Cobbett v Azko Nobel
[2016] VCC 790
•15 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-02997
| JOHN COBBETT | Plaintiff |
| v | |
| AZKO NOBEL | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 May 2016 | |
DATE OF JUDGMENT: | 15 June 2016 | |
CASE MAY BE CITED AS: | Cobbett v Azko Nobel | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 790 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect of pain and suffering damages and pecuniary loss damages – injury to the spine – reliability of plaintiff as witness ‒ the plaintiff continued on restricted duties until ceased employment with defendant – limited amount of part-time work performed by the plaintiff since – capacity for employment – argument concerning whether injury was in the nature of a short-term aggravation of a pre-existing condition – impressive evidence of general practitioner – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr J Valiotis | Slater & Gordon Ltd Lawyers |
| For the Defendant | Ms R Annesley QC with Ms S Gold | Hall & Wilcox |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of both pain and suffering damages and pecuniary loss. In so doing, he relies upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. The relevant injury is to the spine, and in particular to the cervical spine – see Transcript (hereinafter referred to as “T”) 2. It is alleged that the injury occurred in a single incident which occurred on 19 March 2013 when the plaintiff was driving a forklift in the course of his employment and it dropped into a depression or hole. This shall hereinafter be described as “the accident”. It is not disputed by the defendant that the accident occurred – see T7. Essentially, the defendant argued that what occurred was in the nature of a short-term aggravation of a pre-existing condition and that the consequences of the injury satisfy neither the requirements of the Act in relation to pain and suffering nor those pertaining to economic loss.
2 Mr C Harrison QC and Mr J Valiotis of counsel appeared on behalf of the plaintiff. Ms R Annesley QC with Ms S Gold of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct. Oral evidence was also taken from Dr Paul Carter, the plaintiff’s treating general practitioner. The remainder of the evidence was documentary in nature, including surveillance material, and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, training and employment prior to the accident
3 The plaintiff is aged 55 years, he having been born on 10 November 1960. He is a married man with two adult sons by a previous marriage. The plaintiff was born in the United Kingdom, but came to Australia as an infant.
4 The plaintiff was educated to Year 12 level. Thereafter he did some labouring work, and in general terms over the years he has performed some store work, quality control work, factory work and forklift driving. He commenced employment with the defendant, a chemical manufacturing company, in July 1995. Originally, he did some work on the factory floor, including the lifting of bags of powder. However, for approximately the last 13 or 14 years of his employment with the defendant, he drove a forklift. He was engaged in this work when the accident occurred.
(b) The plaintiff as a witness
5 I note that Dr Phillip Mutton, consultant occupational physician, examining the plaintiff at the request of the defendant, described him as pleasant and co-operative. Mr David Brownbill, consultant neurosurgeon, examining the plaintiff at the request of his solicitors, described him as being alert, co-operative and appearing straightforward in his presentation without embellishment. In her closing address, Ms Annesley submitted that the plaintiff was not a reliable or consistent witness. I disagree. The plaintiff impressed me as a reliable witness. I am not of the view that the surveillance evidence damaged him in this regard. A considerable part of it showed him performing duties as a salesman in the gardening department of a Bunnings store, but there has never been any secret about the fact that he obtained part-time work at that store for a period of approximately six months. In the film that was shown to the Court, he performed no work of a strenuous nature. He did some watering of plants and the like, but the surveillance material did not impress me as damaging his credit. Indeed, as stated by his general practitioner, Dr Carter, who was a most impressive witness, the plaintiff was keen to continue with the part-time work at Bunnings and was disappointed when it came to an end.
6 In summary, I found the plaintiff to be a reliable witness and agree with the observation of Mr Brownbill that he seemed to be a person who was straightforward and described things without embellishment.
