Chen v Brighton Australia Pty Ltd
[2016] VCC 439
•20 April 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-01835
| DONG CHEN | Plaintiff |
| v | |
| BRIGHTON AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 April 2016 | |
DATE OF JUDGMENT: | 20 April 2016 | |
CASE MAY BE CITED AS: | Chen v Brighton Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 439 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – concession that the pain and suffering consequences are “serious” – whether the plaintiff had a residual capacity for work for full-time suitable employment – whether the plaintiff had a limited residual capacity for work
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: The plaintiff granted leave to bring a proceeding at common law to recover damages for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Ms C Kusiak | Zaparas Lawyers |
| For the Defendant | Mr J Batten | Russell Kennedy |
HIS HONOUR:
Introduction
1 The plaintiff is a thirty-four-year-old man who was born in November 1981. He suffered a major injury to his lower back in the course of his employment with the defendant while working as a plasterer.
2 The application brought by the applicant was based upon sub-paragraph (a) of the definition of “serious injury”, that is, that the plaintiff suffered a permanent serious impairment or loss of the function of his lower back. He applied for leave to bring a proceeding for both pain and suffering and loss of earning capacity.
3 During the course of the hearing, the defendant conceded that the plaintiff’s pain and suffering consequences are “serious”. The application then proceeded on a very narrow basis which I will refer to in more detail below.
4 Mr J Richards QC appeared with Ms C Kusiak of counsel for the plaintiff, and Mr J Batten of counsel appeared for the defendant.
The issues
5 The defendant conceded that the pain and suffering consequences contended for by the plaintiff are “serious”.
6 The remaining issue was whether the plaintiff has retained a residual capacity which he can exercise in undertaking suitable employment on a full-time basis, or whether he has retained a more limited capacity to work any more than a maximum of 16 hours per week in suitable employment.
The Plaintiff’s background
7 It is necessary to set out some of the plaintiff’s background because some of it was relied upon by counsel for the defendant in his submissions that the plaintiff has the education, training, experience and residual capacity for work which outfit him to undertake a number of types of suitable employment.
8 The plaintiff was born in China. He completed his high school education in 1993. One of the subjects he studied was the English language. He subsequently pursued tertiary education in China. He completed a bachelor’s degree in electrical engineering in 2004. He then worked as an electrical engineer for the following six years, before arriving in Australia in 2010.
9 The plaintiff subsequently undertook a carpentry course at a TAFE college, completing Certificate III. He then commenced work as a plasterer through his own company working as a subcontractor. He was granted permanent residency in about November 2011. He commenced employment with the defendant in about August 2012.
The Plaintiff’s injury
10 The plaintiff engaged in physically arduous work as a plasterer with the defendant. He began to suffer pain in his lower back towards the end of 2012. He took his annual leave over the Christmas-New Year period. He returned from his annual leave on 14 January 2013. By 21 January 2013, he was suffering serious lower back pain, with pain radiating down into his left leg.
The Plaintiff’s medical treatment
11 It is unnecessary for me to summarise any of the medical evidence prior to the plaintiff undergoing surgery on 19 June 2013 because the defendant conceded that the nature and extent of the injury to the plaintiff’s lower back, following surgery, left him incapacitated for his pre-injury work as a plasterer. It was submitted that he retained a residual capacity for suitable employment.
12 The logical starting point is the plaintiff’s referral to Mr D’Urso, neurosurgeon. The plaintiff saw him on 9 April 2013. After reviewing a number of scans, Mr D’Urso concluded that the plaintiff needed surgery to ameliorate a substantial disc prolapse at L4-5. He performed that surgery on 19 June 2013. He performed an L4-5 laminectomy, discectomy and rhizolysis. In the course of performing the surgery, he found a substantial disc prolapse which led him to comment on the size of the disc fragments which were removed during the surgery. I assume the latter comments were made to demonstrate the extensive nature of the disc prolapse. He also identified a small the disc prolapse at L3-4 which was not causing any neural impingement.
13 Mr D’Urso last saw the plaintiff on 26 July 2013. In a report dated 20 August 2014, he described the surgery as being technically successful; however, in addressing the question of the plaintiff’s fitness for employment, he considered that the plaintiff had the capacity to perform full-time light duties but not work which involved repetitive bending, twisting or lifting. In relation to lifting, he considered that he should not lift weights in excess of 10 kilograms or lift from below knee level or above shoulder level. He considered that the partial incapacity for employment was permanent, and that the plaintiff’s capacity to return to suitable employment was dependent upon vocational training and acquiring skills which would outfit him for suitable employment within his retained capacity for work.
14 There are other medical opinions relied on by the parties which I will refer to later in these reasons. None of them seem to me to contradict the appropriateness of the treatment provided by Mr D’Urso nor his opinion regarding the plaintiff’s residual capacity for suitable employment.
