Ceballos v Tronics Pty Ltd
[2016] VCC 1242
•26 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04421
| PATRICIO CEBALLOS | Plaintiff |
| v | |
| TRONICS PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2016 | |
DATE OF JUDGMENT: | 26 August 2016 | |
CASE MAY BE CITED AS: | Ceballos v Tronics Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1242 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to bilateral shoulders – rotator cuff tear – pain and suffering conceded by defendant – loss of earning capacity – fitter and turner – suitable employment – heavy manual work
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Jurokouski v Windsor Caravans [2015] VCC 1800; Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622; Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; Richter v Driscoll [2016] VSCA 142; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
Judgment: Application for leave to commence proceedings for pecuniary loss damages refused
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Forsyth | Patrick Robinson and Co |
| For the Defendant | Mr D McWilliams | Wisewould Mahony |
HER HONOUR:
Preliminary
1 The plaintiff was employed by the defendant as a fitter and turner. The plaintiff claims he suffered injuries to his right and left shoulders as a consequence of frequent and heavy lifting and handling of machine parts, during the course of his employment. The period relied upon is from 20 October 1999 until 21 September 2011, at which time the plaintiff ceased his employment with the defendant.
2 This is an application for leave to bring proceedings pursuant to s134(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) of the Act and the plaintiff seeks leave to claim damages for pain and suffering and loss of earning capacity.
3 Mr R Forsyth of counsel appeared for the plaintiff and Mr D McWilliams of counsel appeared for the defendant.
4 The body function said to be lost or impaired is the bilateral functioning of the plaintiff’s arms. Mr Forsyth submitted that it was permissible for me to aggregate the upper limbs, pursuant to the principles most recently set out in Jurokouski v Windsor Caravans.[1] I note that Mr McWilliams did not make any contrary submissions.
[1][2015] VCC 1800
5 The plaintiff was called to give evidence and was cross-examined. Also in evidence was an affidavit from the plaintiff’s wife. Medical reports and other material were also tendered. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions referred to in this Judgment.
6At the commencement of the proceedings the defendant conceded the plaintiff has a serious injury for pain and suffering purposes. Therefore, I need only determine if the plaintiff suffers loss of earning capacity consequences to the requisite level.
Relevant background
7 The plaintiff was 40 years old when the accident occurred and is now 45 years of age. He lives with his wife, Celia, and his three children.
8 The plaintiff was born in Chile. He attended school until he was 17 years of age, before undertaking training as a fitter and turner. The plaintiff then worked as a fitter and turner in Chile until he moved to Melbourne in 1996.[2] The plaintiff said that he had arranged employment in Melbourne prior to leaving Chile, and initially worked as a subcontractor for two years.
[2]Plaintiff’s Court Book (“PCB”) 16
9 In 1998, the plaintiff commenced employment with the defendant as a fitter and turner. The defendant produced conveyor machines for labelling supermarket products. The plaintiff said that initially, there were three daily shifts at the workplace, and about 45 people on the production floor. He said that in about 2008, changes were made in the factory such that there was only one shift and fewer workers.[3] He said the work became heavier at that time.[4] In the latter part of his employment, the plaintiff was doing mostly milling work and handling heavy plates and machine parts.
[3]Transcript (“T”) 32 Line(s) (“L”) 11-17
[4]T32, L18-24
10 Separate to his injuries the subject of this claim, the plaintiff had made previous claims under the WorkCover scheme. These were as follows:
(a)a back and stomach claim in 2001;
(b)a hernia claim in 2003;
(c)a left hand claim in 2005;
(d)a left shoulder and back claim in 2005;
(e)a claim for dental damage when struck in the jaw in 2007. This injury resulted in ongoing migraines; and
(f)a back claim on two different occasions in 2009.[5]
[5]PCB 18
11 The plaintiff said that after suffering each of these injuries he was able to return to work, initially on light duties, but eventually on normal duties. At the time he suffered his injuries the subject of this claim, the plaintiff’s only ongoing medical complaints were migraines arising from the 2007 work accident, and intermittent lower back pain.[6]
[6]PCB 18
12 Prior to suffering his injuries the subject of this claim, the plaintiff had enjoyed going to the beach and parks, playing soccer and other games with his immediate and extended family and flying kites. [7]
[7]PCB 26
The injury and its consequences
13 The plaintiff claims that he was required to perform frequent and awkward heavy lifting and handling of machine parts and fittings, and that this involved the frequent forceful use of his upper arms. He claims that he suffered injury whilst performing such tasks, noting an initial onset of pain in his right shoulder on 20 September 2011. The plaintiff continued at work for the rest of that day, but has not worked since.
