Columbine v Woolworths Limited
[2014] VCC 88
•18 February 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00473
| PATRICIA COLUMBINE | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 February 2014 | |
DATE OF JUDGMENT: | 18 February 2014 | |
CASE MAY BE CITED AS: | Columbine v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 88 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – right shoulder injury – pain and suffering damages certificate conceded – loss of earning capacity disputed – whether plaintiff can do further alternative duties – whether injury satisfies the threshold test for loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: Plaintiff granted leave to bring a claim for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell SC with Ms M Pilipasidis | Maurice Blackburn Lawyers |
| For the Defendant | Mr A W Middleton | Sparke Helmore Lawyers |
HIS HONOUR:
1 This application is brought by Originating Motion filed on 5 February 2013 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment with the defendant between October and November 2008.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity damages. Immediately prior to the commencement of the hearing in this application, the defendant conceded that the plaintiff have leave to bring proceedings for pain and suffering damages only. The application proceeded on the basis that the only issue in dispute between the parties was whether or not the plaintiff be granted leave to recover damages for loss of earning capacity as a result of the injury to her right shoulder.
3 The plaintiff alleges that in the course of her employment with the defendant between October and 21 November 2008, she suffered injury to her right shoulder.
4 The following evidence was adduced or tendered during the hearing:
· the plaintiff gave evidence and was cross-examined
· the defendant tendered the following documents: Exhibit A, the Plaintiff’s Court Book (“PCB”), pages 8–15e and pages 19–106 inclusive
· the defendant tendered the following documents: Exhibit 1, the Defendant’s Court Book (“DCB”), pages 5–93, and Exhibit 2, surveillance film for 27 April 2013.
5 This application is brought under the definition of “serious injury” contained in ss37(a) of the Act, which requires the plaintiff to prove that she has suffered a permanent serious impairment or loss of body function. The loss of the body function in this case is to the right shoulder.
6 Mr Middleton, on behalf of the defendant, identified the issue in this application as being the loss of earning capacity for the plaintiff as a result of the loss of body function to her right shoulder. The first issue is, pursuant to s134AB(38)(e) and (f), whether the plaintiff has a loss of earning capacity of 40 per cent or more when measured comparing the gross income she is capable of earning in suitable employment as against the income she was earning from personal exertion or capable of earning in the three years before and the three years after as most fairly reflects her earning capacity.
7 The second sub-issue is whether the loss of earning capacity is permanent.
8 The third issue is whether the permanency and the amount of the reduction in the earning capacity is assessed after the plaintiff has completed rehabilitation and training, taking into account the reasonableness of the plaintiff’s attempt to participate in rehabilitation and retraining.
The statutory scheme
9 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
10 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of the course of her employment on or after 20 October 1999;[1]
[1]Section 134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
11 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
12 The plaintiff was born in January 1962. She is now fifty-two years old. The plaintiff is a married woman with three adult children who are independent.[3]
[3]PCB 8
13 The plaintiff completed Year 11 at TAFE. At the completion of her formal education, the plaintiff initially worked as a junior receptionist for a general surgeon. This job was only for three months. Subsequent to that time the plaintiff has worked in various process working or store positions. She has been employed by Yazaki Pty Ltd for one year. She spent three years in the employ of Puma and three years in the employ of Adidas. The plaintiff had also worked at Bata Shoes. The plaintiff then worked as a waitress/kitchen-hand for several years.