(c) The state of the plaintiff’s health prior to the accident
7 I accept that, over the years, the plaintiff had some neck and shoulder pain from time to time. On 19 November 2009, he had awoken with a stiff neck. He had been prescribed some analgesic medication. He was given a certificate for time off work. That was for one day. Physiotherapy was recommended, but he had none. On 12 September 2012, he saw the doctor concerning neck pain which he had had for a while, there having been no accident or trauma. A query was raised as to whether he had osteoarthritis. He was sent for an x-ray. He was also referred for physiotherapy. The plaintiff denied that he was thereafter bothered intermittently by neck pain. He has had bilateral elbow complaints. He has also been treated for high blood pressure, high cholesterol, a thyroid condition and a hernia. It would not seem that any spinal complaint interfered with the plaintiff’s attendance at work or capacity to engage in employment to any significant extent.
(d) The injury, its treatment and diagnosis
8 The nature of the accident has already been described. The plaintiff finished his shift, which had almost been completed when the accident occurred. When driving home, his neck became increasingly sore and stiff. He reported the matter to his employer. The plaintiff did not see a doctor until 2 April 2013, on which occasion he attended Dr Naveed Mughal of the Mill Park Super Clinic. He was referred for physiotherapy. Apparently a CT scan was carried out on 14 May 2013. The radiologist’s report was to the effect that degenerative changes were seen in the lower cervical discs. The clinical notes which were put in evidence would indicate that the plaintiff continued to attend upon Dr Mughal, making ongoing complaints concerning his cervical spine. An entry in relation to a consultation with Dr Mughal on 26 June 2013 gives the reason for the appointment as being neck pain with radiculopathy. It would seem that the plaintiff was seeing a physiotherapist twice a week at about this time, this resulting in some improvement – see T27. In any event, the plaintiff was not happy with progress and, in September 2013, saw a different general practitioner, namely Dr Richard Lunz. In the meantime, the plaintiff had lodged a WorkCover claim which had been accepted.
9 Dr Lunz referred the plaintiff for an MRI scan of the cervical spine. This was performed on 9 October 2013. The report of the radiologist refers to changes at various levels. At C4-5 there is slight reduction in disc height associated with a shallow central/right paracentral posterior disc protrusion indenting the thecal sac. There is also degenerative osteophyte formation and some minor encroachment on the C5 foramen on the right. At C5-6 there is a broad based posterior disc osteophyte ridge with reduced disc height compressing the thecal sac and almost abutting the cervical cord. Other changes of degeneration are evident. At C6-7 there is advanced disc degeneration with loss of disc height. There is a broad based posterior disc protrusion more marked on the left of the midline associated with posterior osteophyte formation and bilateral neurocentric joint degeneration. There is some subtle indentation of the left side of the cervical spinal cord and moderate encroachment on the C7 foramina. There is also a tiny non-compressive central poster disc protrusion at C7-T1.
10 In November 2013 the plaintiff suffered a flare-up of neck pain whilst driving a forklift and lodged an incident report on 28 November 2013. At various times the plaintiff was put on light duties. At one stage, after May 2013, the plaintiff developed pins and needles in the fourth and fifth fingers of his right hand, but these resolved after approximately six to eight months. Other symptoms did not – see T11. It would appear that the clinic in which Dr Lunz is based is the preferred surgery of the defendant.
