 In writing his last report, Dr Middleton was asked to differentiate between the shoulders for the purposes of capacity for work. Whether he was bemused by the request or not, he reached the same conclusions for each shoulder. In combination, Ms Castaneda should:
(a)Restrict the activities of her shoulders to below shoulder height and above hip height and preferably at waist height;
(b)Pace herself when using her shoulders with breaks as she needs them; rather, specified breaks;
(c)Avoid repetitive, prolonged or forceful activities. The most force she should use is 2.5 kilograms and, then, only occasionally, and 1 kilogram on an “intermittent basis”;
(d)Work only part time with a graduated return to work ending at 3 to 4 hours in any one day on three non-consecutive days in a week, a total of 9 to 12 hours each week. Nevertheless, she would not always come to work because of her injuries: her attendance would be unreliable.
23 Dr Middleton considered the jobs identified in Carfi’s Vocational Assessment Report dated 2 November 2012 and rejected each of barista, kitchenhand and sewing machinist.[3] He said of each:
“Barista or Bar attendant: This job clearly has a significant physical role in that replenishment of drink dispensers, filling of refrigerators and knowledge and capacity to serve drinks, both alcoholic and non-alcoholic as well as professionally brewed coffee beverages would be required. Everybody would be aware that the process to extract the coffee brew requires forceful pulling on a lever well above shoulder height to perform this action, and is totally to be avoided. [What] is missing from this job assessment are the physical requirements of the inherent duties of the job. In my experience this is significant because it entails carrying bottles of drinks and bulk food supplies et cetera. The report notes that Ms Castaneda would need to complete a Barista course and a Food Handler’s course.
Kitchenhand: It is my opinion that consideration of this role is totally inappropriate as there are extensive physical activities involving the upper limbs, such as cleaning cooking utensils, pots and pans, assisting the chef, producing commercial volumes of food, lifting trays of food and beverages … .
Sewing machinist: Once again a sewing machinist is a highly physically demanding job involving in particular the upper limbs, and commonly involving reaching, pushing and pulling all of which are clearly designated as a work restriction.”
[3]Report dated 30 September 2014
24 Even though Dr Middleton reported again in January 2017, he did not discuss the three options identified by occupational therapist, Ms Jakovljevic, in 2016.
25 Giac Du is an occupational physiotherapist. Dr Middleton referred Ms Castaneda to him for treatment. He first saw her on 7 May 2011. By the time of her redundancy, Mr Du was positive:[4]
“Currently she has made good progress and should be able to do light to medium work using her upper limbs. She will continue to make further improvement with her shoulder condition if she continues with the exercise program given.”
[4]Report dated 22 May 2012
26 Dr Vijay Navani is a general practitioner. He started caring for Ms Castaneda on 15 April 2016, after Dr Middleton stopped seeing patients, having retired. His opinions are similar to those of Dr Middleton on the causal link between injuries and employment, diagnosis and capacity for work.
27 Mr Thomas Kossmann is an orthopaedic surgeon. At the request of her solicitor, he has seen Ms Castaneda on three occasions between April 2013 and November 2016. Over time, he gave her solicitor five reports. The last responded to a series of questions. As with Dr Middleton, the questioner sought responses to the shoulders separately. Mr Kossmann paints a somewhat similar picture to Dr Middleton:
(a)No employment or activities involving lifting of either arm;
(b)No prolonged or repetitive use of either arm;
(c)No working above shoulder or head height for either arm; and
(d)No carrying items greater than 5 kilograms for either arm.
28 Mr Kossmann linked the injuries to her employment with the defendant. He sees the resultant incapacity for work as permanent (foreseeable future). He says she has no work capacity now and in the future. However, a fuller explanation of Mr Kossmann’s views came from his second-last report, which followed an examination on 3 November 2016.
29 This report drew on his examinations over four years. In some respects, it is more emphatic, for he says she is restricted in terms of prolonged sitting, standing, walking, driving and stooping. With his detailed knowledge of her background, he says she has no transferable skills. She speaks limited English.
30 At each examination and using a goniometer, Mr Kossmann measured various movements of the spine and the shoulders. Comparing the results from each examination, they show a gradual decrease in movements of the shoulders.