14 On 24 January 2000, the plaintiff commenced work with the defendant at their distribution centre in Mulgrave. Her role there was as a storeperson. Her job involved despatch, receiving merchandise, picking and packing and loading merchandise for delivery to stores.[4]
[4]PCB 9, paragraph 7
Injury with the Defendant
15 The plaintiff described her injury in her affidavit dated 21 August 2012 in the following terms:
“I recall in or about October 2008 I was given the job loading and despatch which I performed every day for about 6 weeks. The job was not rotated. Then on or about the 21st November 2008 I experienced soreness in my right shoulder. I was having difficulties lifting my arm because of pain and I reported the injury. I reported the incident on the 28th November 2008 and I was taken by the Workcover co-ordinator, Robert Goatley to the local medical clinic where I was seen by Dr Jonathan Levy who told me that I had sustained a strain to my right shoulder. I was placed on light duties and he arranged for me to have an ultrasound on the 2nd December 2008.”[5]
[5]PCB 9, paragraph 9
16 The plaintiff is alleging that the injury occurred as a result of the defendant failing to rotate her role and activities at work. The defendant does not dispute the fact that the plaintiff was injured as a result of her employment. The plaintiff ultimately ceased her employment with the defendant on 22 June 2010.[6]
[6]PCB 12
Medical treatment
17 The plaintiff has, in summary, received the following medical interventions as part of her treatment:
· On 5 January 2009, the plaintiff received an ultrasound-guided injection to her right shoulder[7]
[7]PCB 19
· On 11 December 2009, Mr Wearne, surgeon, recommended a hydrodilatation of the right shoulder[8]
[8]PCB 11
· On 21 January 2010, the plaintiff underwent a hydrodilatation procedure to her right shoulder
· On 25 February 2010, the plaintiff received cortisone injections into the right shoulder joint[9]
[9]PCB 11
· On 23 June 2010, the plaintiff underwent surgery at the hands of Mr Broughton, orthopaedic surgeon. The operative diagnosis was SLAP lesion and rotator cuff tendinitis in the right shoulder. Mr Broughton performed a right shoulder arthroscopic stabilisation and subacromial decompression combined with a repair to the SLAP lesion.[10]
· On 13 August 2010, the plaintiff was injected to the right shoulder with cortisone.
· On 21 October 2010, the plaintiff returned to Mr Nigel Broughton, orthopaedic surgeon. The diagnosis on this occasion was adhesive capsulitis to the right shoulder. The operation performed was a right shoulder arthroscopy synovectomy and soft tissue release and division of contracture.[11]
[10]PCB 42
[11]PCB 43
18 The plaintiff has subsequently been treated with injections to the right shoulder, hydrotherapy and physiotherapy. She currently takes oral medication for pain relief and wears Norspan patches. Her ongoing treatment is otherwise conservative and controlled by her general practitioner, Dr Bien.
19 The plaintiff has, over a period of time, suffered from of depression. She is prescribed Cymbalta medication to treat the symptoms of her diagnosed depression. I have disregarded the references in the materials tendered in this case in respect of the psychological/psychiatric conditions suffered by the plaintiff. They were not relied upon by either party and are irrelevant to the considerations of this serious injury application.
Consequences of the right shoulder injury to the Plaintiff
20 The first and most significant consequence for the plaintiff is that she suffers and continues to suffer pain in her right shoulder. This pain in the shoulder is more marked after she has been at her place of work or involved in physical activities involving the movement of her right arm and shoulder. As a result of her pain, the plaintiff is currently being treated with Norspan patches, 10-milligrams daily, and intermittent use of Panadeine Forte tablets, ranging between four and eight tablets per week.
21 The pain that the plaintiff is suffering also interferes with her sleep and she has given evidence and complains of being tired after experiencing that pain. The interruption to her sleep impacts upon her ability to properly enjoy her life and/or attend to the work that she currently performs.
22 One of the main complaints as a result of the injury to her right shoulder is that the plaintiff lacks mobility and full range of movement in her right dominant arm. This is deposed to in her affidavits and in her evidence. The medical practitioners who have examined and measured the range of movement for the plaintiff all agree that she has a marked restriction of movement in her right shoulder when compared to her left shoulder, which has a full range of movement. This lack of range of movement in her right dominant arm impacts upon her capacity to work and to enjoy her life.
