Celik v Patrick Stevedores Holdings Pty Ltd
[2012] VCC 186
•13 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00813
| ORHAN CELIK | Plaintiff |
| v | |
| PATRICK STEVEDORES HOLDINGS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January 2012 | |
DATE OF JUDGMENT: | 13 February 2012 | |
CASE MAY BE CITED AS: | Celik v Patrick Stevedores Holdings Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 186 | |
REASONS FOR JUDGMENT
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| SUBJECT – ACCIDENT COMPENSATION |
| CATCHWORDS – Serious injury – pain and suffering and pecuniary loss – injury to lumbar spine – psychiatric injury |
| LEGISLATION CITED – Accident Compensation Act 1985, s.134AB |
| CASES CITED – Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 |
| JUDGMENT – Leave granted for pain and suffering damages and loss of earning capacity |
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with Mr N Duncan | Slater & Gordon Ltd |
| For the Defendant | Mr A Saunders | Herbert Geer |
HIS HONOUR:
1 In this application, the plaintiff seeks leave, pursuant to the provisions of Section 134AB of the Accident Compensation Act 1985 (“the Act”), to commence a proceeding claiming damages for injuries suffered by him on or about 5 November 2007 in the course of his employment with the defendant as a straddle driver (“the incident”).
2 In the application, the plaintiff alleges that by reason of the incident, he suffered:
(i) an injury to his lumbar spine;
(ii) a psychiatric injury, including Depression and an Adjustment Disorder;
and that the consequences of each of these injuries are such that he should be granted leave to commence a proceeding seeking damages against the defendant with respect to the pain and suffering and pecuniary loss he has suffered as the result of the incident.
3 In the application, the plaintiff relies upon two affidavits sworn by him dated 9 October 2010 and 1 December 2011 respectively. In addition, the plaintiff gave evidence in the course of the application and was cross-examined. Otherwise, the parties rely upon medical reports and other documents tendered by them.
4 In his affidavit dated 9 October 2010, the plaintiff described the consequences associated with the incident as follows:
·After the incident he was taken to the Freemasons Hospital by ambulance. He subsequently attended his general practitioner because of back pain arising from the incident. He said that his injury was subsequently investigated via a CT scan. (A CT scan of 8 November 2007 concluded that the plaintiff presented with “diffuse annular disc bulge at L4-5 with moderate right-sided foraminal narrowing, tiny posterior disc protrusion at L5-S1”.)
· Approximately one week after the incident, he returned to work, where he undertook modified duties until late December 2007, when he gradually returned to straddle driving duties. He said that he continued to suffer from back pain, stiffness and tingling to the toes of his left foot and that he was undergoing physiotherapy[1]. In this regard, the plaintiff said:
[1]PCB 7.
“I had not recovered from the injuries I suffered to my back and although I was working, I was continuing to suffer from back pain, stiffness and pins and needles in my left leg, particularly the calves. I was also continuing with physiotherapy and from time to time was being certified as unfit for normal duties but fit for modified duties.”[2]
[2]PCB 7.
· By reason of the severity of his back pain he was ultimately forced to cease work in 2009 and he had not worked since that date.
· He continued to suffer from constant low-back pain which was aggravated by activities such as prolonged standing or bike riding at the gym, or bending or twisting of his back. He said he had difficulty sleeping because of his pain and that he had –
“… taken to drinking alcohol to try to get to sleep. Previously I drank very little alcohol. I was prescribed Panadeine Forte but I suffered from quite significant complications, including constipation and bleeding of the bowel, so I only take medication if absolutely necessary. I also suffer from leg pain, especially in the morning, from the buttock to the heel, and sometimes pins and needles into the toes and the top of my foot, especially the first three toes.”
· Apart from being unfit to return to work, he described being restricted in his ability to train, coach and play soccer; maintain an element of fitness; snow ski; drive (such that he had been required to sell his manual vehicle) and perform a range of heavy domestic activities where bending and lifting was required.
· He described suffering from Depression, being withdrawn and socially isolated, and of not feeling like engaging in social activity.
5 In his affidavit dated 1 December 2011, the plaintiff said that:
· Activities such as walking distances or sitting for lengthy periods provoked and aggravated his left leg pain.