31 Dr Peter Blombery is a vascular physician. At her solicitor’s request, he examined Ms Castaneda three times between June 2013 and September 2016 and prepared four reports. In his last report, he answered questions dealing with the shoulders separately. His report concerning his examination of Ms Castaneda on 8 September 2016 is important, for he identifies a pain syndrome:[5]
“It is my opinion that superimposed on the ongoing inflammation in the affected areas, she also had a component a non-specific pain syndrome present in the affected area, where there is sensitisation of pain nerve pathways, both in the periphery as well as the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. This process is also termed central sensitisation. This is an organic disorder of pain nerve pathways. The tenderness and pain that she has around her shoulders is more than what would be expected from the tendinitis and bursitis that she has. It is for this reason that I consider there is an additional component of a pain syndrome present.”
[5]Report dated 25 September 2016
32 Owing to the severity of her pain and its duration, Dr Blombery considered her unsuitable for any employment and that would continue for the foreseeable future. He did not suggest any treatment for the syndrome.
33 Mr John Anstee specialises in plastic and reconstructive surgery. He examined Ms Castaneda in November 2014 and September 2016 at the request of her solicitor. His initial opinion changed after the second examination. Based on investigations, his diagnosis was supraspinatus tendinopathy with subacromial bursa impingement of the shoulders. By then, he felt she could perform very light, or the lightest of duties, lifting no more than 1 kilogram, and that at bench level.
34 Dr Grant Ramage is an occupational physician. At her solicitor’s request, he examined Ms Castaneda twice; on 10 November 2014 and 5 September 2016. He wrote four reports. Following his last examination, Dr Ramage felt Ms Castaneda retained a partial capacity for work, hedged in by severe limits:
“provided she performs extremely light and unskilled manual work which does not involve repetitive lifting of more than 1 to 2 kg with her elbows forward from her sides, or lifting more than 3 to 4 kg at any time.”
35 Dr Ramage went on to comment on Ms Castaneda’s lack of English, poor education and narrow work experience to say that that it “would be extremely limiting to her in finding alternative occupations suitable to her physical restrictions”. If she found such work, her return needed to be graduated, starting at no more than 20 hours each week and increasing slowly to full-time employment.
36 Mr Ian Jones is an orthopaedic surgeon. At the defendant’s request, he examined Ms Castaneda twice, first in 2013 and then in May 2016. Mr Jones considered the shoulder condition was due to aggravation, caused by work performed with the defendant, and of pre-existing degenerative disease of the associated tendons. These aggravations were minor contributing factors to her shoulder complaint. Nevertheless, she was unfit for her pre-injury employment. Her lack of English would rule out clerical work, but she could do other types of suitable employment not involving any heavy pulling or pushing, or using either arm at or above shoulder height. These restrictions would last indefinitely. He suggested light packaging or processing work at bench level, as well as work as a school crossing supervisor, sewing machinist, personal care attendant and out-of-school-hours childcare worker. All of these could be done on a full-time basis.
37 Dr Dominic Yong is an occupational physician. At the defendant’s request, he examined Ms Castaneda in June 2014 and April 2016. As early as June 2014, Dr Yong diagnosed her condition as supraspinatus tendinopathy, adding her employment no longer contributed to her condition. He thought there were features of functional overlay, which led to magnification of her symptoms. Noting her restrictions, he felt she was incapacitated for her pre-injury duties with the defendant. The restrictions included avoiding repetitive tasks above shoulder height or reaching duties; avoiding repetitive firm pushing or pulling, and avoiding lifting more than 5 kilograms on a repeated basis. He suggested various activities, including an activity-based recovery program, to improve her condition. When asked about three kinds of employment, Dr Yong rejected two (barista and kitchenhand) and accepted the third as suitable.
38 By April 2016, Dr Yong saw features of rotator cuff dysfunction and deconditioning of the shoulders without any functional overlay. He maintained the earlier restrictions on what she could do. He, again, rejected as unsuitable, the jobs of barista and kitchenhand, and that of sewing machinist as suitable. He suggested a graduated return to work resulting in full-time hours after about six months.