23 The plaintiff has given evidence, and I accept that she suffers from an impact on her activities of daily living as a result of her right shoulder injury. The two obvious examples that she gave during the course of her evidence and in her affidavit are that she has a limitation in respect of her personal care. In particular, she has cut her hair short so that she does not have to attend to the proper grooming of her long hair. The other complaint she had was in respect of hanging washing up on a clothes line, because it involves the use of her right arm over her shoulder level which is very painful and indeed limited. As a result of her injury to her right shoulder, the plaintiff no longer involves herself in her previous activity of swimming and/or ten-pin bowling.
24 The most significant impact on the plaintiff is that she can now no longer work full time. The evidence from the plaintiff is that she has resumed employment in a call centre environment for 21.5 hours per week. Her evidence is, and I accept, she has obtained approval for two computer courses and has upskilled herself to be able to perform the task of a call centre operator. The plaintiff attended the two computer courses, the first in time being a basic computer course, the second in time being a word processing course. She now utilises the knowledge and skills she has obtained in those courses to work in a call centre environment taking orders and placing bookings for the Drytron Carpet Cleaning business. Coincidentally, her husband works for a franchisee of that same company.
25 The plaintiff has made arrangements to work alternate days and a half day on Friday. The reason for the alternate days, according to the plaintiff’s evidence, is that she needs a rest day in between the workdays so that she can continue with her employment. She gave evidence, and I accept that she is an honest witness in this regard, that as a result of her work she does suffer pain in her right arm and that does interrupt her sleep on the days that she has worked. The plaintiff continues with the painkilling medication, which is opiate based, to manage the pain symptoms in her right shoulder and arm.
26 I accept the plaintiff is an honest and accurate historian in respect of her symptoms and the impact of this right shoulder injury on her life. In particular, I accept that she has done all that could be required of her by way of retraining and rehabilitation to get herself back to the call centre work. This work is a completely different area of work from her prior long-term employment history. I accept that despite the levels of pain that the plaintiff is continuing to suffer, she nevertheless does her best to work to the limit of her physical capacities. I accept she can only work a total of 21.5 hours over three days at her call centre job.
Loss of earning capacity
27 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, she must establish that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
28 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(c) “without injury” earnings; and
(d) “after injury” earnings.
29 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning, or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
30 The plaintiff has the onus of proving that she has suffered a 40 per cent loss of earning capacity as a result of the injury in the course of her employment and that such loss is for the foreseeable future.
31 The plaintiff continued on with her work after the initial incident in October/November 2008 with light duties at the defendant’s place of employment. During that period of time, she received various medical interventions which have been previously referred to in these reasons. However, she has not been back to the defendant’s place of work since ceasing at the time of her first surgery on 22 June 2010.[12]
[12]PCB 12
32 The relevant three-year period for the purposes of assessing “without injury” earnings is the three-year period prior to the plaintiff ceasing to work for the defendant, even on the basis of light duties. The years that are relevant are the taxation years ending 30 June 2008, 2009 and 2010. In the taxation year ending on 30 June 2010, the plaintiff achieved a gross income of $62,710. This gross annual figure reduces to a gross weekly wage of $1,205. The 60 per cent portion of the “without injury” earnings is $723 gross per week.
33 Mr Mighell, on behalf of the plaintiff, urged upon the Court that the appropriate figure for the assessment of the “without injury” earnings was a gross annual figure of $67,327. His submission in this regard was based on the figures set out at Plaintiff’s Court Book 66 in the report of Ms Kaye Angel dated 17 December 2013. I find that the appropriate figure for the assessment of the “without injury” earnings is the income that the plaintiff was able to achieve in the period prior to her ceasing work in June of 2010.