14 The plaintiff lodged a WorkCover claim on 21 September 2011. His claim was accepted and he received weekly payments and medical expenses, with his weekly payments being terminated in March 2014.
15 On 21 September 2011, the plaintiff attended his general practitioner, Dr Luz Conejera. He complained to Dr Conejera about his right shoulder pain and was provided with a WorkCover certificate and painkilling medication. The plaintiff was also referred for an x‑ray and ultrasound of his right shoulder.
16 Soon after, the plaintiff was referred to orthopaedic surgeon, Mr Clifford, who performed an ultrasound-guided injection into his right shoulder.
17 In early October 2011, the plaintiff attended Dr Conejera and complained of left shoulder pain, which was also troubling him. Dr Conejera referred the plaintiff for an x‑ray and ultrasound of his left shoulder.
18 The plaintiff attended Mr Clifford again in late October 2011.
19 On 6 February 2012, an MRI scan was performed on the plaintiff’s left and right shoulder. The plaintiff understood this to demonstrate subacromial bursitis in both shoulders. At that stage, Mr Clifford did not recommend surgery.
20 In July 2012, the plaintiff was referred by Dr Conejera to another orthopaedic surgeon, Associate Professor Martin Richardson.
21 On 18 October 2012, Associate Professor Richardson performed left shoulder arthroscopic surgery on the plaintiff. In this surgery, significant subacromial bursitis was noted and a bursectomy and acromioplasty were performed.[8]
[8]PCB 39
22 Following this surgery, the plaintiff underwent physiotherapy.
23 The plaintiff was reviewed by Associate Professor Richardson on several occasions in the postoperative period. By 20 February 2013, he noted the plaintiff’s range of movement was improving and that the plaintiff was continuing to work on strengthening exercises.
24 On 26 July 2013, Associate Professor Richardson performed right shoulder surgery on the plaintiff. In this surgery, significant synovitis and bursitis were noted and a bursectomy and acromioplasty were performed. After this surgery, the plaintiff complained that he experienced worsening headache and migraine symptoms.[9]
[9]PCB 26 and PCB 36b
25 On 6 May 2014, Associate Professor Richardson performed a hydrodilation, as the plaintiff had discomfort in the range of movement of his right shoulder.[10]
[10]PCB 69
26 In July 2015, Associate Professor Richardson reviewed the plaintiff again. He considered the plaintiff’s range of movement to be good and that his strength was “coming along well.”[11] Associate Professor Richardson considered the plaintiff unfit to return to fitting and turning jobs and he recommended vocational training be organised, to help the plaintiff return to the workforce doing more appropriate duties than fitting and turning type work.[12]
[11]Defendant’s Court Book (“DCB”) 29
[12]DCB 29
27 The plaintiff’s current general practitioner is Dr Nader Mahani. He has been seeing the plaintiff since January 2015. In his report dated 28 July 2016, Dr Mahani stated that in his opinion, the plaintiff is unable to return to work in heavy physical jobs that involve lifting, bending and pressing. He considered the plaintiff capable of light jobs, consistent with his physical abilities. Dr Mahani expressed some concern about the plaintiff working as a machine operator, noting that repetitive movement of his arms and shoulders may aggravate his injury. He considered the plaintiff able to work as a school crossing supervisor.
28 The plaintiff said his shoulder pain is not constant, but that the pain is aggravated if he does repetitive things with his arms.[13]
[13]T27, L6-8
29 The plaintiff swore his first affidavit on 11 May 2015. At that time, he received physiotherapy twice a week. He also claimed that he took 200 milligrams of Tramal every second day, together with Panadeine Forte, Nexium or Pariet to help with stomach upset, and Zomig for his migraines.[14]
[14]PCB 24
30 In the plaintiff’s most recent affidavit, sworn 1 August 2016, he stated that he was prescribed Tramal, Nurofen Plus and Panadeine Forte for his shoulder pain.[15]
[15]PCB 36B
31 In cross-examination, the plaintiff initially said he takes Tramal approximately two days a week.[16] However, upon further questioning as to when he had last obtained a prescription of Tramal, the plaintiff accepted that he had last received a prescription on 26 October 2014.[17] He said he still had 14 tablets left from that prescription,[18] and conceded he had not taken Tramal as often as he had claimed.
