Courtney-Clarke v Rytelle Pty Ltd (t/a Novotel Forest Resort) and Victorian WorkCover Authority
[2015] VCC 804
•26 June 2015
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT | Revised Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05417
| ELEANOUR JANE COURTNEY-CLARKE | Plaintiff |
| v | |
| RYTELLE PTY LTD (trading as NOVOTEL FOREST RESORT) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 15, 16 and 17 June 2015 | |
DATE OF JUDGMENT: | 26 June 2015 | |
CASE MAY BE CITED AS: | Courtney-Clarke v Rytelle Pty Ltd (t/a Novotel Forest Resort) & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 804 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Workplace accident – injury to left hip – loss of earning capacity consequences – whether the plaintiff has residual capacity to work
Legislation Cited: Accident Compensation Act 1985, 134AB
Judgment: The plaintiff has leave to commence a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B E Walters QC with Mr K D Mueller | Ryan Carlisle Thomas |
| For the Defendants | Mr P A Scanlon QC with Ms F A L Ryan | IDP Lawyers Pty Ltd |
HIS HONOUR:
Introduction
1 The plaintiff was born in June 1965. She is now forty-nine years of age. She is married. Her husband is self-employed. She has a son by a previous relationship. Her husband has children by a previous relationship. Altogether they have about ten grandchildren.
2 The plaintiff is a well-educated woman. She attended Sebastopol Secondary College, completing Year 10. She then obtained work in a supermarket and in the hospitality industry. She worked in a Chinese takeaway businesses part time from the age of thirteen years. It became a full-time job when she was twenty years of age, and she worked in that occupation for the next twenty years.
3 The plaintiff obtained a Diploma of Hospitality Management from Ballarat University. She attended at the University full time between 2003 and 2005.
4 Upon completing her studies, she obtained employment as the duty manager of the North Ballarat Sports Club from 2005 to 2008. In March 2008, she obtained employment as the conference manager at the Novotel Forest Resort in Creswick. It is a business owned and conducted by the first defendant.
5 The plaintiff was employed under a contract in writing which is exhibited to her second affidavit sworn 3 June 2015. It describes her position as full time. It describes her position as “Conference and Catering Operations Manager”. I will return to some aspects of the contract later in these Reasons where necessary.
6 The resort comprises accommodation and conference facilities. It has a golf course attached to it. The plaintiff gave quite a bit of evidence about the work which she undertook at the North Ballarat Sports Club, and at the resort. She was intent upon working within the hospitality industry because she wanted to develop a career in that area.
7 The plaintiff developed particular skills in event management while working at the resort. One of the principal types of functions for which the resort was engaged with was weddings. She developed skills in dealing with clients; dealing with both the front-end in the back-end of “house”; liaising with suppliers of alcohol and food; dealing with staff, and similar organisational work. The plaintiff often worked up to 70 hours per week.
The incident
8 On 18 January 2009, a wedding reception was held at the resort. It finished at about midnight. The plaintiff remained behind to tidy up and to pack things away. Part of the tidy-up involved the mopping of a marble floor in the foyer of the resort.
9 The plaintiff walked out of the ballroom at the resort and headed towards her office. She needed to traverse the area which had been mopped. As she did so, she slipped and fell on the wet floor, landing on her left hip and left elbow.
What is in issue?
10 The defendants conceded that the pain and suffering consequences of the impairment of function of the plaintiff’s left hip meets the statutory test of seriousness. The defendants denied that the loss of earning capacity consequences contended for by the plaintiff could meet the statutory test of seriousness.
11 There were a number of issues which were agitated by the parties relevant to whether the plaintiff could establish that her loss of earning capacity consequences could meet the statutory test of seriousness:
· Firstly, the number of hours the plaintiff can work in suitable employment.
· Secondly, the calculation of the plaintiff’s “without injury” earnings and her “with injury” earnings.
The Plaintiff’s hours of work
12 I propose to refer to only some of the medical evidence in order to create the context within which it can be understood why the plaintiff is incapacitated for her former work at the resort, and has a residual capacity for part-time work rather more in reception work than event management.
13 The plaintiff was taken to the Ballarat Base Hospital. She had sustained an undisplaced fracture of the neck of her left femur. She was treated surgically, with the fracture being reduced by percutaneous screws. She subsequently returned to work at the resort on modified duties.
