Cosoleto v Malua Racing Pty Ltd
[2018] VCC 709
•22 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04898
| Gulia Cosoleto | Plaintiff |
| v | |
| Malua Racing Pty Ltd | Defendant |
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JUDGE: | His Honour Judge SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 May 2018 | |
DATE OF JUDGMENT: | 22 May 2018 | |
CASE MAY BE CITED AS: | Cosoleto v Malua Racing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 709 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – injury to the cervical spine
Legislation Cited: Accident Compensation Act 1958
Cases Cited:Berthelot v Fleetwell [2015] VCC 1453; State of New South Wales v Moss [2000] NSWCA 133
Judgment: Leave Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC and Mr M Clarke | Adviceline Injury Lawyers |
| For the Defendant | Mr T Storey | Wisewould Mahony |
HIS HONOUR:
1 In this application the plaintiff seeks leave to commence a proceeding claiming both pecuniary loss and pain and suffering damages in respect of a traumatic injury suffered by her in the course of her employment with the defendant on 11 May 2015.
2 There is no issue that the plaintiff suffered a serious injury to her cervical spine when she was kicked by a horse in the course of her employment as a stable hand, which required her to undergo surgery in the form of an open reduction and internal fixation at the C6/7 level of her cervical spine with anterior and posterior fixation.
3 Neither is it an issue that the pain and suffering consequences of that injury meet the definition of serious as employed by the Accident Compensation Act 1958 (“the Act”).
4 In the circumstances the task required of me is to determine whether the effect of the injury upon the plaintiff’s capacity to earn income is such that it will continue permanently to give rise in the plaintiff to a loss of earning capacity which will be productive of a financial loss of 40 percent or more.
5 In the application the parties rely upon:
(i) affidavit evidence filed by the plaintiff in the form of two affidavits sworn 26 May 2017 and 8 May 2018 respectively together with an affidavit sworn by her partner dated 10 May 2018; and
(ii) medical and like reports and records tendered by them.
6 In addition, the plaintiff gave viva voce evidence and was cross-examined.
7 The tendered evidence and for that matter the plaintiff’s viva voce evidence is the subject of record and I do not propose to refer to it in detail in the course my reasons other than where to do so is necessary to explain and give context to my findings.
8 Given the single issue to be decided in the case most of the cross examination involved the exploration of the plaintiff’s work history both before and after her injury.
9 In my opinion no issue arose as to the plaintiff’s credit or her reliability as a witness.
10 As to the latter comment, whilst it was put by the defendant that the plaintiff’s viva voce evidence as to the reason for which she ceased employment with Chris Waller (who was described by Counsel on behalf of the defendant as Australia’s leading trainer) did not accord with the statement made by her in her affidavit, I am satisfied that a fair analysis of the plaintiff’s evidence establishes that the presentation of her work-related incapacity was a relevant cause of her decision to leave that employment.
The medical evidence
11 On 10 July 2015 the plaintiff underwent an open reduction and internal fixation of the C6/7 level of the cervical spine with anterior and posterior fixation from which she made an uneventful recovery.
12 Whilst the plaintiff’s condition is currently stabilised David Middleton, in his report dated 24 March 2018, opines that the plaintiff presents with a vulnerable cervical spine which is predisposed to an increased level of age-related degeneration in the discs above and below the injury, the result being that her condition is likely to deteriorate at an accelerated rate into the future.
13 Relevant to the plaintiff’s capacity for alternative employment, the plaintiff’s IQ has been assessed by Prof Simon Crowe and Dr Robin Stargett as being within the borderline to low average range, at the 7th to 9th percentile rank.
14 There is no issue that the injury sustained by the plaintiff precludes her from riding as a jockey or a track rider.
15 I am satisfied that the true position of the plaintiff’s current capacity for work as demonstrated by the medical evidence is that her injury precludes her from undertaking the totality of the duties required of her in her current employment as a stable hand, and for that reason that employment as a stable hand does not now constitute suitable employment for the plaintiff in that it exposes her to the unreasonable risk of suffering an exacerbation of the condition in her cervical spine injury with potentially dire consequences.