[16]T13, L23-26
[17]T14, L9-15
[18]T15, L12-16
32 The plaintiff also conceded in cross-examination that he had not received a script for Panadeine Forte since August 2014[19] and had not taken it since about that time.[20]
[19]T17, L7-11
[20]T17, L12-14
33 The plaintiff then said that he mostly now takes Nurofen Plus, taking these three to four days a week.[21]
[21]T16, L19-25
34 I consider this a significant concession by the plaintiff. It demonstrated to me that the plaintiff’s shoulder pain is not as constant or intense as suggested by his false claim that he takes Tramal and Panadeine Forte on an ongoing basis.
35 On 1 September 2011, the plaintiff registered a cleaning business under his name which, he said, was only intended to involve his wife. The plaintiff believed that he had an ABN upon arriving in Australia, and thought, for the purposes of registration, that it would be easy to reinstate for his wife’s cleaning business. However, when his accountant informed him that this was not possible, he registered the cleaning business in his name.[22]
[22]T12, L27-31; T13, L1; T18, L1-11
36 It was put to the plaintiff in cross-examination that ABNs did not come into existence until the GST was introduced in Australia in 2000. The plaintiff remained adamant, however, that he had an ABN when he first came to Australia in 2006. I accept that his answers in relation to the ABN were genuine. I think it is likely the plaintiff confused the tax file number he had as a subcontractor, with the ABNs which are now issued for businesses. In my opinion, nothing turns on this.
37 The plaintiff said that he drove his wife and daughter to the cleaning jobs, and that he would sometimes lift the cleaning equipment, including a vacuum cleaner, from the car.[23] He said that he did not undertake any cleaning work or quotations, nor perform any bookkeeping work for the business.[24] He said that his wife would discuss the cleaning quotes with him, but that he was not actively involved in the quoting.[25] I accept the plaintiff’s evidence that while the cleaning business was in his name, the work was predominantly undertaken by his wife and daughter.
[23]T26, L4-15
[24]T20, L3-8
[25]T22, L14-15; T22, L23-29
38 The plaintiff has not undergone any rehabilitation courses. In his evidence, he said that he would love to do a course to help improve his English, and that he would be capable of undertaking such a course.[26]
[26]T30, L15-23
Medico-legal evidence
39 The plaintiff’s solicitors arranged for the plaintiff to be examined by general surgeon, Mr Kenneth Myers, in June 2016. Mr Myers considered the plaintiff suffered bursitis in the right and left shoulder, resulting from repetitive strains in the course of his employment. He considered that the right and left shoulder injuries restricted the plaintiff in his everyday activities, enjoyment of life and capacity to perform full-time or part-time employment.[27]
[27]PCB 49
40 The plaintiff’s solicitors also arranged for him to be examined by orthopaedic surgeon, Mr Kenneth Brearley, in July 2016. Mr Brearley considered the plaintiff suffered chronic subacromial bursitis and impingement in his right shoulder. He noted a similar condition in the plaintiff’s left shoulder, but with symptoms that were less severe. He considered that as a result of the right shoulder injury, the plaintiff was unfit to return to his pre-injury employment, either full or part-time, and was unable to do any other type of physical work. Dr Brearley also considered that the left shoulder caused the plaintiff some interference with his daily living activities, and also rendered him incapable of performing his pre-injury work or other heavy, physical work.[28]
[28]PCB 56 and 59
41 The plaintiff also sought to tender a vocational assessment report from Katherine Rintoule, dated 21 July 2016.[29]
[29]Marked For Identification (“MFI”) B – Vocational Assessment Report of Katherine Rintoule dated 21 July 2016 in particular pages 78 to 80 as identified by plaintiff’s counsel
42 The defendant objected to the tender of this report as it contained, in part, medical opinions for which Ms Rintoule was not qualified. In my opinion, the report also contained conclusions which were ultimately a matter for me to decide. In recognition of these objections, Mr Forsyth proposed to limit the report to comments on pages 78, 79 and 80, which detailed Ms Rintoule’s opinion as to what the working conditions, for the positions of machine operator, and school crossing supervisor, were likely to involve.
43 In support of his proposed tender of Ms Rintoule’s report, Mr Forsyth referred me to her biography.[30] The defendant maintained its objection to the tender of any part of the report.