· His ingestion of Panadeine Forte had resulted in his suffering from diverticulitis and an anal fissure which had been caused by the constipation associated with his ingestion of Panadeine Forte:
“I cannot sleep at night because of back and abdominal pain without being disturbed throughout the night. I get up regularly to relieve bowel and bladder.”[3]
[3]Paragraph 6 of the affidavit dated 1 December 2011
· He continued to be limited in his ability to sit and stand for lengthy periods of time by reason of his back symptoms.[4]
[4]Paragraph 8 of the affidavit dated 1 December 2011
· Upon returning to work after his 2007 injury, he suffered from –
“… severe low-back pain which incapacitated me for two weeks before I was able to gradually participate in a return to work program, increasing my hours over a period of some six weeks until I returned to work on the straddle. After that I regularly consulted the onsite physiotherapist for massage and exercises and after 2007, before ceasing in 2009, I had ongoing chronic back pain.”[5]
· He had enrolled in a bookkeeping course in 2011, the progress of which had been interrupted by the death of his father and issues which arose with respect to the custody of his daughter. He said that he intended to re-enrol in the course and continue it to its completion.
The Plaintiff’s Viva Voce Evidence
[5]Paragraph 9 of the affidavit dated 1 December 2011
6 In evidence-in-chief, the plaintiff said that he was presently enrolled in a course which he described as being a Certificate IV in Bookkeeping at the Preston TAFE. He said that he attended the course two days a week and had completed six of fourteen subjects. The plaintiff described the course as being a bookkeeping course and said that it was his intention to finish the course. He said he had difficulty coping with the sitting involved in the course.
“Well, I always sit in the back of the class and I’d stand up regularly and stretch. It was extremely difficult just sitting in there in that position, especially when I was doing the computer classes. Posture, in front of the computer, wasn’t really good for me. It was very painful so I’d always have to move around and it was just a stressful experience.”[6]
[6]T 10
7 In cross-examination, the plaintiff agreed that within six weeks of the incident he had returned to working in the straddle. He accepted that following the November 2007 incident, he had suffered further injuries in August 2008, May 2009 and June 2009, and it was after the June 2009 incident that he had ceased employment. He said that upon his return to work following the incident, he had not sought treatment other than that which was offered to him by his employer which involved onsite physiotherapy, which he attended at least once a week.[7]
[7]T 18
8 The plaintiff said that having completed his Year 12, he had completed an Advanced Certificate in Accounting at the Kangan TAFE, a Certificate II in Floristry at the Kangan TAFE and a Certificate IV in Small Business Management at the Kangan TAFE. The plaintiff described the latter course as being a four-week evening course and as being “simple”.[8]
[8]T 19
9 The plaintiff said that he had previously worked at Hungry Jacks as an assistant manager and that this involved him in staff management, cash handling, occupational health and safety compliance and rostering. That he had operated a taxi and that he had worked at the Reserve Bank undertaking cash services, which involved processing notes through machines to check for counterfeits and manually destroying files and logging the fact that the files had been destroyed onto a computer system.[9] The plaintiff described his computer skills as being very poor.
[9]T 22
10 The plaintiff said that his re-training had been co-ordinated by STEPS and that his case manager was “Tristan”[10]. He said that his re-training had not involved any computer training and that it had been limited to this participation in his Certificate in Financial Services – Bookkeeping. He said that he expected this certificate would qualify him to work as a bookkeeper or payroll clerk but that he would require “a lot of training or schooling” to work as a trainee accountant. The plaintiff said that he was not aware what a payroll clerk did on a day-to-day basis; that he was unaware of the activities required of an accounts clerk, and that the only exposure he had had to clerical work was that which he gained in class.[11]
[10]Tristan Ellery
[11]T 31
11 The plaintiff said that his previous accounting certificate, which he completed in the early 1990s, was –
“… absolutely useless at the moment because I need my MYOB and I need to be able to do BAS statements and a lot of other things that are all computer based which had nothing to do with the course I did in 1992.”[12]
[12]T 28
12 In re-examination, the plaintiff said that following his injury in 2007, he employed massage and physiotherapy as supplied by the defendant on a regular basis, booking in for additional sessions as the result of his injury,[13] and described the difficulties which he had in undertaking his study in the following terms:
[13]T 32
“I couldn’t sit for too long. I would always go to the back of the class by the window and I would always get up during the class and stretch. The teacher knew very well what my condition was. I had spoken to them earlier. Sometimes during the class I’d go to the toilet and just stretch and do whatever I’d need to do. I’d also go for a walk around a little – they have a footy oval outside, so if I really needed to stretch my back out I would go for a walk around the oval during lunch or tea but it was extremely difficult sitting there, especially in front of the computers as well.