39 In August 2016, the defendant’s solicitor gave Dr Yong a report from CoWork Pty Ltd, being a vocational assessment and labour market analysis. They asked him to look at four other jobs. He rejected one (personal care attendant) and found the other three suitable (school crossing supervisor, embroidery assistant/bridal seamstress and out-of-school-hours childcare worker).
40 On 8 August 2016, Ms Katarina Jakovljevic, an occupational therapist, wrote a lengthy report after a lengthy interview. She felt Ms Castaneda understood her well and responded using basic English words. She found her pronunciation and enunciation easy to understand. She thought Ms Castaneda had chosen a form of early retirement. She noted the recent onset of plantar fasciitis and took it into account in assessing suitable jobs. She also noted Ms Castaneda telling her that she could stand for about 30 minutes before her right foot became painful and walk for up to 20 minutes until affected by the same pain. She thought these factors suggested her residual physical capacity translated into work capacity: performing alternate duties full time until retrenched; undertaking a 10-week occupational rehabilitation program; attending four English language courses, including one on two consecutive days for a total of 11 hours. These factors suggested her suitability to be a school crossing supervisor, initially working for 8 hours each week.
41 Ms Jakovljevic suggested three other jobs, noting her current English skills are sufficient for them: embroidery assistant/bridal seamstress; personal care attendant, and out-of-school-hours childcare worker.
42 Ms Castaneda has a certificate in dressmaking. She worked for more than twelve years as a machinist and seamstress. Ms Jakovljevic saw a Certificate of Capacity issued by Dr Navani on 2 June 2016. It said she could not lift or reach above shoulder height and neck movements “with modifications”. The skills and the restrictions left open jobs such as an embroidery assistant or bridal seamstress:
“This work would involve sewing on buttons, sequins and other fine detail work in preparing high quality garments. Her shoulder symptoms should not affect her dexterity or using her arms ‘in the inner range’.”[6]
[6]DCB 135
43 Ms Jakovljevic noted Ms Castaneda’s first language is Spanish and thought this may be valued in the Spanish-speaking community, especially the elderly. As a companion or respite carer, she could work part time within a preferred client base. She can drive and could visit the elderly in their homes, who need company and light help. As Ms Jakovljevic said “there are paid opportunities in this”.
44 The job of out-of-school-hours childcare worker does not require lifting or carrying because the children are of school age and “generally willing to set up their own environment”.
The law
45 To gain permission, Ms Castaneda must prove:
(a)She has sustained an injury arising out of or in the course of her employment with the defendant. She does. All the medical practitioners saw her injuries as simple injuries. Mr Jones, alone, saw them as an extended injury. Since the weight of opinion sees them as simple injuries, I accept that view;
(b)The “injury” must be a “serious injury” where the latter is defined in s134AB(37). Here, it is a “permanent serious impairment or loss of a body function” where the impairment concerns her shoulders;
(c)The impairment or loss due to the injury must be permanent, which means likely to last for the foreseeable future;[7]
(d)“Serious” is satisfied by reference to the consequences of her impairment or loss of body function with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses of body function;[8]
(e)The pain and suffering consequence of an injury encompasses both the plaintiff’s experience of pain and suffering and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life;[9]
(f)An impairment or loss of a body function is not serious unless the pain and suffering consequence or the loss of earning capacity is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable;[10]
(g)Where, as in this case, Ms Castaneda relies on the loss of earning capacity consequence, she must prove a loss of earning capacity of 40 per cent or more, both at the date of hearing and permanently;[11]
(h)This loss is measured by comparing her gross income from personal exertion (expressed at an annual rate) which she is earning, whether in suitable employment or not or capable of earning in suitable employment, as at the date of hearing and whichever is the greater;[12]
(i)The calculation of the gross income in (h) comes from looking at that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred;[13]
(j)As in this case, where Ms Castaneda relies on paragraph (a) of the definition of “serious injury” and not paragraph (c), then s134AB(38)(h) tells me to ignore the psychological or psychiatric consequences of the physical injury. The extent of the operation of paragraph (h) is described by Maxwell P in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis;[14]
(k)Whether an injury is serious is largely a question of impression or value judgment.[15]
[7]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[8]Section 134AB(38)(b)
[9]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraphs [9] and [15]. See also Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraphs [38] to [44] and Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26 at paragraph [72]
[10]Section 134AB(38)(c)
[11]Section 138AB(38)(e)
[12]Section 138AB(38)(f)(i)
[13]Section 138AB(38)(f)(ii)
[14](2007) 15 VR 649 at paragraph [9]
[15]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628
Discussion
46 Ms Castaneda sustained an injury to her shoulders arising out of or in the course of her employment with the defendant. The impairment or loss is permanent.