[30]MFI B 83
44 I note that Ms Rintoule has extensive experience in human resources and recruitment. However, I am unable to ascertain from her biography what practical experience or knowledge she has in the work positions she described. Therefore, I am not satisfied Ms Rintoule has the necessary qualifications or “specialised knowledge”[31] to comment in the way that she did, and I am not prepared to admit her report into evidence.
[31]Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305 at [85]
45 The defendant’s solicitors arranged for the plaintiff to be examined by occupational physician, Dr Michael Baynes, in September 2015. I note that there are numerous errors in the report of Dr Baynes, including him taking a history that the plaintiff obtained the quotes in his wife’s cleaning business and that they employed casual cleaners. I accept the plaintiff’s evidence that he did not obtain any quotes, nor did they employ casual cleaners. I also note that Dr Baynes recorded that the plaintiff enjoyed reading a lot of English books and was able to write in English. I accept the plaintiff’s evidence that he is unable to write in English and that he does not read English books.
46 Dr Baynes was of the opinion that the plaintiff was fit for alternative duties, provided there was no lifting greater than seven kilograms or above head height. He considered the plaintiff fit for full-time hours. Dr Baynes recommended the plaintiff would be fit to work in light assembly or packing work, as well as undertaking work as a courier or truck driver. He also suggested the possibility of the plaintiff working as a school crossing supervisor.[32]
[32]PCB 26
47 The defendant tendered a suitable employment report prepared by Work Able Consulting, dated 11 January 2016. This report detailed numerous positions available in Melbourne, consistent with the restrictions identified by Dr Baynes’ report dated 1 September 2015. The report then provides photographs, as well as detailed job descriptions as to what is involved in working as a machine operator and school crossing supervisor.
48 The defendant’s solicitors also arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Michael Dooley, on two occasions, in August 2015 and July 2016. At the time of his first examination, Mr Dooley accepted that the plaintiff had developed rotator cuff tendon inflammation and inflammation of the subacromial bursa of each shoulder, during the course of his employment.[33] He considered the plaintiff’s clinical signs consistent with his condition, and he did not consider the plaintiff to be exaggerating his presentation. At that time, he considered the plaintiff able to perform alternative work including as a protection services officer, a driver and a deliverer of light goods.
[33]DCB 15
49 In Mr Dooley’s most recent medical report dated 14 July 2016, he noted that the plaintiff’s left shoulder had done better than his right shoulder.[34] Mr Dooley noted the plaintiff complained of ongoing intermittent shoulder girdle pain that limited his activity at and above shoulder level. He also noted intermittent nocturnal pain.
[34]DCB 19
50 Mr Dooley also provided a report dated 11 April 2016. Mr Dooley did not examine the plaintiff at that time, but merely responded to the Work Able Consulting report. Mr Dooley therefore based his opinion on his previous examination of the plaintiff in August 2015. In this report, Mr Dooley stated that in his opinion, the plaintiff had the physical capacity to undertake light machine operating work, provided he did not have to carry out regular heavy lifting, or a lot of activity at and above shoulder level. Mr Dooley was of the opinion that as long as the plaintiff could work at abdominal height, and did not have to reach out consistently, that he would be able to carry out such work. Mr Dooley also noted that such a return to work would need to be on a graduated basis, in the hope that he could potentially work full hours per day. He also considered the plaintiff capable of working as a school crossing supervisor.
51 I note, that in his report of July 2016, Mr Dooley made no comment as to the plaintiff’s work capacity, or his comments of April 2016. I therefore assume his opinion as to the plaintiff’s work capacity is as contained in the April 2016 report.
Plaintiff’s evidence on his work capacity
52 The Work Able Consulting report was put to the plaintiff in cross-examination. The plaintiff considered that he would be willing to “give a go at”[35] doing many of the duties listed for the role of machine operator, although he expressed some concern at certain tasks which involved using both arms.[36] However, the plaintiff indicated he would be willing to attempt such a job, as he was very keen to get back to work.[37]
[35]T37, L6-14
[36]T43, L6-8
[37]T28, L19-20
53 The plaintiff also conceded that he would be able to work as a school crossing supervisor, a job identified for its suitability in the Work Able Consulting report.
54 In cross-examination, the plaintiff was asked about a range of other potential jobs and his capacity to undertake such work. He said he believed he could work as a courier driver delivering light parcels.[38] The plaintiff also accepted he could be retrained to obtain work as a tram driver.