11 Dr Lunz referred the plaintiff to Associate Professor Graeme Brazenor, neurosurgeon, on a date which is not entirely clear, but Associate Professor Brazenor reported back to Dr Lunz on 24 December 2013. Associate Professor Brazenor also seems to have organised a CT scan, the radiologist reporting on 16 December 2013. That investigation revealed advanced degenerative changes at C6-7 with marked loss of disc space height and large end plate osteophytes. Flexion and extension views were normal. Associate Professor Brazenor believes that the MRI of 9 October 2009 was badly reported in that osteophytes and the like were in fact at C5-6, not C6-7, referring to the CT scan. However, as I read the report of the radiologist, the CT scan of 16 December 2013 in fact confirmed what was found on the MRI in relation to the advanced degeneration at C6-7. Effectively Associate Professor Brazenor told the plaintiff to exercise and not to slouch and thought the condition should settle down. It is apparent from a short letter of Associate Professor Brazenor of 27 August 2014 that he continued to see the plaintiff off and on for a while, basically finding that there was no significant compression of neurological elements or instability. He advised against surgery or ceasing work and effectively did not accept that work had actually contributed to the degenerative changes. I might add that what seems to be a clear error in the letter of Associate Professor Brazenor of 24 December 2013 to the effect that the CT scan organised by him shows osteophytes and the like at C5-6 and not at C6-7, as reported in the MRI, tends to shake my confidence a little in his reporting. A report of the radiologist in relation to the CT scan of 16 December 2013 patently states that the relevant level is C6-7.
12 I note in the material provided from the clinic at which Dr Lunz is based is a letter of referral to Mr Jithoo who, according to the plaintiff’s earlier affidavit, is a neurosurgeon. However, instead of seeing Mr Jithoo, the plaintiff saw Dr Khurana, who recommended a continuation of conservative treatment.
13 In March 2014 the plaintiff moved to Lancefield. Thereafter, his treating general practitioner in relation to his neck problems was Dr Paul Carter, who first saw the plaintiff on 30 October 2014 and gave oral evidence. Dr Carter had supplied the solicitors for the plaintiff with two reports, these being dated 3 September 2015 and 4 May 2016. He adopted these as being accurate. In the earlier report, his diagnosis was of multilevel cervical disc pathology, with progressive deterioration likely over the years ahead. He considered the plaintiff to have no capacity for pre-injury work and as being currently capable, as at September 2015, of 15 hours’ work per week performing light duties with no lifting above 10 kilograms, no repeated bending or pushing and an ability to rest if in pain. He observed that the plaintiff remained in constant pain, requiring to take 90 or more Panadol Osteo per month.
14 In his report of 4 May 2016, Dr Carter observed that the plaintiff had attempted to re-enter the workforce working at Bunnings on a part-time basis, but that contract had expired and the plaintiff was no longer in the workforce. The plaintiff complained of neck pain radiating to his shoulders, mostly on the right, and had reported that the pain was waking him frequently at night. Dr Carter did not find evidence of cervical myelopathy. His opinion was that the plaintiff had degenerative disease of the cervical spine that may well have been longstanding, but was clearly exacerbated by the forklift incident. He stated in his report of 4 May 2016 that a conservative approach should be continued.
15 In his oral evidence, Dr Carter said that he had been the plaintiff’s regular general practitioner since October 2014. Incidentally, Dr Carter has won an award for being the Victorian rural general practitioner of the year. In any event, he saw the plaintiff approximately 90 per cent of the times that he attended the practice. Dr Carter was absent on a few occasions and is now not in full-time practice, so that on occasions the plaintiff has seen other doctors.. Originally, the plaintiff had said to Dr Carter that, at the end of his shift at Bunnings, he experienced an increase in neck pain, but he was very keen to continue that work and was encouraged so to do by Dr Carter – see T94. Between October 2014 and September 2015, Dr Carter had certified the plaintiff as being fit for alternative duties. He certified the plaintiff as being fit for driving a forklift one hour on and one hour off, lifting no more than 10 kilos, resting if in pain and, in later certificates, stating that the plaintiff was not to do any work with his head hung forward. At that time, Dr Carter was only considering work with which the plaintiff was familiar, but was certifying him to do that work in a very restricted fashion. He did not believe that the plaintiff was a good candidate for retraining and thought that it would require the making of a lot of effort in order to help him to create a new work environment in which he would be successful. Dr Carter observed that the plaintiff had been working for the defendant for many, many years. He did not agree with the plaintiff having been certified by a colleague for a disability pension, as he considered that that was not the way that the plaintiff should be managed and treated.