16 I make that finding for the following reasons:
(i) Firstly, the nature of the surgery required by the injury, when considered in the context of the plaintiff’s young age at the time at which he suffered injury, demonstrates not only the severity of the initial insult suffered by her to her spine but also the potential vulnerability to which she has been exposed by the permanent alteration to the structure of her spine.
(ii) Secondly, in his report dated 7 September 2017 Dr Michael Bynes, an occupational physician retained on behalf of defendant, comments that the plaintiff:
· should not engage in lifting of weights greater than 10 kg on an occasional basis and 7 kg on a repetitive basis;
· should avoid jarring actions across her neck and exposure to vibration forces. He also comments that restrictions should be imposed upon the plaintiff engaging in the control of horses that are particularly frisky which can cause jarring to her neck. In his report dated 6 March 2018 Mr Baines makes similar comments.
(iii) Thirdly, in his report dated 24 March 2018 Mr Middleton, an occupational physician who has examined the plaintiff at the request of her solicitors, comments that the plaintiff is permanently incapacitated for her pre-injury duties or for any type of employment which has a significant physical\manual component.
(iv) Fourthly, it is the plaintiff’s unchallenged evidence that no employer with whom she has commenced employment since sustaining her injury has been aware of her injury or the presence of the limitations as described in her first affidavit. I am satisfied that the latter point provides the explanation for the ability of the plaintiff to obtain employment as a stable hand and I accept her evidence that she is:
“limited in the types of horses I can manage. For example, I can only take horses that do not have an anxious temperament to and from races because I could not manage the physical strength that is required to control these types of horses. I also worry about being struck again and try to avoid unpredictable horses wherever possible. If I do have to work around horses who are temperamental I am hyper vigilant and constantly on alert”.
17 I am satisfied that it is only through the plaintiff’s stoicism and stubborn persistence that she continues to undertake the duties of a stable hand.
18 Whilst it is put on behalf of the defendant of the plaintiff’s capacity to perform those duties is truly representative of her post injury capacity that position does not accord with the medical evidence to which I have referred.
19 In reality I am of the opinion that:
· the medical evidence conclusively makes the case that work as a stable hand exposes the plaintiff to unacceptable risk of suffering a serious exacerbation of her injury;
· the plaintiff’s continued work as a stable hand is born of her youthful exuberance and reluctance to accept the position that the vulnerable condition of her neck is such that it exposes her to a considerable risk of suffering a life changing disabling injury in the course of her handling of thoroughbred racehorses whose range of behaviours can vary from the placid to the violent and unpredictable; and
· with the passage of time it is likely that the difficulties which the plaintiff experiences with her current employment will increase such that notwithstanding her love of horses and stoicism, her capacity for work will be likely to reflect the medical evidence and that she will have to give up working as a stable hand.
20 There is no issue that the plaintiff:
(i) has continued to work as a stable hand since sustaining her injury; or
(ii) has undertaken that work for a number of employers including Mr Waller who was described by Counsel for the defendant as one of Australia’s leading trainers, in the course of which employment she generated income as high as $1,300 per week.
21 In my opinion it could not be contended that the plaintiff is anything other than a very impressive, hard-working, stoic young woman who has done everything to mitigate:
· not only the financial consequences to her of her injury; but also
· the lifestyle consequences of that injury in that she has continued to pursue her love of horses and her desire to work in the thoroughbred racing industry.
22 My strong impression of the plaintiff as she gave evidence was that she was a straightforward, unsophisticated young lady who was a witness of truth. I am satisfied that while she was a reliable witness, she was never-the-less inclined to make occasional concessions to her detriment which were not borne out with the reality of the situation and that tendency to do so arose by reason of a combination of a lack of sophistication and the intimidating environment of the litigation process.
23 I accept the plaintiff’s evidence that her work as a stable hand causes her to feel exhausted and that she is currently working at the limit of her capacity. That evidence is consistent not only with my expectation as to the likely consequences of the plaintiff’s physical injury is but also the medical evidence.
24 Whilst it is put on behalf of the defendant that whilst employed with Mr Waller the plaintiff was working long hours which demonstrated definitively her capacity to do so, the nature of the injury which the plaintiff has sustained, when considered in the totality of the medical evidence, satisfies me the position contended for by the defendant is unlikely.