Q: What was the difficulty about sitting in front of the computers?---
A:I was always concentrating on the screen that was in front of me so I was always just leaning forward and that put a lot of pressure on my back, I found. I was really stiffening up there.
Q:Mr Saunders asked you, ‘Could you work as an accounts clerk?’. You said, ‘I hope so’. He said ‘Could you work as a bookkeeper?’ You said ‘Yes’. He said ‘Could you work as a payroll clerk?’ You said ‘Yes’. Tell his Honour how long you can sit or you could work at those positions.
A:I believe three to four hours a day probably three days a week at most. I would need that day in between to rest because it’s not just being at the job. It would be getting to the job as well, if I spasm because I have real – a lot of trouble in the mornings and if I spasm in the morning, I won’t be going to work that day so I need a day between to rest up.”[14]
[14]T 34
The issues
13 Two issues arise for my determination in this application:
· The first being whether the plaintiff has established that the incident upon which he relies is a material contributing factor to his present disability;
· the second being whether the pain and suffering and or the economic loss consequences resulting from the incident are sufficient to meet the statutory threshold established by the Act.
Causation
14 Causation is put in issue by the defendant having regard to the plaintiff’s involvement in incidents involving injury in August 2008, May 2009 and June 2009, and by reason of the fact that it was not until after the June 2009 incident that the plaintiff had ceased employment.
15 In considering the issue of causation, I take into account the following matters:
· Firstly, in a letter dated 4 February 2010, Allianz Australian Workers’ Compensation Victoria Limited, the authorised agent of the Victorian WorkCover Authority, accepted liability with respect to a claim for compensation for permanent impairment pursuant to s.98C and E of the Act with respect to an injury to the plaintiff’s lower back which occurred on 5 November 2007;
· Secondly, that the reason for this decision has not been explained by the defendant such as to make the decision irrelevant as an admission as to the incident giving rise to permanent impairment of the function of the plaintiff’s lumbar spine;
· Thirdly, I accept the plaintiff’s evidence, which was not the subject of challenge, that following the November 2007 incident, he developed symptoms of low-back and leg pain which persisted and from which he never made a complete recovery;
· Fourthly, a large body of medical evidence supports the plaintiff’s case with respect to causation; namely:
(i) Dr Jonathan Hooper – report dated 23 July 2009:
“I believe the incident of 2007 precipitated this man’s back troubles and the further incidents merely have been reoccurrences of the initiating factor.”
(ii) Mr David Brownbill – report dated 19 January 2012:
“On the information provided as I have outlined above, I consider that the incident of 5 November 2007 is a significant contributing factor to this man’s current injury and incapacity.”
(iii) Mr Peter Wilde – report dated 22 December 2011:
“On a background of existing L5 Pars defects and pre-existing degenerative disc changes, he aggravated his back at work initially on 5 November 2007 and with a number of further injuries over two years.”
(iv) Mr Michael Shannon – report dated 2 August 2011:
“Mr Celik is suffering from multi-level lumbar disc degeneration which has been aggravated by a series of injuries in the course of his employment.”
(v) Mr Stephen Leitl – report dated 5 November 2010:
“His lower back condition was pre-existing and aggravated by the workplace incidents described, including the incident of 15 June 2009.”[15]
[15] In expressing the opinions to which I have referred, each of the authors obtained a history of the plaintiff having suffered an injury in November 2007 which was aggravated in further episodes which occurred in July 2008, May 2009 and June 2009.
16 In my opinion, the medical evidence to which I have referred, when considered in the context of the plaintiff’s history of continuing symptoms following the 2007 incident, establishes on the balance of probabilities that the November 2007 incident is a material contributor to the symptoms and disabilities with which the plaintiff currently presents in his lumbar spine.
Capacity to Work
17 There is a consistency within the medical evidence relied upon by the parties that the plaintiff has lost any capacity to engage in heavy or unrestricted work, and that the condition in his lumbar spine restricts him to light work of a sedentary type. The issue which arises for my consideration is whether the plaintiff’s retained capacity for sedentary work would allow him to undertake such work on a full-time or part-time basis.
18 Generally, the medical opinions which comment upon the plaintiff’s retained capacity for employment are silent upon the issue as to whether the plaintiff’s retained capacity for sedentary-type work is likely to be part-time or full-time, apart from that of Mr Wilde, who opines that the plaintiff is fit only for part-time work.