16 Dr Carter was not aware of the plaintiff having any separate shoulder condition, but there had been complaints by him of his neck pain radiating into the shoulders. When the plaintiff went to work on a part-time basis at Bunnings, Dr Carter was worried that he would be asked to pick up heavy pots or reach to high shelves and, accordingly, put restrictions in place to safeguard him. A limit of 10 kilos was continued. In relation to the plaintiff possibly working more hours, Dr Carter stated that, at the end of his shifts, the plaintiff was feeling sore, but it was considered that, in terms of his mental health, working for that number of hours (15 per week) was appropriate and not exacerbating his condition “too badly” – see T101.
17 Essentially, Dr Carter stated that the plaintiff’s condition required him to reduce his working capacity from full-time to 15 hours per week and since then his condition has remained much the same. He was not of the view that the plaintiff had a capacity for full-time work. If the plaintiff re-entered the workforce, Dr Carter said that he would certify him as being suitable for 15 hours per week, because that was proven to be what he could manage. He said that the restrictions that he had placed on the certificates had been “completely clinically appropriate throughout. And if he returned into the workforce, I would … most definitely make hourly restrictions for him” – see T104. Dr Carter considered that sedentary-type work would be a big problem. This was because of the pain increase with neck flexion and Dr Carter’s belief that sedentary work might well involve desk work, “which would be very much against his clinical interests” – also see T104. When Ms Annesley put to Dr Carter a particular type of work as a logistics or general clerk in a distribution business, Dr Carter said that he would discuss such a proposition with the plaintiff and go and do a vocational assessment of it. However, if he was satisfied with all the conditions, it would start as a part-time proposition and “we would just have to monitor progress as it went” – see T106. In answer to a question of mine in this regard, which related to the fact that the job description that had been put to him included, as read out by Ms Annesley, that 90 to 95 per cent of the workday would be occupied with computer tasks, Dr Carter observed that, if the overwhelming bulk of the day involved work at the computer, it was “very much” something that would have to be monitored.
18 The plaintiff has also been examined for medico-legal purposes. Mr David Brownbill, consultant neurosurgeon, saw the plaintiff at the request of his solicitors on 19 October 2015. Mr Brownbill noted that the plaintiff was taking six tablets of Panadol Osteo daily. He took a history of neck pain situated low to both sides at the back, this pain being present all the time with fluctuations. It had improved a little, but then plateaued. The plaintiff stated that right shoulder pain “comes and goes”.
19 Mr Brownbill considered the radiological reports. He also viewed the films, indicating that he agreed with what was contained in those reports. He diagnosed aggravation of pre-existing asymptomatic degenerative changes, but without neurological abnormality. He considered that the pain would continue in a fluctuating manner indefinitely. Mr Brownbill was of the view that the plaintiff would have to avoid activities involving heavy lifting, forced cervical spine mobility or holding his neck in a fixed position. He would be prevented from returning to forklift driving or to manual labouring type employment in general. At the time that Mr Brownbill saw him, the plaintiff was working at Bunnings. Mr Brownbill noted that the plaintiff was working 15 hours a week performing plant-watering and avoiding the type of activities mentioned above. Mr Brownbill considered that occupation appropriate from a neurosurgical point of view.
20 He considered the plaintiff’s condition to be stabilised. His employment incapacity will continue for the foreseeable future. Mr Brownbill thought the plaintiff to be permanently incapacitated in relation to his pre-injury duties and placed restrictions upon the type of employment that might be suitable. He also observed that the number of hours which the plaintiff could work would be dictated by his responses. Similar restrictions would apply to the plaintiff’s social, domestic and recreational activities.