25 Rather, I prefer and accept the plaintiff’s affidavit evidence that she pushes herself to keep working because of her love of horses and her need for income, but that she is uncertain as to whether she will be able to remain working as a stable hand long-term by reason of the condition of the neck.
26 In my opinion it is a testament to the plaintiff’s stoicism and motivation that she was able to generate the level of income which she did in her employment with Mr Waller notwithstanding the extent of the disability with which she presents, which is accepted by the defendant as giving rise to serious consequences as defined by the Act in so far as those consequences pertain to pain and suffering and loss of enjoyment of life.
27 In reality, I am of the view that the wage which the plaintiff generated whilst in employment with Mr Waller is representative of the type of income which would have been available to the plaintiff in without injury employment, but in reality that also represents a wage generated by an activity which is unsafe on medical grounds for her to continue to pursue.
28 There can be no issue that the medical evidence establishes that prior to her injuries the plaintiff was fit for unrestricted work.
29 Neither can there be any issue that whilst the plaintiff’s condition at the present time is stable it nonetheless:
(i) is likely to deteriorate with the progression of her condition;
(ii) renders her vulnerable to further injury; and
(iii) operates such that she now presents with very considerable restrictions on her capacity for work and physical activity.
30 I have carefully considered the reports provided by Dr Baynes and Dr Middleton which form the primary medical evidence relied upon by the parties as to the plaintiff’s capacity for work.
31 In my view:
(i) the position taken by Mr Middleton that the plaintiff is only fit for part-time work on non-consecutive days is not borne out by the evidence which suggests that the plaintiff is fit for full-time employment which is appropriately structured to accommodate her reduced capacity; and
(ii) the position taken by Dr Baynes that the plaintiff is fit for her pre-injury work duties makes no sense when considered in the context of my interpretation of the content of his report in which he opines that restrictions should be imposed upon the plaintiff’s obligation in her work as a stable hand as to the control of “horses, particularly frisky horses, which can cause jarring to the neck’.
32 A summary of the respective positions of the two doctors which I find to be largely persuasive may be set out as follows:
a. Dr Baynes in September 2017 described the occupational restrictions associated with the plaintiff’s physical injury as follows:
“the plaintiff is fit for full-time hours where there is no heavy lifting greater than 10 kg on an occasional basis and no repetitive lifting greater than 7 kg. She should not work with constrained postures of the neck. She should avoid jarring actions across the neck and exposure to vibration forces…… There are restrictions in terms of controlling horses particularly frisky horses which can cause jarring to the neck hence increasing the pain…… She would be fit to work in administrative duties in the stables and training organisations….. She would be fit to work in an office and in a light packing process work or as a sales assistant.
b. Dr Middleton opines that the plaintiff:
“no longer has the safe or reliable physical capacity to undertake her pre-injury duties…. Activities involving her upper limbs, head and neck need to occur preferably below shoulder height or above mid-thigh avoiding repetitive prolonged or forceful activities where the maximum effective weight or force to be applied is limited to 5 kg on an occasional basis and 3 kg on an intermittent basis….. Noting the need for Mersyndol Forte to manage increased pain, care is required in the proposition of operating machinery….. Ms Cosoleto only has recognised skills as a strapper and stable hand…….It is my opinion that Ms Cosoleto is permanently incapacitated for her pre-injury duties or for any type of employment which has a significant physical manual component. I note that to her credit Ms Cosoleto, is not work-shy and takes up casual positions working as a stable hand; her current employment to be located at the Flemington Racecourse…… Any employment and work undertaken would need to be monitored carefully by Ms Cosoleto’s treaters to ensure that pain remains manageable,[1]
[1] As to the difference of opinion between these two experts upon the issue of the weights which the plaintiff should handle in the course of her employment and ability to manage those weights on a repetitive or intermittent basis, given the severe nature of the plaintiff’s injury and her young age, when considered in the totality of the evidence as to her symptoms, I find the evidence of Dr Middleton more persuasive on that issue.
33 As I have said it is put on behalf of the defendant that the plaintiff’s capacity for work has been demonstrated conclusively by the work she has undertaken following her return to work after surgery.
34 That position in my opinion ignores the difference between true capacity for activity and the reckless attitude of a youthful worker in failing to accept the reality of the situation that her capacity for activity has been altered by the effect of the injury she has suffered such that the continuance of a work activity which provides enjoyment nonetheless exposes her to a clearly unacceptable medical risk.