The Plaintiff’s evidence
15 The plaintiff returned to his employment with the defendant on light duties in about September 2013. He was made redundant by April 2014 because the defendant did not have any light duties available for him to undertake.
16 A friend of the plaintiff named Ruiting Dai operates a plastering businesses known as RT David Pty Ltd. He offered the plaintiff work, which the plaintiff took up in about August or September 2014. He has not worked in that employment this year. He was effectively made redundant because of a lack of work. In his second affidavit, he described his actual duties as “… driving workers to and from a site, buying food and water for them and giving instructions to less experienced plasterers”. Films taken of the plaintiff on 19 and 26 July 2015 showed the plaintiff on a worksite working for that employer.
17 The films were relatively short. The following is a relevant summary of parts of the film relied on by the defendant. The first film was taken on 19 July 2015:
·At 8.22am, four men were seen around a vehicle unloading building materials. The plaintiff was one of those four men. He was wearing a fluoro top and had a workbelt fastened around his waist. At one point he carried what appeared to be a couple of lightweight lengths of steel on two occasions.
·At 10.42am, the plaintiff bent slightly at the knees. He was otherwise standing around a point at the building site for some minutes.
18 The next film was taken on 26 July 2015:
·At 8.22am, the plaintiff was inside a partially built house at the same building site. He appeared to walk reasonably freely. He entered a Honda SUV and drove off.
·At 9.29am, the plaintiff came out of an Officeworks building. He entered the Honda SUV and drove away.
·Between 11.54am and 12.24pm, the plaintiff was at the building site, inside the building. It was difficult to observe what he was doing because he was mostly obscured by the building and by the lack of lighting.
·At 12.24pm, the plaintiff entered the Honda SUV and drove to a shopping centre, where he ordered food and at various times was seen standing, apparently waiting for his order to be filled.
·At 12.50pm, the plaintiff returned to the building site in the Honda SUV.
19 The plaintiff agreed that he was shown in both films. He agreed that the films were taken on a Saturday. He said that between the first Saturday and the following Saturday, he was at the building site for three to four days in total, including the Saturdays. He stayed at the building site for about four to five hours on each occasion. He denied that he stood for the whole time that he was waiting for the food order to be filled. He said that he sat down for some of the time.
20 During examination-in-chief, cross-examination and re-examination, the plaintiff was asked repeatedly about the hours that he believes he is capable of working. He said that he could work in the type of work he was undertaking with RT David Pty Ltd, three or four hours per day, three or four days per week. On occasions when he has worked five hours per day, he has been met with unbearable pain.
21 The plaintiff was cross-examined to demonstrate that he is competent in terms of his education, training and experience to undertake one of the forms of suitable employment commented on by Dr Yong, specialist occupational physician. Those forms of employment were referred to in a vocational assessment and labour market analysis undertaken by an organisation known as CoWork Pty Ltd. The occupations Dr Yong commented on are:
·Vocational trade teacher (plastering)
·Construction estimator
·Import/export clerk
·Electronic engineering technician.
22 In particular, counsel for the defendant emphasised, through cross-examination, and in his final address, the following evidence:
·Despite the plaintiff relying on an interpreter, he has a reasonable competence in speaking and reading English.
·He has undertaken two courses since he suffered injury – Certificate IV in training and assessment, and Certificate III in plastering.
·He is a qualified electrical engineer. His qualifications had been recognised to some degree in Australia.
·The medical evidence suggests that he obtained a reasonable result from the surgery, returning him to a capacity for full-time suitable employment.
·He is capable of working up to 20 hours per week in the suitable employment he was undertaking with RT David Pty Ltd.
·He is able to undertake a gym program once a week, which involves him in using an exercise machine, a treadmill, an exercise bike and engaging in some jogging.
·He is able to walk for more than an hour at a time and jog short distances.
23 The plaintiff relied on the opinion of Dr Slesenger, specialist occupational physician. He considered that the plaintiff could work four hours per day, four days per week in work which did not involve pushing, pulling, carrying or lifting over 5 kilograms, and with no repetitive bending or twisting. He reviewed the forms of employment referred to by Dr Yong and CoWork Pty Ltd. He considered that all of those forms of employment were unsuitable for the plaintiff. In relation to vocational trade teacher, estimator and electronic engineering technician, it would appear that he considered that the plaintiff would not be able to tolerate the overall physical requirements of each of those forms of employment. In relation to import/export clerk, it would appear that he considered that the plaintiff was simply not qualified to do that sort of work.
24 Dr Yong considered that the plaintiff was not fit for his pre-injury employment. He considered that the plaintiff was fit for suitable employment so long as he avoided aggravating factors. He considered that appropriate work restrictions would be avoiding repeated bending and twisting of his back, lifting more than 10 kilograms on a repeated basis and having the capacity to vary his posture regularly between sitting, standing and walking. It would appear that Dr Yong and Dr Slesenger have a similar view of what restrictions ought to be placed on the plaintiff, and they appear to be also consistent with the opinion of Mr D’Urso.