14 After consulting Dr Phillips, general practitioner, the plaintiff was referred to Mr Nelson, orthopaedic surgeon. He referred her to have an x-ray of her left hip. He considered that the x-ray demonstrated that the fracture had united satisfactorily. He removed the screws on 10 March 2010. The plaintiff later reported to him that she felt significantly better as a result of the screws being removed.
15 The plaintiff subsequently developed pain in her lower back, buttock and left leg. Dr Phillips referred her back to Mr Nelson. Mr Nelson referred her to have a CT scan. He advised her to have a caudal anaesthetic injection, which was undertaken on 9 December 2010. The plaintiff reported that it had not helped her very much. Mr Nelson then referred the plaintiff to have an MRI scan, which was undertaken on 15 December 2010; a bone scan, which was undertaken on 23 December 2010, and a nuclear medicine scan which was undertaken on 28 March 2011.
16 There was a lapse in the treatment provided by Mr Nelson from late 2010 until the plaintiff was referred back to him on 27 March 2012. At that time, the plaintiff was complaining of pain in her hip, with pain in her lower back. She told him that she was troubled by that pain day and night and that it was a burning-type pain extending into her left groin and thigh, and leaving her with a cold feeling in that area. Dr Nelson referred the plaintiff to Dr Khan, consultant physician in rehabilitation and pain medicine, and he also consulted his radiology colleagues, who suggested that the plaintiff should have autologous blood injections. It would appear that the injections did not give the plaintiff any relief. Mr Nelson thought that the plaintiff might have suffered from inflammatory changes in her hip abductors in the form of tendinitis.
17 Overall, the medical evidence on the plaintiff’s side was rather stale. The most recent opinion on the source of the plaintiff’s continuing complaints of pain and disability came from Dr Marton, general practitioner, who provided a number of medical reports, and who gave evidence. In his report dated 5 May 2015, he considered that the plaintiff was suffering from chronic tendinitis of her left hip, and lower back pain. Under cross-examination, Dr Marton said that the plaintiff had actually developed a tear in her gluteus medius muscle which was evident on an MRI scan. I infer that he considered it was a pathological development which was causally related to the plaintiff’s initial injury. He said that the tear was analogous to a rotator cuff bursitis.
18 Mr Kossman, orthopaedic surgeon, examined the plaintiff in October 2013. He made a similar diagnosis regarding the gluteus medius muscle.
19 Dr Davison, consultant occupational physician, also diagnosed a gluteus medius tendinopathy and mild trochanteric bursitis, but he considered that it was of uncertain clinical significance.
20 The foregoing is sufficient to demonstrate the nature and extent of the injuries suffered by the plaintiff. In her affidavits sworn 7 May 2014 and 3 June 2015, she described the extent to which they disable her. In her first affidavit, she deposed to the following:
“I continue to have a constant burning sensation in the left groin which gets very bad when I’m on my feet for too long and only eases after I take pain killers. However, the sensation never goes away completely.
I suffer a sensation like a serrated knife being dragged along the outside surface of the left side of my left leg from the hip to the knee. This comes and goes but usually comes on if I sit or stand for too long and almost invariably those symptoms once they start end up becoming quite severe.
The back pain is constant and never completely goes away. Some of the time the pain is moderate but quite often it becomes very bad to severe. I mainly take painkillers for the hip pain and when I take Endone it also takes the edge off the back pain as well.”
21 The plaintiff deposed to a number of pain and suffering consequences which I do not propose to repeat in whole, save to say that she suffers interference with her sexual intimacy with her husband; picking up and nursing her younger grandchildren; engaging in gardening; walking up and down the driveway of her home in Ballarat and up the steep grade to hang out washing, and additionally, she described interference with going to the races, doing her shopping and walking her dogs.
22 The plaintiff returned to work at the resort on modified duties in July 2009, initially working only a few hours. The modified duties involved undertaking mainly reception work which enabled her to avoid being on her feet or needing to sit in one position for too long.
23 The plaintiff ceased working at the resort in July 2012. She and her husband moved to Tocumwal. The principal reason why the plaintiff and her husband moved to Tocumwal was because the plaintiff thought that the weather conditions in Tocumwal would be warmer than Ballarat. One of the other reasons was because her husband was very keen to retire to Tocumwal. It would appear that the move suited both of them. It also had a secondary benefit, in that their house block is flat, unlike the steepness of the house block in Ballarat.