21 The plaintiff’s solicitors also organised for him to be seen by Dr Helen Sutcliffe, occupational physician, who reported on 12 October 2015. It is noted that this was shortly before the plaintiff commenced to work at Bunnings. The plaintiff told Dr Sutcliffe that, when his physiotherapy treatment ceased on the advice of Mr Brazenor, his pain rapidly increased in intensity. The plaintiff was taking Panadol Osteo, eight a day, and also anti-inflammatory medication. He informed Dr Sutcliffe that the pain was waking him at night many times, and assessed its intensity at 7.5 to 8 out of 10. He described various other restrictions that he had in relation to walking, sitting, standing and the like.
22 Dr Sutcliffe diagnosed aggravation of degenerative changes in the cervical spine as a result of the accident. She expressed the view that the plaintiff had no capacity for his pre-injury occupation of forklift driver and storeperson, and that the situation would continue into the foreseeable future. Indeed, she said that the plaintiff had no capacity to work as a driver of any nature, either now or into the future. He also had no capacity to perform manual handling occupations, and this was a permanent situation. Dr Sutcliffe considered that a trial of the employment at Bunnings for five hours per day, three days a week, was appropriate, but had some concerns that any prolonged standing could be beyond the plaintiff’s capacity. Overall, she thought it more likely than not that the plaintiff had no capacity for suitable employment and that this situation would continue into the foreseeable future.
23 The defendant has also had the plaintiff examined. He was seen by Mr Michael Shannon, orthopaedic surgeon, on 13 October 2014. It is stated in the report of Mr Shannon that the purpose of the examination was to provide an impairment assessment according to the AMA Guides for an accepted injury to the cervical spine. The diagnosis of Mr Shannon was of aggravation of pre-existing cervical disc degeneration. The prognosis was for ongoing discomfort and stiffness in the neck.
24 Mr Shannon noted a prior history of stiffness in both shoulders over a lengthy period. Mr Shannon considered that the plaintiff’s condition and impairment had stabilised. He was prepared to make an assessment accordingly, an ingredient of which is permanence. Mr Shannon gave no particular attention to capacity for suitable employment.
25 Dr Philip Mutton, consultant occupational physician, originally saw the plaintiff on 27 November 2013. He recorded a history essentially consistent with that given to other medical practitioners and set out above. He noted that the plaintiff was constantly in pain, which was worse with activity. Dr Mutton noted that the radiology provided evidence of significant degenerative changes. At this time, the plaintiff was still employed by the defendant and working on modified duties.
26 Dr Mutton expressed the view that the plaintiff required ongoing restrictions in terms of his forklift work. He also felt that the plaintiff had an ongoing requirement for analgesia and anti-inflammatories. Dr Mutton’s diagnosis was of the aggravation of quite significant degenerative changes in the cervical spine. Whilst it had resolved to some extent, the plaintiff still had a range of symptoms. Whilst further improvement was possible, there might be further stabilisation. Any recovery might plateau. Dr Mutton thought it not surprising that the plaintiff’s recovery had been slow. He felt that further review would be necessary.
27 Dr Mutton provided three further supplementary reports without again seeing the plaintiff. The earliest of these is dated 14 February 2014. In this report, he expressed the view that the plaintiff would require ongoing treatment and that the plaintiff’s capacity to remain at work would be affected or reduced if his current remedial exercise treatment was ceased. It is apparent that the plaintiff at this time was having remedial massage. In the second supplementary report of 28 March 2014, Dr Mutton expressed the opinion that the need for remedial massage was highly dependent on the level of symptoms, and suggested a re‑examination. Neither of these brief reports take matters much further. A further brief report of 17 April 2014 is of no great relevance. As these reports of Dr Mutton were compiled at a time when the plaintiff was still working for the defendant, to some extent they have been overtaken by events. From an occupational viewpoint, there is a limit to their utility.