47 An unusual aspect of this case is the early and continued involvement of Dr Middleton. I have not seen the like. As I said earlier, Dr Middleton became involved early and remained involved for about five years, until his retirement. He saw Ms Castaneda many times over the five years. He is an experienced medical practitioner with significant experience in his area of expertise. He was even employed as the Chief Medical Officer with the defendant. He stands well above the other practitioners. Dr Yong comes the closest but remains distant. He examined Ms Castaneda twice and is as equally qualified as Dr Middleton.
48 Before turning to the physical restrictions, I am troubled by Ms Castaneda’s knowledge of English. She used, and needed, an interpreter to give her evidence. She has completed three courses. She has been doing another since November 2015, 6 hours a day, two days each week. She has been learning English since 2013. She is much better than she was in 2013, but her spoken English remains weak. She is a poor student of English. I doubt she could cope with other courses leading to certificates. They are courses requiring reasonable English.
49 These injuries have left Ms Castaneda with marked restrictions. This is so, whichever practitioner was involved. I do not know whether Dr Middleton was aware of Dr Blombery’s identification of a pain syndrome. Whether he was or not, Dr Middleton knew, from long experience, the limitations of Ms Castaneda. Unsurprisingly, he stated severe restrictions, which I have already set out. He rejected the jobs of barista, kitchenhand and sewing machinist. For whatever reason, he was not asked about the jobs of school crossing supervisor, personal care attendant or out-of-school-hours childcare worker. I will consider each in light of Dr Middleton’s restrictions.
50 Ms Jakovljevic described the school crossing supervisor’s position. She attached an advertisement from Hoban. The work is undemanding. The lifting is marginal. The hours are short: 2 hours each day, in two one-hour sessions; five days a week, during the school year. The standing time is one to two hours. Although Ms Castaneda is limited to about 30 minutes with plantar fasciitis affecting her right foot, she could gain relief by leaning against a fence when children are not crossing. I do not suppose an Employee Working with Children Check will cause Ms Castaneda any difficulty. Although Dr Middleton saw her as an unreliable worker because of her injuries, I do not suppose that she would be unreliable in this type of job. It does not place any demands upon her arms and shoulders. It is suitable for her. The average gross is $28.00 per hour. For a 41-week school year, the gross annual earnings are $9,020.
51 Turning to the category of sewing machinist, Dr Middleton rejected it. He saw the job as highly physical with much reaching, pulling and pushing. Dr Yong saw the job as seated at a machine and operating a foot pedal while material is fed through the machine, with threads cut with scissors. Whatever kind of sewing machinist job was on offer, there would be prolonged and repetitive use of both arms.
52 Attached to Ms Jakovljevic’s report, and supplementary report, are three advertisements: one by Bluebell Bridal for an alteration specialist; another by Fairytale Bridal Boutique for a bridal seamstresses; and one for an embroidery assistant. These are examples of the category of sewing machinist.
53 Bluebell Bridal welcomed applications from people who: have previous experience in bridal gown fittings; are experienced in dealing with brides and bridesmaids; patternmaking and sewing experience; a mature outlook with impeccable presentation, and a positive ‘can do attitude’. The advertisement adds:
“To be successful in this role you will demonstrate a complete understanding of bridal gown construction and be skilled in alterations of bridal gowns. Relevant industry experience in bridal gowns is essential along with excellent attention to detail.”
54 Fairytale Bridal Boutique sought three persons for at least three to four days each week “with potential for full time for the right person”. The advertisement required “proven bridal experience with references a must”.