The Plaintiff’s work in Tocumwal
24 The plaintiff and her husband moved to Tocumwal in July 2012. The plaintiff obtained employment at the Tocumwal Golf Club. Initially, she was employed as a casual bar attendant/waitress. Since May 2014, she has been employed as a permanent part-time employee.
25 In March 2014, the plaintiff suffered a fracture to her right wrist which required surgery. She was off work for about six weeks. Following her return to work, she was unable to engage in bar work, and in particular, she said that she could not lift heavy trays, glasses and jugs of beer and things of that kind due to the state of her right wrist. She was able to continue working, but in reception work. She anticipates that when she completely recovers from the consequences of the fracture, she will continue doing reception work. That is an arrangement she has arrived at with her employer.
26 At present, the plaintiff is working about 24 hours per week, although payroll records demonstrate that she has in fact work less than those hours through 2015 and up to the present time, and on some occasions, in excess of 24 hours. The plaintiff was working the same hours at the resort as a bar attendant/waitress.
27 Under cross-examination, the plaintiff was asked why she could not work more than 24 hours in reception work if it is lighter work than work as a bar attendant/waitress. At first the plaintiff said that she could not do that because the sitting and standing involved produced pain, and she would find working in excess of 24 hours tiring. Despite her earlier answers, the plaintiff then reluctantly conceded that she could probably work 30 hours per week in reception work.
28 Under re-examination, the plaintiff said that she might have worked 30 hours a week in the past year. She said that when she had worked those hours she went home “with extreme pain” in her hip and lower back. She added that if she happens to work more than 24 hours, it will result in her suffering pain in her left hip and back. The onset of that pain results in her becoming depressed. It also has affected her work ability because she takes more medication, which in turn has resulted in her going over her work to make sure that what she has done is correct, because her concentration levels are adversely affected by the increase in pain, the onset of depression and the need for more medication.
29 The plaintiff’s husband swore an affidavit in which he described the plaintiff’s physical state when she returns to their home after doing a day’s work:
“When she comes home she appears to be absolutely spent and in a lot of pain. She usually has to rest up for some hours in the lounge chair or having a lie down. As a result I now do most of the cooking and I try to get home from work before her because she is so driven I am concerned that she would get stuck into the cooking and house work even though in obvious pain.”
30 Dr Marton was asked about the plaintiff’s capacity to work in her present job as a receptionist. Firstly, he said that the plaintiff is unfit for her pre-injury duties. That opinion is shared by all of the other medical practitioners who have been asked to offer an opinion on the plaintiff’s capacity to return to her pre-injury employment. Secondly, he considered that the plaintiff was able to cope with working 20 hours a week in work as a bar attendant/waitress. He considered that working in excess of those hours in those duties would aggravate the injuries and cause her more pain. When he was informed that the plaintiff was now doing reception work and not bar attendant/waitress work, he considered that she could work 25 hours per week in reception work. Under re-examination, Dr Marton said that sitting for too long with a chronic hip injury would cause pain.
31 The most recent medical opinions are from Mr Doig, orthopaedic surgeon, Dr Kossman, orthopaedic surgeon and Dr Davison, consultant occupational physician.
32 Mr Doig examined the plaintiff in January 2014. He considered that the plaintiff could work up to 30 hours per week, and it would appear that he was of that opinion relevant to the work she is performing at the Tocumwal Golf Club.
33 Mr Kossman examined the plaintiff in October 2013. It was before the plaintiff commenced doing reception work at the Tocumwal Golf Club. He considered that the plaintiff could work 20 hours a week as a bar attendant/waitress.
34 Dr Davison last examined the plaintiff on 30 April 2015. He recorded that the plaintiff told him that she was working 30 hours per week at the Tocumwal Golf Club undertaking reception and restaurant/bar work. Under cross-examination, the plaintiff doubted that she told him that, but said she may have.
35 The conclusions I have reached, having considered the plaintiff’s evidence, that of her husband and the medical evidence, is that the plaintiff has suffered a very serious injury to her left hip which has not only incapacitated her for her pre-injury work at the resort, but impairs her ability to do work which involves amounts of sitting and standing which are beyond her levels of tolerance. There seems to be acceptance by the medical practitioners I have referred to for those two propositions.