28 Dr Mutton saw the plaintiff again on 19 January 2016. The plaintiff informed Dr Mutton that his last working day with the defendant had been 10 April 2014. He said that, due to the pain in his neck and what he was suffering, he had become increasingly aggressive and had some issues with a supervisor. He was currently working 15 hours per week, three days per week at Bunnings. He had apparently found this employment through a disability employment agency. He was on a fixed contract which was due to expire on 28 February 2016. Otherwise, he was on a disability support pension. He had been assessed in December 2015 as having a maximum working capacity of 12 hours per week.
29 The plaintiff described to Dr Mutton pain on a daily basis, worsening towards the end of the working day. He was limited in relation to walking and restricted to 15 minutes on the computer. He also informed Dr Mutton that he woke three to four times a night. Dr Mutton formed the view that the plaintiff’s symptoms were largely localised to the right side of the neck. He also reported that the plaintiff had said that the work at Bunnings for 15 hours per week was the maximum which he could undertake and he was quite sore at the end of the working day. Dr Mutton diagnosed mild cervical spondylosis. The plaintiff would not be able to return to his pre-injury duties as a forklift driver and did not feel that he could do more work than that which he was performing at Bunnings.
30 Dr Mutton had available to him a vocational assessment report. One of the suggested vocational options was as a retail sales assistant dealing with hardware and building supplies. Dr Mutton expressed the view that the plaintiff’s condition would be aggravated if he engaged in repetitive neck movement or maintained a fixed posture. Heavy lifting would also aggravate the condition. If he worked as a retail sales assistant, he should not lift more than 2-5 kilograms. Dr Mutton felt that the plaintiff would be able to work as a transport logistics clerk, but his tasks should be varied during the course of the working day. He expressed some uncertainty as to whether the plaintiff could work as a retail or rental sales person, effectively needing more details. He did not feel that the x-ray changes evident from the radiological reports were greater than would be expected of somebody of the plaintiff’s age. This is an interesting observation, as, in his initial report, Dr Mutton described the plaintiff as having evidence of “significant degenerative changes on CT and MRI”, and indeed subsequently referring to them as “quite significant degenerative changes”.
31 Dr Mutton provided a further supplementary report of 11 February 2016. He had not seen the plaintiff again. In essence, he stated that the plaintiff’s shoulder conditions were separate from the neck condition and attributable to a separate cause. He pointed out that, in assessing the plaintiff’s capacity for the jobs identified in the vocational assessment report, he had considered only the neck condition. He repeated that the plaintiff was capable of undertaking the tasks identified in the vocational assessment report on a full-time basis, but that this would require a graduated increase in hours and should be monitored closely.
32 That concludes my summary of the medical material. On the basis of it, I am of the view that the injury suffered by the plaintiff is the aggravation of pre-existing degenerative changes in the cervical spine. Essentially, I accept the opinion of Mr Brownbill that these are longstanding and at multiple levels.
33 Thus, the injury is in the nature of an aggravation. I accept the opinion of Mr Brownbill and others that the degenerative changes had previously been asymptomatic and were rendered symptomatic by the accident. Thus, the symptoms and consequences of injury from which the plaintiff suffers arise directly from the accident.
34 I accept that the consequences which the plaintiff has suffered are permanent within the meaning of the definition. Mr Shannon made an impairment assessment pursuant to the AMA Guides, permanence being an ingredient of such assessment. In addition, he expressed the view that the plaintiff’s condition and impairment had stabilised. Mr Brownbill was of a similar view, in addition to expressing the opinion that pain would continue in a fluctuating manner indefinitely. Dr Sutcliffe stated that, for example, the plaintiff’s incapacity to work as a forklift driver, or indeed a driver of any nature, would continue into the foreseeable future. She also expressed a belief that the plaintiff was more likely than not to have no capacity for suitable employment and that this situation would continue similarly. Dr Carter, in his report of 3 September 2015, answered a question as to any long-term deterioration in the plaintiff’s condition. He expressed the opinion that it was most likely that there would be deterioration with increasing pain and loss of movement. I am of the opinion that permanence within the meaning of the definition has been established.