34 In the period of time since June 2010, the plaintiff has undergone two surgical interventions in the latter part of 2010. The plaintiff has, after a long period of rehabilitation by way of physiotherapy and hydrotherapy, attempted to re-skill herself and re-enter the workforce. In the course of her rehabilitation, the plaintiff, under the auspices of Nabenet, undertook some vocational training. She completed two computer courses, both of eight weeks’ duration. The first course was an introduction to computers and the second course was Microsoft Word course.[13]
[13]PCB 13
35 I accept the plaintiff’s evidence that she made considerable efforts to obtain employment. She stated in her evidence that she had made approximately 60 applications for employment that were unsuccessful. Finally, the plaintiff obtained employment on 10 July 2012 with Drytron Carpet Cleaning as a call centre operator. Her employment is part-time work. The total hours per week are 21.5 hours. Her work pattern is Mondays, Wednesdays and a half day on Friday. I accept the plaintiff’s evidence that the work is structured so that she has a rest day after each employment day. The plaintiff’s evidence is that as a result of this employment, she receives $18 per hour for the 21.5 hours. The after injuries earnings are $387 gross per week.[14]
[14]PCB 15c
36 The plaintiff, in her evidence, stated that in the period running up to Christmas 2013, her manager at her place of work had been ill. The manager passed away shortly prior to Christmas. In that period, the plaintiff was asked to do some additional work which included Thursday and a full day on Friday. In effect, the plaintiff was working a full four-day week. She stated that as a result of that additional work, she had increased her medication to two to four Panadeine Forte per night on top of the Norspan patches. Her evidence was that she was unable to continue to work at that current rate. The plaintiff’s general practitioner, Dr Chia Bien, has certified that the plaintiff is only suitable for light duties with restrictions to the use of her right arm with no repetitive duties. He has certified the plaintiff suitable for work for 21.5 hours per week in an office-type of environment.[15]
[15]PCB 103
37 At the end of this extra work that the plaintiff was asked to perform in the period immediately before Christmas and subsequent to Christmas of 2013, she has been additionally prescribed Valium to deal with increasing cramps and spasms in her right arm. She gave evidence that she sparingly uses the Valium and is trying to the do the same with her medications for pain.
38 In this regard, I accept the plaintiff’s evidence that she was prepared to increase her hours of employment and has endeavoured to do so. As a result of the increase in hours of employment, the plaintiff has suffered increased symptoms of pain with the additional symptoms of cramps and spasms at night in her right arm. I accept that the plaintiff is working to the limit of her current physical condition at 21.5 hours per week. The conclusion, therefore, is that she is limited to her “after injury” work of a figure of $387 gross per week unless the rate of pay increases for her.
Medical opinions
39 The relevant medical evidence on the question of the plaintiff’s ability to engage in employment with her current physical condition is as follows.
(a) Dr Chia Bien
40 Dr Chia Bien is the plaintiff’s general practitioner. He has been her general practitioner throughout the whole of this injury cycle for the plaintiff. In his report dated 27 January 2014, he states:
“Currently, she is working part time at a call centre. Her work involves her answering phones and working on a computer. She is just coping with her current situation of 21.5 hours per week. I have been providing her with work certificates to restrict her to light duties only. She should restrict usage of her right arm. Office type work is ideal for her. Even so, Patricia is often sore at the end of a working day and takes analgesics for it. Hence, I do not believe that she is capable of working more than 21.5 hours per week without aggravating her condition.
To her credit, I believe it was through her own initiative that she managed to find her current employment in mid-2012.
Her right shoulder injury appears unlikely to improve in the foreseeable future.”[16]
[16]PCB 33
(b) Mr Michael Fogarty
41 Mr Michael Fogarty, orthopaedic surgeon, saw the plaintiff for medico-legal purposes. He prepared a report dated 27 November 2013. In that report, he gave the following opinion:
“a) Diagnosis: Lesion in the glenoid labrum of the right shoulder associated with some tendinopathic change at the incision of supraspinatus. After repair of the glenoid tear adhesive capsulitis of the right shoulder set in despite treatment by hydrodilatation has been persistent loss of range of motion in the right shoulder.
b) The diagnosed injury is consistent with the stated cause.
c) The restrictions imposed upon your client by reason of this diagnosed injury are that she is unable to use her right arm for repetitive activities nor any significant lifting.