35 In my opinion it is fanciful to suggest that a commercial trainer of racehorses would be prepared to employ the plaintiff as a stable hand on the condition that she should not be exposed to any risk of a horse acting or reacting in a manner which is unexpected and exposes her to the possibility of a violent unguarded movement of her cervical spine or head.
36 I have no doubt that it is for that reason that since returning to work the plaintiff has not informed any of her employers of the nature of her injury.
37 Further, given the plaintiff’s evidence as to the falsity of the reason provided to her for the loss of her employment with the defendant, I am satisfied that there are good grounds for the plaintiff believing that the cause of that loss of employment related to the defendant’s knowledge of her injury (although I make no positive finding as to that fact).
38 In my opinion the approach adopted by His Honour Judge O’Neill in Berthelot v Fleetwell[2] provides sound guidance as to the issues which I should consider in assessing the earning capacity lost by reason of the workplace injury.
[2] [2015] VCC 1453 at [61].
39 To those reasons, I would add the following statement by the New South Wales Court of Appeal in State of New South Wales v Moss[3] as to the process involved in fixing economic loss damages in circumstances in which a loss of earning capacity has been unquestionably reduced, but no precise evidence of relevant loss is available:
‘The task of the trier of fact is to form a discretionary judgement by reference to not wholly determinative criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgement must achieve satisfaction that a fair award is being made since what is involved is not the finding of historical facts on the balance of probabilities of the assessment of the value of a chance it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility’.
[3] [2000] NSW CA 133 at [87].
40 For the reasons set out above I am not satisfied that the plaintiff’s post injury earnings are representative in any way of her true retained capacity for work which caters appropriately for her post injury medical condition and does not expose her to unreasonable risk of serious exacerbation of that condition.
41 It is difficult in the circumstances of the case to fix with any precision the plaintiff’s real post injury earning capacity in so far as that capacity generates an income which is capable of being calculated in a specific dollar sense.
42 I make that statement having regard to the fact that, to date, the plaintiff’s income has been generated by employment in which she has let common sense and medical evidence be overborne unreasonably by her love of horses and the racing industry, and her desire to continue that association.
43 In my view, the maximum wage generated by the plaintiff in post injury work with Mr Waller, namely up to $1300 per week, probably represents a conservative indication of the level of income which she may have been able to achieve had she not been injured.
44 I make that statement given that the plaintiff would have presented as a dedicated, stoic, reliable, and impressive young woman, who was not shy of work and was keen to advance her position within the industry she loved, in circumstances in which she was unshackled by her current symptoms as described in her affidavit.
45 In making the above statement I take into account the plaintiff’s comorbidities namely her asthma and diabetes which I am satisfied the plaintiff has proven she can manage such that they do not impact upon the activities required of her in the workplace.
46 In my opinion the medical evidence to which I have referred by Dr Middleton and Dr Baynes establishes that the plaintiff has lost a very significant capacity to generate income in employment which is now within her physical capability.
47 Superimposed upon that position is:
(i) the plaintiff’s limited schooling, in that she has only completed her year 10; and
(ii) her neuropsychological assessment which in my opinion makes it clear that the plaintiff’s future employment options would be limited to largely unskilled physical type work within her reduced physical capacity.
48 I am satisfied in the circumstances that it is probable the plaintiff’s reliable earning capacity has been reduced permanently by something in the order of 50 percent to that which existed had she not been injured.
49 It may be the case in some instances that a theoretical diminution in earning capacity in a worker would not be productive of a financial loss of 40 percent or more for that worker.
50 In the present case given:
(i) the plaintiff’s limited education;
(ii) the results of the neuropsychological testing to which I referred; and
(iii) the findings I have made as to the medical evidence and as to the limited type of work which the plaintiff has a retained capacity to undertake;
I am satisfied that the loss of earning capacity which I have found to be established in this instance will be productive of financial loss which meets the statutory threshold established by the Act.
51 For these reasons I am satisfied that the plaintiff is entitled to leave sought in this instance.
52 I will hear the parties as to the nature of the order which should be made and also upon the issue of costs.
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