35 It was not argued with any vigour, if at all, that there are psychological or psychiatric consequences of the injury. Of course, pursuant to s134AB(38)(h) of the Act, any such consequences are not to be taken into account in applications such as this. No reports from any psychiatrist, psychologist or the like were placed before me. The impression created by the plaintiff in the witness box was not of someone suffering from any psychological or psychiatric condition. Any such consequences which he does suffer will not be taken into account, but, if they exist at all, they are minimal.
Other developments since the accident
36 In August 2013, the plaintiff lodged a WorkCover claim which was accepted. In November 2013, he suffered a flare-up of neck pain whilst driving a forklift. As stated, he continued working with the defendant on restricted duties and with limited forklift driving. In April 2014, he resigned. I accept that, as sworn in his affidavit of 19 February 2015, he was struggling to cope physically. He was getting angry and aggressive at work because of his pain. The only work he has done since involved the six month contract with Bunnings in their gardening section where he watered plants and the like. He has been placed on a disability pension, and has described the work program at Bunnings as having been obtained through a disability agency.
37 By reason of contacts established through former workmates, the plaintiff visited The Philippines for a six week holiday shortly after resigning. It was there that he met a lady whom he ultimately married on 12 March this year, having been separated and divorced from his former wife for some time. Prior to marrying his current wife, he made some additional four trips to The Philippines over the last two and a quarter years.
Ruling
(a) Pecuniary loss damages
38 I am satisfied that the plaintiff has discharged the burden of proof and is entitled to leave to pursue pecuniary loss damages.
39 I am satisfied that the plaintiff’s capacity for employment is limited to the type of work that he was performing at Bunnings and for the number of hours per week that he was working at that establishment. Even that work apparently was obtained through a disability agency, which agency seems to have catered for recipients of the disability pension. Some video material of the plaintiff performing his work at Bunnings was shown. I might say that it seemed to me to be very light work indeed, involving the use of a hose of modest proportions. The plaintiff effectively wandered through rows of plants doing some watering. On one occasion he carried a plant in a pot. Nothing that the plaintiff did appeared to me to be strenuous or beyond the type of limitations put upon his activities by Dr Carter.
40 As earlier stated, the plaintiff is a reliable witness. Bearing this and other matters in mind, I accept that what he said in re-examination concerning the effect of the work at Bunnings upon him was accurate. At T82, the plaintiff was asked how he “pulled up” after the third 5‑hour shift of his 15‑hour working week. His answer was that he was very sore and it took him days to recover.
41 I also accept that about 15 minutes working on the computer is his limit. He believes that if he spent 90-95 per cent of the working day occupied with computer tasks, he would be in a lot of pain. He also explained the difficulties that he would have with things such as stocktakes, working as a retail or rental sales person and the like.
42 In other words, I accept that the type of work which he performed at Bunnings was suitable for a person with his disability and that five hours per day, three days per week represents the maximum period for which the plaintiff can do such work.
43 In any event, I am not satisfied that the employment options contained in the Recovre Vocational Assessment Report of 7 December 2015 represent suitable employment. Those vocational options were of a retail sales assistant, a transport and logistics clerk or a rental sales person. The plaintiff may have worked for a couple of years as an inventory control clerk, but that was in excess of 30 years ago. Prior to that, he had been a storeman and forklift driver. Of course, with the defendant, he worked for some 19 years as a storeman and forklift driver. I accept his evidence in relation to the difficulties which he believes he would encounter if he attempted to engage in the work options referred to above.
44 In coming to the conclusion that the plaintiff’s maximum “after injury” capacity is that set out above, I have borne in mind several matters. Firstly, I accept the sworn evidence of the plaintiff that, when performing the work at Bunnings, by the conclusion of the third shift for the week he found himself to be “incredibly tired and in a significant amount of pain where it took me several days to recover” ‒ see his affidavit of 11 May 2016. I accept his evidence generally in relation to his capacity for employment and to the work which he performed at Bunnings. As previously stated, I regard him as a reliable witness – one who is straightforward and describes things without embellishment.