25 Where Dr Yong disagrees with Dr Slesenger is that he considered that each of the forms of employment referred to by CoWork Pty Ltd are probably suitable, but he recommended that the plaintiff undertake a graduated return to work program commencing at four hours per day, four days per week with a progressive increase in hours over a four to five-month period. I infer that the reason for a graduated return to work program is for the plaintiff to become accustomed to the demands of the work, and to determine his physical capacity to sustain undertaking the tasks that would be demanded of him.
26 The issue of whether the plaintiff is only fit for limited hours of work or for full-time hours of work, depends upon my acceptance or rejection of the plaintiff’s evidence. Both counsel agreed with that proposition, and indeed, prefaced their submissions in that way.
27 There were a number of submissions made by counsel for the defendant directed to the central submission that the plaintiff has a residual capacity for suitable employment which he can exercise.
28 Firstly, the plaintiff admitted to Mr D’Urso that he obtained immediate relief from the surgery and was considerably better as a result of the surgery. The plaintiff explained that what he meant was that he was in such a parlous state before the surgery that the relief he admitted to had to be seen in that context.
29 Secondly, the fact that the plaintiff has been able to work for RT David Pty Ltd with a workbelt fastened around his waist, giving instructions to other workers, is light work, and work which he should be able to do full time.
30 Thirdly, the aggregate of the plaintiff’s secondary school education, tertiary education, certificate education in Australia and work experience means that he is outfitted to work in one of the forms of suitable employment referred to by CoWork Pty Ltd.
31 Fourthly, there was a hint in the cross-examination that the plaintiff is not fully exercising his residual capacity for suitable employment by only working limited hours.
32 I am not persuaded there is any merit in the attack made on the plaintiff. I accept the plaintiff’s evidence in whole that whilst he obtained a good result from the surgery, he has nonetheless been left with a lower back condition which does not bear up well to a working week much beyond the hours he last worked with RT David Pty Ltd.
33 I am fortified in reaching that conclusion for a number of reasons. Firstly, there was no serious attack made on the plaintiff’s creditworthiness nor his reliability. In any event, I consider that he is both creditworthy and reliable.
34 Secondly, something can be learnt about the plaintiff’s motivation from his past history. It is a very good past history of the pursuit of education and training, and in particular, a capacity to undertake the very heavy manual work of a plasterer. It must be remembered that the plaintiff earned $97,778 gross in the financial year ending 30 June 2013, which must mean that he worked a very significant number of hours. Furthermore, in one week, he earned $3,000 gross, demonstrating his keenness to work long hours.
35 Thirdly, after recovering from the surgery, the plaintiff returned to suitable employment after about four months. It occurs to me that he did so because of a high motivation to return to work consistent with an attitude demonstrated by his past history of education and pursuit and undertaking of work.
36 Fourthly, I do not accept that the plaintiff has not exercised his residual capacity for work to the extent that he is able to. I accept that he is unable to work more than the hours he last worked with RT David Pty Ltd because of the onset of pain and disablement demonstrated by the fact that when he worked five hours in one day, he was met with the onset of increasingly significant pain.
37 Fifthly, I do not accept that any of the types of suitable employment referred to by CoWork Pty Ltd constitute suitable employment. In that respect, I accept the analysis made by Dr Slesenger of each of those types of suitable employment, and why they are unsuitable. In relation to the employment as an import/export clerk, the plaintiff is not qualified by education, training and experience to undertake that work, and otherwise I do not accept that he has the capacity to sustain a full working week based upon the fact that in the light work he previously did with RT David Pty Ltd he struggled to work more than five hours in one day.
38 It is unnecessary for me to breakdown the plaintiff’s income and what it is suggested he could earn in suitable employment; however, for the sake of completeness, it was agreed that the financial year ending 30 June 2013 was a year the plaintiff could rely upon as part of the loss of earning capacity comparison. In that year, he earned $97,499 gross (apparently $95,778 after deductions). It equates with a weekly gross income of $1,875. A calculation of 60 per cent of that weekly gross income is $1,125.
39 If that breakdown is compared with the income that he could earn if he was capable of undertaking any of the forms of suitable employment referred to by CoWork Pty Ltd, it is readily apparent that he can only earn a fraction of what he could previously. Again, for the sake of completeness, the income that he could earn from those forms of employment range between about $71,000 to $76,000.
40 The conclusion I have reached is that the plaintiff does not have a residual capacity which he can exercise in suitable employment beyond 16 hours per week. His hourly rate was $40 per hour. His gross income, therefore, in suitable employment was $640 gross per week. The simple comparison referred to above demonstrates that he easily meets the test for loss of earning capacity.
Conclusion
41 In the circumstances, I order that the plaintiff be given leave to bring a proceeding at common law to recover damages for both pain and suffering and loss of earning capacity.
42 I will now hear the parties on the question of costs and any other orders that are needed.
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