[38]T25, L16-25
55 The plaintiff also gave evidence that he believed he would be able to work as a production supervisor, in a workplace similar to the defendant’s.[39] He further acknowledged that he had sufficient experience to work for a business quoting cleaning jobs.[40]
[39]T38, L17-19
[40]T23, L8-18
56 The plaintiff gave evidence that he would like to study and improve his English, and that he felt physically capable of undertaking such study.[41]
[41]T28, L18-24; T29, L3-6; T29, L30-31
57 I considered the plaintiff’s concession in relation to the medication he now takes, as well as his acknowledgement that his pain is only occasional, to be significant when considering an assessment of the plaintiff’s capacity for suitable employment.
Permanent
58 In order to satisfy the definition of serious injury, the plaintiff must prove that the injury and its consequences are both serious and permanent.
59 It is to be considered a permanent injury if “it will probably persist and there will be no significant improvement over time.”[42]
[42]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, [19]
60 I am satisfied that the plaintiff suffers subacromial bursitis and impingement in both his shoulders, the condition being worse in the right shoulder. I am satisfied that this injury is permanent. The pain first arose approximately five years ago and has persisted after surgical intervention. There is no recommendation that he undergo surgery or any other type of treatment which may lead to an improvement in his condition.
Loss of earning capacity
61 To succeed in his application, the plaintiff has the onus of satisfying me that as at the date of hearing, he has sustained a loss of earning capacity of 40 per cent or more, and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
62 In determining the plaintiff’s claim for loss of earning capacity, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
“(a)the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b)the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.”[43]
[43]s134AB(38)(f)
63 In the three financial years before September 2011, the plaintiff earned the following gross annual income:
· Financial year ending 30 June 2009: $43,135
· Financial year ending 30 June 2010: $42,273
· Financial year ending 30 June 2011: $43,374
64 In the three financial years after September 2011, a comparable employee earned the following gross annual income:
· Financial year ending 30 June 2012: $45,718
· Financial year ending 30 June 2013: $47,418
· Financial year ending 30 June 2014: $50,283[44]
[44]Plaintiff’s Facts and Issues document
65 Mr Forsyth submitted that the comparable employee’s gross earnings in the financial year ending 30 June 2014, was the income which most fairly reflected the income the plaintiff was capable of earning, if not for his injury. Mr McWilliams accepted this was the appropriate figure.
66 Accepting this sum as the plaintiff’s pre-injury earning capacity, the average weekly wage is therefore $1,081.77 gross per week. Applying the statutory test, I must be satisfied the plaintiff is incapable of earning no more than $649.06 per week, and that such a restriction on his earning capacity will be permanent.
67 What constitutes “suitable employment” is an objective test, which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience, and whether the work is a reasonable distance from the plaintiff’s place of residence.[45] In Barwon Spinners Pty Ltd & Ors v Podolak, the Court of Appeal stated that it involves looking at a physical capacity for work, and it is not concerned with whether employment will or will not be obtained.[46]
[45]Barwon Spinners Pty Ltd & Ors v Podolak at [25] and [28]
[46]Ibid at [27]
68 The Court of Appeal recently considered the construction of the term “suitable employment” in Richter v Driscoll.[47] Although that decision related to a Medical Panel opinion and a worker’s claim for ongoing weekly payments under the statutory scheme, the court’s comments in relation to “suitable employment” may have application in Section 134AB applications.