45 Next, I have remarked more than once as to how impressive a witness was Dr Carter. He has sworn that his certification as to work capacity has been completely clinically appropriate throughout. That certification limits the plaintiff to 15 hours’ work per week and with restrictions applied. Thirdly, I note the restrictions placed upon the plaintiff’s working capacity by Mr Brownbill, consultant neurosurgeon, and the comment, made at a time when the plaintiff was working 15 hours per week at Bunnings, that such occupation was appropriate for him from a neurosurgical point of view.
46 When all of these matters are taken into account, it seems to me that the type of work being performed at Bunnings for five hours per day, three days per week, represents the plaintiff’s maximum “after injury” working capacity.
47 I turn now to the calculation of the “after injury” earnings. The submissions on behalf of the plaintiff include that his earnings at Bunnings were at the rate of $24 per hour, which, for a 15 hour week, is $360 per week. This was not challenged. It converts into a gross weekly payment of $360 or $18,720 per annum. Even if one took the highest paid of the positions suggested by Recovre (being that of a logistics clerk) and allowed a 20 hour working week, as opposed to the 15 hour week which I found to be appropriate, the gross annual income would be $28,272. For a 25 hour week, the gross annual income would be $33,339.
48 In relation to the “without injury” earnings, if one took the 2013 financial year as representing the appropriate figure, the amount involved is gross $61,557. I appreciate that the figure for the 2014 financial year is greater, but the plaintiff resigned in April 2014 and such matters as termination benefits may be involved. I am also leaving to one side increases calculated in accordance with the consumer price index for the financial years between 2014 and 2016. In any event, it seems to me that the figure of $61,557 is appropriate as being the figure which most fairly reflects the plaintiff’s earning capacity had the injury not occurred. Sixty per cent of that figure is $36,934.
49 Thus, it can be seen that, even if it were to be considered that the plaintiff could work as a logistics clerk for 25 hours per week, there would be a financial loss in excess of 40 per cent. In fact, as stated, I accept that the plaintiff’s capacity is limited to 15 hours per week in employment of the type provided by Bunnings. This produces a financial loss well in excess of 40 per cent.
50 In summary, the plaintiff has satisfied the statutory requirements found in s134AB(38)(e) and (f). I am also satisfied that he has satisfied the requirements of s134AB(38)(b) and (c) in that the loss of earning capacity suffered by him is, after the appropriate comparison is made, fairly described as being more than significant or marked and as being at least very considerable. The plaintiff is aged 55 years and has lost in excess of 40 per cent of his earning capacity for the foreseeable future. He could well have worked on in the occupation in which he had been involved for many years through to age 65 or beyond.
(b) Pain and suffering damages
51 The plaintiff having discharged the burden of proof in relation to pecuniary loss damages, the requirements of the Act have also been satisfied in relation to pain and suffering damages ‒ see the decision of the Court of Appeal in Advanced Wire and Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and various decisions of this Court.
52 I might say that, in any event, the plaintiff would seem to me to have established that his pain and suffering consequences are more than significant or marked and are at least very considerable. Both of the affidavits refer to the problems which he has in relation to sleep. His neck pain is exacerbated or aggravated by upper body movements. He feels “incredibly tired and fatigued “as a result of the interference to his sleep” ‒ see his affidavit of 11 May 2016. When working at Bunnings, he found he was exhausted at the completion of a five hour working day. Reaching above his head and neck is painful. There has been interference with leisure activities. As recorded by Dr Carter, the plaintiff remains in constant pain, requiring that he take 90 or more Panadol Osteo per month. He has also been removed from an occupation in which he worked for many years.
53 In conclusion, the plaintiff is successful. He has discharged the burden of proof. Leave is granted to him to bring proceedings in relation to both pecuniary loss damages and pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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