55 Ms Castaneda learnt dressmaking. Whether she could recall what she learnt does not matter, for the work involves use of her outstretched arms and using them above shoulder height. Although the burden of proof lies with Ms Castaneda, these are highly selective areas of work. Ms Castaneda would not even be interviewed. If she sent a résumé, it would be ignored.
56 Programmed Skilled Workforce advertised for an embroidery-room assistant for a large maker of industrial wear in Keysborough. It is a full-time job. The essential attributes include an ability to work in a fast-paced environment, a proven track record in achieving and meeting deadlines, excellent communication skills (written and verbal) and a quick learner with strong computer skills. At least, in relation to those attributes, Ms Castaneda would fail miserably. She could not work fast. Her communication skills are poor. She has limited computer skills. Although she claimed to be a fast learner, I doubt that, in light of her struggles with English.
57 These are but examples. Looking at the category, I feel Dr Middleton’s view of the work is closer to the mark than Dr Yong’s. There is a lot of reaching, pushing and pulling. Ms Castaneda worked for years at home, sewing business shirts. It did not involve working above shoulder height, but needed repeated use of her arms and shoulders. It would increase her pain. This example, and the category itself, would exceed Ms Castaneda’s capacities.
58 Personal care assistant is the broad category under which the suggestion of companion or respite carer was made. Physically, Ms Castaneda could do these jobs in the way they are described by Ms Jakovljevic. She attached two advertisements: one from Mecwacare, and one from the Carinya Society. Mecwacare speaks of a direct care worker. Carinya Society seeks personal care attendants and casual support workers. Both require a Certificate III in Aged Care and a Level 2 First Aid Certificate. Both positions are unsuitable for Ms Castaneda as she lacks both certificates. I daresay she would not be able to get either.
59 But the category encompasses a wide range of jobs. If there was a need to shower, dress or help with a person’s movements, then Ms Castaneda would fail. Dr Yong recognised the weakness when he spoke of individual assessment. Whether there are jobs within this category that Ms Castaneda could do physically is speculative.
60 The out-of-school-hours childcare worker position requires a Certificate III in Children’s Services. I doubt Ms Castaneda could obtain this certificate in the foreseeable future.
61 I appreciate these advertisements represent examples of broader categories and the burden of proof lies with Ms Castaneda, not the defendant. However, the restrictions imposed by Dr Middleton would not allow her into the broader categories of any, except for the school crossing supervisor. The annual gross amount for this job is $9,020. In view of the figure for gross earnings reflecting her earning capacity and the loss is permanent, I am satisfied the loss of earning capacity consequence for Ms Castaneda is “serious”. She has a loss of earning capacity of more than 40 per cent.
Pain and suffering
62 Ms Castaneda said the consequences are also “serious” for her from the perspective of pain and suffering. Her shoulders are always painful. Walking can increase the pain. She takes drugs to relieve the pain, but they are not very strong drugs. The pain disturbs her sleep: going to sleep; staying asleep, and going back to sleep. She wakes tired and sometimes sleeps during the day. She has given up dancing and aerobics. She does much less cooking, housework and gardening than before. The simple pleasure of picking up a small grandchild has been lost.
63 Most of her ability to work has been lost. Much of that loss is due to the effect of pain and the limits it places on what she can do. Her experience of pain is enlarged through the pain syndrome identified by Dr Blombery. While working, she met people outside her family. To a lesser extent, because of the limited hours, this would continue if she gained employment as a school crossing supervisor.
64 Ms Castaneda is now only fifty-four. She will likely endure this pain for many years.
65 The so-called “narrative test” is a stern one. The pain and suffering consequence of the impairment or loss must be more than significant or marked and at least very considerable. Whether it is or not, is determined after a comparison with other cases in the range of possible impairments or losses of body function. The issues that stand out here are the marked restrictions in the ability to use both shoulders, not just one, and the experience of pain and its likely duration, coupled with the loss of amenities. The overall effects satisfy the test.
Conclusion
66 I will give Ms Castaneda the permission to institute proceedings for damages for loss of earning capacity and for damages for pain and suffering.
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