[47][2016] VSCA 142
69 In Richter, Ashley and Kaye JJA stated:
“...The definition of ‘suitable employment’, which falls for consideration in the context of ‘no current work capacity’, plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment.”[48]
[48]Richter, at [76]
70 Further, Ashley and Kaye JJA said:
“ ‘Employment’ is a relationship in which a prospective employee must have something – a capacity to work in employment – to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker, as outlined in these reasons, lead the employer to conclude that the worker has nothing to sell.”[49]
[49]Richter, at [97]
71 Osborn JA agreed with Ashley and Kaye JJA, that the appeal be allowed. Osborn JA agreed that the ability of a person to return to work in employment, does not simply depend on the capacity of that person to “physically undertake particular tasks.”[50] His Honour said:
“Ability to return to work in employment is not simply dependent upon capacity to physically undertake particular tasks. The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated…
A worker may have no ability to return to work if the combination of his or her personal characteristics (e.g. age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[51]
[50]Richter, at [143]
[51]Richter, [143]-[145]
72 In the subsequent Court of Appeal decision of Harris v DJD Earthmoving Pty Ltd,[52] it was noted that under s134AB, the court must consider what work the plaintiff might, in the foreseeable future, be able to do on a regular and consistent basis.[53] In a footnote contained in that Judgment, Warren CJ and Cavanough AJA referred to the decision in Richter. Their Honours stated that in Harris, both parties had accepted that in serious injury applications suitable employment is a test of physical capacity, not employability. Warren CJ and Cavanough AJA noted that:
“The outcome would be the same on the matter before us regardless of the proper approach to be taken to the questions of statutory construction involved. Accordingly, it is not be necessary for us to form a view for ourselves on those questions, and we have not done so.”[54]
[52][2016] VSCA 188
[53]Harris, at [49]
[54]Harris, at footnote [59]
73 Whether Richter sits comfortably with Barwon Spinners, does not need to be explored now. As was the situation in Harris, in my opinion, it does not matter in this case whether the test for what the plaintiff is capable of earning in suitable employment is based on his physical capacity under the traditional Barwon Spinners approach or the broader concept of “employability” contemplated in Richter. For the reasons I outline below, under either test, the plaintiff fails to satisfy me he suffers the requisite loss of earning capacity.
74 In this case, all the doctors agreed that as a consequence of his bilateral shoulder injury, the plaintiff cannot return to his pre-injury work. As such, the issue for me to determine is what the plaintiff is capable of earning in suitable employment.
75 In respect of the plaintiff’s physical capacity, I was not assisted by the opinions of Mr Kenneth Myers or Mr Kenneth Brearley. Neither doctor provided any detailed reasons as to why they each considered the plaintiff incapable of performing full-time or part-time work of a physical nature. Further, both doctors had obtained a history that the plaintiff was still regularly taking Tramal and Panadeine Forte. Given the plaintiff’s concession that he no longer takes Panadeine Forte and rarely takes Tramal, I consider this a significant factor relevant to work capacity, such that I disregard their opinions.
76 I accept the opinions of Mr Dooley, Dr Baynes, and the plaintiff’s treating doctors, Associate Professor Richardson and Dr Mahani that the plaintiff is capable of light work. None of these doctors state the plaintiff can only work part-time.
77 Only Dr Baynes detailed the physical restrictions associated with such light work; that the plaintiff not be required to lift weights beyond seven kilograms, that he not be required to perform tasks above shoulder height and that he not be involved in repetitive forceful actions across the shoulders.
78 I note Mr Mahani expressed some reservations as to the suitability of the plaintiff working as a machine operator. However, I accept the detailed opinion of Mr Dooley that, provided he did not have to carry out regular heavy lifting, or carry out a lot of activity at and above shoulder level, the plaintiff would have the physical capacity to undertake such work.
79 Considering these medical opinions, as well as the plaintiff’s evidence, I accept the plaintiff has the physical capacity to work as a machine operator, or school crossing supervisor, and that such jobs would constitute “suitable employment”. There were also other jobs which the plaintiff acknowledged he would be able to do within his physical restrictions, and I accept those jobs also constitute “suitable employment”.
80 In the alternative, considering the plaintiff’s “employability”, as contemplated in Richter, I consider the following factors relevant:
·the plaintiff’s physical restrictions outlined above;
·the plaintiff takes minimal medication;
·English is the plaintiff’s second language. However, the plaintiff has reasonable skills in speaking and reading English, and is willing to study and further improve his English;
·the plaintiff attended school in Chile to age 17 years;
·the plaintiff is 45 years of age;
·his history of over 22 years with the one employer; and
·the plaintiff’s desire and motivation to obtain work.
81 In considering all of these factors, I consider the plaintiff has “merchantable”[55] qualities to sell a prospective employer, in the way contemplated in Richter.
[55]Richter, at [106]
82 Therefore, under either test, I accept that full-time work as a machine operator is suitable employment for the plaintiff. I accept that the gross income for a machine operator is $1,070 per week.[56] Therefore, I am satisfied the plaintiff has a current and future capacity for suitable employment, such that he is capable of earning in excess of the threshold amount of $649.06 per week.
[56]DCB 35
Orders
83 As the plaintiff has failed to satisfy me he suffers the requisite loss of 40 per cent, I refuse his application for leave to commence proceedings for pecuniary loss damages.
84 I shall make the consequent orders.
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