19 The medical evidence as to this issue may be summarised as follows:
· In a report dated 10 December 2009, Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, opined:
“Effectively this man should avoid activities that put strain through the lumbar spine. His days of working on the wharf are over. He needs to utilise his previous education, his good interpersonal skills, his customer service skills and his previous clerical type options in order to look at future work going forward.”
· In a report dated 19 January 2012, Mr David Brownbill, a consulting neurosurgeon, opined that the plaintiff –
“… should in the future avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. From a physical neurosurgical point of view, it would be reasonable for him to attempt employment that avoids these actions, however under close medical supervision to determine his responses. …
His prognosis is uncertain. However with normal neurological examination findings, it is likely with the passage of time and the avoidance of the physical activities I have referred to above, he will be able to attempt a return to work in a graded fashion, avoiding the activities I have referred to.”
· In a report dated 22 December 2011, Mr Peter Wilde, orthopaedic surgeon, opined:
“He could perform sedentary or light work that did not involve significant bending, lifting or twisting. Mr Celik should be encouraged and supported to complete the Certificate IV in Bookkeeping that he previous[ly] almost finished but was interrupted due to family stress. …
As a consequence of the physical injury, Mr Celik can no longer engage in physical or manual work, including straddle driving for Toll Holdings or other similar work. He could however work part-time in sedentary or light duties employment.”
(sic)
· In a report dated 5 November 2010, Mr Stephen Leitl, orthopaedic surgeon, opined:
“He could be employed on alternate duties with the current or another employer and in the first instance could undertake sedentary duties that involve office work … He could return to work at sedentary duties that do not stress his lower back and on a graduated hours program. … A return to work must be considered in the light of restrictions imposed by his general practitioner. I consider that he is fit for alternate work of a sedentary nature with the above indicated restrictions.”
· In a report dated 2 August 2011, Mr Michael Shannon, an orthopaedic surgeon, opined:
“He is best suited to sedentary or semi-sedentary work where he has the option of varying his posture. … He does not have a capacity for pre-injury duties. He cannot work in alternative duties on the waterfront. He is capable of light sedentary or semi-sedentary work.”
and further, in a report dated 17 August 2011:
“Therefore, from the physical orthopaedic point of view I think that he is capable of performing the identified employment options; namely accounts receivable and payable clerk, payroll clerk, bookkeeper, general clerical assistant and trainee accountant. It is acknowledged that he is having some difficulty with his current studies because of difficulty with prolonged sitting attributable to his back condition.”[16]
Having Completed his Re-training, will the Plaintiff be Capable of Engaging in Full-time Sedentary Work?
[16] Given the statement by Mr Shannon that the plaintiff should seek semi-sedentary or sedentary work, when considered in the context of his recognition that the plaintiff had difficulty sitting for prolonged periods, it is probable, in my opinion, that little difference exists between the opinion expressed by Mr Shannon as to the type of work which the plaintiff should undertake, and that expressed by Mr Brownbill on the issue; namely, that the plaintiff should ideally avoid employment which involved him sitting for long periods of time.
20 The plaintiff’s current employment and vocational consultant, Mr Tristan Ellery, in a letter dated 12 December 2011, advised the plaintiff that a career change was essential having regard to his injury; that it was essential that he complete his Certificate IV in Financial Services in order to secure work in the financial field, and that it was appropriate that the plaintiff –
“… secure part-time work for 10-15 hours per week and gradually build up these hours over time as your capacity increases. … There is no specific timeframe in which the hours would increase, however I would suggest this would occur gradually as your capacity increases”.
21 In the course of his evidence, the plaintiff described having difficulty in coping with his requirement to sit whilst undertaking his Certificate IV in Financial Services, and said that he thought that it was likely, once he had completed his study, that he would be able to work approximately four hours a day, three days per week in sedentary duties.
22 The plaintiff’s evidence as to the difficulty which he has in sitting for long periods of time was –
(i) recognised by Mr Shannon in his report dated 17 August 2011;
(ii) accepted by Dr Brownbill in his report dated 19 January 2012, in which he opined that the plaintiff should avoid activities which involve prolonged standing or sitting;
(iii) recognised by Mr Wilde as restricting the plaintiff to part-time work only.