d) My opinion regarding the identified restrictions is that these can be considered as being permanent.
e) In my opinion your client is not fit for unrestricted work. However she is working part-time at restricted work not involving the repetitive activities with her right arm nor any lifting.
f) Having regard to your client’s instructions I am of the opinion that her current working hours represent her maximum work capacity.
g) The prognosis for your client’s condition is fair only considering that it is now five years since sustaining the injury and three years since operative treatment on her right shoulder. It is highly unlikely that there will be any improvement in her range of movement or pain. I think the limitations will persist for the foreseeable future.”[17]
[17]PCB 58
42 Mr Fogarty clearly is of the opinion that the plaintiff is doing as much as she can possibly do given the restrictions that he has observed and accepted. Mr Fogarty clearly sees this condition as being permanent.
(c) Dr Helen Sutcliffe
43 Dr Sutcliffe, occupational physician, saw the plaintiff for medico-legal purposes and prepared a report dated 20 December 2013. Dr Sutcliffe is the only medical practitioner that made the observation that the plaintiff’s circumference of the right arm was 2 centimetres less than the circumference of the left arm at an equivalent position. Other than that difference in her observations, Dr Sutcliffe has made the same examination and conclusions as the other medical practitioners in this case. On the question of the plaintiff’s ability to work with her given physical difficulties, Dr Sutcliffe opined as follows:
“Taking into account the findings on examination with reduction in hand grip strength and reduction in muscle bulk in the right upper limb despite working together with the description of duties performed and the intensity of pain experienced I believe that Ms Columbine cannot increase her hours of work past the current duties of 21.5 hours a week.
Thus 21.5 hours of work are the maximum she can perform taking into account the extent of the injury, the limitations of capacity and the difficulty she currently experiences in maintaining her current hours of work. I also take into account the medication provided with moderate does of opioid medication and also the difficulty with sleep and concentration as a result.”[18]
[18]PCB 76
44 Dr Sutcliffe goes on to say that the restrictions for the plaintiff are permanent.
(d) Associate Professor Anthony Buzzard
45 Professor Buzzard, general surgeon, assessed the plaintiff on behalf of the defendant’s lawyers on two separate occasions. He prepared two reports dated 17 May 2012 and 22 May 2012. Professor Buzzard’s opinion in respect of the plaintiff’s employment was as follows:
“So far as her employment capacity is concerned, I draw your attention to the fact that she has now returned to work but is working at Drytron 21.5 hours per week as a call centre operator. On specifically questioning her about this she does have some difficulty because of problems in reaching the phone apparatus desk which is not set up for her. I think that she could carry out this work on a full time basis if the desk was appropriately set up for her. I do draw your attention to the fact that she is now employed on a “fill in” basis only.”[19]
[19]DCB 16
46 Professor Buzzard stated that he could find no evidence of any voluntary exaggeration of symptoms or restrictions by the plaintiff.[20] At the time of Professor Buzzard’s last assessment in May of 2013, the plaintiff was taking Panadeine Forte, averaging four per week, and Endone, averaging one or two per month. He was of the view that pain relief medication was appropriate.[21]
[20]DCB 18
[21]DCB 20
47 I accept the plaintiff’s evidence that she has gone on to increase her “fill-in hours” after her assessment by Professor Buzzard. I accept that having increased her hours, that she was unable to tolerate the increase in hours and therefore is unable to work the full-time alternate duties suggested by Professor Buzzard. Professor Buzzard has accepted her as a genuine person and I think that assessment by him is correct.
48 I note by way of completeness that the plaintiff now has her own desk and her work station has been improved to reduce the frequency with which she has to reach across her body to partake in answering the telephone and making calls. Even with those work adjustments, which, of course, should necessarily have been made from the beginning, the plaintiff is unable to increase her work hours beyond the 21.5 hours certified by her general practitioner. I accept her evidence that the typing requirements of her work leave her with pain and aching in the arm at night.