23 Whilst Mr Leitl was more robust in his view as to the plaintiff’s capacity for work than the other doctors who have opined on this issue, Mr Leitl:
(i) obtained from the plaintiff a history that “any activities and prolonged static postures aggravated his back pain;”
(ii) took no issue with the plaintiff’s accuracy as an historian;
(iii) opined that the plaintiff should avoid activities involving repeated lifting, bending, twisting and stooping
24 In these circumstances, I find it surprising that Mr Leitl would place no restriction upon the plaintiff’s capacity to sit or stand for long periods of time. For this reason, I generally prefer the opinions expressed by Mr Wilde, Mr Brownbill and Mr Shannon who, as I have commented, recognise the problems encountered by the plaintiff with prolonged sitting.
25 I find no reason to doubt the evidence given by the plaintiff as to the difficulties which he encounters in activities requiring him to sit for long periods of time. In my opinion, the plaintiff presented as a truthful and accurate historian. No issue was taken in this regard by the defendant nor was any serious concern voiced as to the plaintiff’s reliability as an historian by Dr Thomas; Mr Wilde; Mr Brownbill; Mr Leitl; Mr Shannon or Mr Battlay. Equally, the plaintiff’s determination to complete his re-training stands him in good stead as someone who is doing his best to minimise the impact of the accident upon his life.
26 Taking into account the plaintiff’s evidence, together with the medical evidence to which I have referred; I am satisfied that upon the completion of his re-training, the plaintiff’s retained capacity for the clerical activities described in the HealthE Work report of 12 September 2011 (all of which are largely sedentary), would most probably be limited to work:
(i) which at best would involve hours marginally less than full-time; and
(ii) which at worst involve little increase in the hours described by Tristan Ellery in his letter dated 12 December 2011.
Analysis as to Post-Injury Earnings
27 With respect to this issue, it is agreed between the parties that the plaintiff’s relevant “without injury” earnings figure is $104,000 per annum and that to satisfy the formula laid down by the Act), the plaintiff has the onus of establishing that his injuries will preclude him from earning a wage in excess of $62,400 gross per annum, or $1,200 gross per week.
28 As to the work which I am satisfied on the balance of probabilities the plaintiff is likely to be fit to undertake, in my opinion the starting point of that analysis involves the fact that the course which the plaintiff is presently undertaking, although described as a “Certificate IV in Financial Services-Book Keeping” involves a self-paced course of some 16 hours per week and of three to four months’ duration.[17] It must follow that the course is basic in nature.
[17]See the plaintiff’s evidence at T8; T29-30; and the Defendant’s Court Book page 89
29 Employment as a trainee accountant has been mooted as a field of employment available to the plaintiff after suitable re-training.
30 The duties required of a trainee accountant are described as including:
· the preparation of financial statements for presentation to boards of directors, management, shareholders and statutory bodies;
· conducting financial investigations, undertaking audits, preparing reports;
· advising on such matters as the purchase and sale of businesses, mergers, financing, suspected fraud, insolvency and taxation.
31 It seems to me that the chance of the plaintiff gaining the skills required to obtain a position as a trainee accountant, having completed a rudimentary bookkeeping course and a certificate in accounting in which he gained no training as to basic current practices, is unlikely, and that it is improbable that the plaintiff could, without very extensive further training, undertake the sophisticated duties described as being involved in that occupation.
32 As to whether the plaintiff would be capable of completing such re-training, I am satisfied that the plaintiff’s difficulty in sitting for long periods as described in his evidence, when considered with his relatively modest academic record, makes that unlikely.
33 I note that in her vocational assessment report dated 25 January 2012, Ms Katrine Green expressed the opinion that whilst employment as a payroll clerk, bookkeeper and trainee accountant –
“… are potential occupations once he has completed his studies. However at that time, given that Mr Celik does not have relevant work experience, he would need to secure an employee (sic) that would provide practical on-the-job training.
It is considered that if Mr Celik does complete Certificate IV in Financial Services … in the short to medium term he is likely to be suitable for accounts, sales clerk or general clerical roles. From a physical capacity it is considered that a general clerical role would be more suitable as although it is an entry level job, it has the potential to allow Mr Celik to alter his postures more readily than the accounts payable and or receivable than sales clerk roles which usually involve prolonged sitting.”
34 Whilst Ms Green identified employment as a trainee accountant as a potential field of employment for the plaintiff, I am satisfied, for the reasons earlier mentioned, that whilst the plaintiff’s present course might qualify him for a wide range of bookkeeping and clerical-type work, it is unlikely that he will ever develop the capacity necessary to obtain a position as a trainee accountant.
35 My opinion in this regard is reinforced by the prioritisation adopted by Tristan Ellery, the plaintiff’s rehabilitation consultant, in a report of 3 September 2010 as to employment options available to the plaintiff; in which he listed the plaintiff’s suitable employment options in the following order of priority:
(i) Accounts receivable and payable clerk;
(ii) Payroll clerk;
(iii) Bookkeeper;
(iv) General clerical assistant;
(v) Trainee accountant.
36 I consider it likely that the prioritisation by Mr Ellery in this regard was based upon the likelihood of the plaintiff being able to meet the criteria associated with each occupation.
37 Accordingly, I am satisfied that I should, when assessing the plaintiff’s retained earning capacity, take into account the income available to him in the following occupations;
· accounts clerk;
· payroll clerk;
· bookkeeper;
· general clerk.
Finding as to the Income available to the Plaintiff in suitable Post-accident Employment after Completion of Appropriate Re-training
38 Generally, I have some doubt as to the approach taken by Mr Janides[18] when quoting the figures which represent the wages available in the various occupations he has dealt with in the body of his report, for the following reasons:
[18]See the HealthE Work report dated 12 December 2011 at DCB 101
(i) The figures quoted by Ms Katrine Green in her report of 25 January 2012, are generally more conservative than those quoted by Mr Janides;
(ii) Mr Janides quotes:
§ the hourly rate available to an accounts clerk as being between $23 and $30 per hour (which would generate a gross yearly income of between $45,485 and $59,280), but opines that accounts clerks can earn in excess of $60,000 per annum;
§ the fact that a payroll clerk “can command” an hourly rate from $25 to $35 per hour (which would generate a gross yearly income of between $49,400 and $69,160 per annum), but opines that well experienced individuals can earn in excess of $100,000 per annum.
(iii) The source of statements made by Mr Janides as to the wage available to “well experienced” workers within a given profession are not explained or justified in any way, nor do they derive any support from the material annexed to his report which is largely silent as to the wage rate available with respect to the positions being advertised.
39 Given the plaintiff’s employment history, together with his age, and the very basic level of training which the plaintiff is in the process of completing, I consider it to be unlikely that the plaintiff would secure employment which gave him access to the highest levels of the hourly rates available in the occupations identified by Mr Janides.
40 Further, I am satisfied that the statements made by Mr Janides as to the yearly salaries which a qualified and well experienced individual might attract in a particular occupation are speculative statements which would depend so much upon the capability of the individual and the resources of the employer that they provide no real guidance as to the wage which is likely to be available to the plaintiff in a particular occupation on the balance of probabilities.
41 For the reasons to which I have referred, it seems to me appropriate to fix the wage which the plaintiff might command in clerical or bookkeeping type work identified by Mr Janides as falling in the mean range of each of the hourly rates identified by him as being applicable to the various clerical occupations he has referred to.
42 Adopting this approach, I consider it appropriate to employ:
· the hourly rate of $26.50 as the applicable hourly rate available to an accounts clerk;
· the hourly rate of $30 as the applicable hourly rate available to a payroll clerk;
· the hourly rate $22.50 as the applicable hourly rate available to a bookkeeper;
· the hourly rate $21.50 as the applicable hourly rate available to a general clerk.
43 Having regard to:
(i) The fact that the income available to the plaintiff in the occupation which attracts the highest rate of pay within the above categories (namely a payroll clerk earning $30 per hour) would generate a weekly income of $1,140.00 were the plaintiff capable of working a full 38-hour week;
(ii) My finding that it is unlikely that the plaintiff will be fit for full-time work in a largely sedentary occupation;
I am satisfied that the plaintiff has established that by reason of the injury suffered by him to his lumbar spine, he has suffered a loss of earning capacity which meets the statutory threshold fixed by the Act.
44 For the reasons set out above, I am satisfied –
· that the plaintiff has established that by reason of the impairment of the function of his lumbar spine he has sustained a loss of earning capacity, the consequences of which are, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable”;
· that the plaintiff is entitled to the orders sought in this application; namely, leave to commence a proceeding claiming damages for both the pain and suffering consequences and the loss of earning capacity consequences of the injury sustained by him the subject of this application.[19]
[19]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 (28 July 2009)
45 Having made these findings, I do not consider it necessary to make further findings as to the consequences to the plaintiff of the psychiatric injury which is relied upon by him in this application and I will hear the parties as to the precise from the orders sought in this application and upon the issue of costs.
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