49 In conclusion, on the basis of the medical evidence that is up to date in this application, I find that the plaintiff is unable to increase her hours beyond the 21.5 hours per week and that this condition and restriction is permanent in the sense that it is for the foreseeable future. All the medical practitioners assess this condition of the plaintiff as being for the foreseeable future.
50 The parties relied on reports of Mr Ton Tran, Mr Nigel Broughton and Mr Wearne. The medical reporting in respect of these particular practitioners is now out of date and is not of assistance to the Court in assessing the current position of the plaintiff.
51 In the course of argument and submissions, Mr Middleton, on behalf of the defendant, submitted that the plaintiff could either work longer hours or at a higher average rate. He relied upon the report of CoWork Pty Ltd dated 23 May 2013 which was prepared by Joanne Bryant. This appears at page 38 of the Defendant’s Court Book. In that report, Ms Bryant refers to a call centre operator being paid at the rate of $24.42 an hour. Even if the plaintiff was to be paid at the rate of $25 per hour for her limited 21.5 hours per week, her gross weekly wage would be less than $540. This is clearly less than the 60 per cent threshold set out earlier in these reasons. The plaintiff, in her evidence, clearly stated that she had not looked for higher paid work on the practical basis, that she had a job and that at her age with her injuries she was unlikely to be employed by anyone else. I accept that that is a practical answer from the plaintiff, particularly in light of the fact that I accept that she has had, prior to obtaining this particular employment with Drytron, made considerable and extensive efforts to obtain employment herself.
52 It was also suggested that the plaintiff could obtain a job as a pharmacy assistant or a hotel/motel receptionist. I note that in the duties set out within the report from CoWork Pty Ltd that for the pharmacy assistant, one of the duties would be to lift packages in the range of 10 kilograms and stack them on shelves which would necessarily involve being over shoulder height. I note that this is an activity that is outside the medical restrictions set for the plaintiff’s work by her general practitioner. Another form of employment suggested as appropriate for the plaintiff was a hotel/motel receptionist. I note within the duties required from such a worker, that they would be required to move trundle beds and cots. The activities required of a hotel/motel receptionist are outside the restrictions set by the doctor charged with the care of the plaintiff.
Surveillance
53 The plaintiff was shown surveillance film for 27 April 2013. Prior to the surveillance film being shown to her, the plaintiff was questioned about her ability to sit at one pokie machine and reach across to the one to her right and activate that machine. The plaintiff readily admitted that she could do that and in part demonstrated such an action whilst in the witness box. I have looked at the DVD of the surveillance film of the plaintiff and none of the actions set out for the plaintiff or observed by me in any way challenge credit. To the contrary, the plaintiff readily admitted what she could do, and the physical activities shown on the DVD do not show she has a greater capacity for work or any other general activities that she has readily given evidence about in this case. I am mindful that when watching surveillance films that the pronouncements by the Court of Appeal in the matter of Church v Echuca Regional Health[22] are to be adhered to by courts hearing serious injury applications.
[22][2008] VSCA 153
Conclusion
54 In conclusion, I am satisfied that the plaintiff has proved, based on the medical opinions in this case and her own evidence, that she has a limited work capacity. The medical opinions support the plaintiff to the extent that she can engage in alternative duties, in this particular case, office-type work at a call centre. The medical opinion is that the plaintiff’s current condition is permanent in the sense that it is for the foreseeable future that she will be unable to return to any greater duties.
55 I conclude, based on the evidence of the plaintiff, which I accept, and the treating medical practitioners and assessors, that the plaintiff has suffered a loss of earning capacity which is productive of a financial loss of more than 40 per cent per annum of the “without injury” earnings figure. The loss of earning capacity in this regard is permanent.
56 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring proceedings at common law pursuant to s134AB(16)(b) of the Act to recover damages for loss of earning capacity which has arisen out of the course of the plaintiff’s employment with the defendant between October/November 2008.
57 I will hear the parties on costs.
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