36 The difficult question is whether the plaintiff will be return to a capacity to undertake bar attendant/waitress work when she has completely recovered from the fracture to her right wrist. The conclusion I have reached is that she will not. My reasons for reaching that conclusion are – I accept the plaintiff’s evidence that she has a level of pain which incapacitates her to undertake simple social, domestic and recreational pursuits, and also work duties. I accept that she has very real difficulty in sitting and standing. The reception work which he undertakes now is lighter than bar attendant/waitress work, but nonetheless the amount of sitting and standing involved in it is enough to cause her more pain to the point where her toleration in coping with that work is somewhere between 25 and 30 hours per week.
37 Interestingly, Dr Marton, Mr Doig, Mr Kossman and Dr Davison did not explain why they seized upon a certain number of hours as representing the plaintiff’s retained capacity for work. It is common enough to see medical practitioners in serious injury applications being asked to nominate the number of hours which a worker may be able to undertake. It becomes almost a process of intuitive synthesis; however, it occurs to me that the only person who really knows the answer to this question is the plaintiff herself. To put it colloquially, the plaintiff has undergone a serious road test of her capacity for work since she first returned to work after the first episode of surgery on her left hip. Despite the seriousness of the impairment of function of her left hip, she has soldiered on, but now she is at the point where her capacity to work is significantly impaired.
38 I am fortified in reaching that conclusion because of the unchallenged evidence of the plaintiff’s husband, who has observed her to be, as he put it, “spent” after a day’s work, even in the light work in reception that she is performing at the Tocumwal Golf Club.
39 There is no issue of credit or reliability raised by the defendants in the true sense. Certainly, Mr Scanlon QC properly challenged parts of the plaintiff’s evidence, but in the end, I was impressed by the plaintiff and the quality of her evidence to the extent that I accept it. In accepting it, I find that she is unlikely to be able to work 30 hours per week, even though she reluctantly conceded during her cross-examination that she could. My reason for being less persuaded by that answer is because it occurred to me that it was an answer given reluctantly, and against the grain of her earlier evidence, her husband’s evidence, Dr Marton’s evidence, and the answers she gave in re-examination in that regard, which I thought were particularly telling. It was at a time when she had given, or so it occurred to me, consideration while in the witness box to the issue of how many hours of work she could undertake a week as her level of tolerance. On occasions that she believed she had worked those hours, it is quite apparent that she suffered “extreme pain” in her hip and lower back, and when that occurs, there are other consequences for her, such as the onset of depression, the need to take more medication and impairment of her concentration and capacity to apply herself to her work.
Calculation of loss of earning capacity
40 The plaintiff executed a contract of employment with the resort which fixed her salary to $47,000 gross per annum. On a weekly basis that amounts to $903.85 gross per week (rounded up to the nearest cent). A calculation of 60 per cent of that weekly figure is $542.31.
41 The plaintiff’s current hourly rate is agreed at $19.64. At 25 hours per week, that is $491 gross per week. On that basis, the plaintiff has satisfied the statutory test relevant to loss of earning capacity and that her loss of earning capacity is at least “very considerable”.
The Defendants’ alternative position
42 The defendants obtained a vocational assessment report which was prepared by Ms Christie Bourke on 4 June 2015. Ms Bourke identified four occupations which she considered were suitable forms of employment for the plaintiff by having regard to the plaintiff’s residual capacity for employment. Dr Davison considered each of those, but not by reference to the report of Ms Bourke, but by reference to a report of an organisation known as Konekt dated 17 November 2010. The report is referred to in the index of the Defendants’ Court Book, but it was not tendered into evidence. I do not know whether the job descriptions identified by Ms Bourke are the same as the job descriptions for those occupations identified by Konekt, even though the job titles are the same.
43 The job descriptions are conference and event organiser, receptionist, general clerk, bookkeeper and enquiry clerk. I have calculated 60 per cent of the gross expected income for each of those occupations. At 25 hours per week at $19.64, the income earned by the plaintiff is well under all of those calculations.
Conclusion
44 I am satisfied that it is more likely than not that the plaintiff cannot work more than 25 hours per week in her present job as a receptionist at the Tocumwal Golf Club. I am satisfied that when the hourly rate is applied, that she cannot earn more than 60 per cent of the gross income with respect to any of the occupations identified by the defendants as apparently being suitable employment.
45 On the basis of the foregoing, therefore, I find that the plaintiff has satisfied the relevant statutory test, and that her loss of earning capacity consequences are “at least very considerable”.
46 I propose to grant the plaintiff leave to bring a proceeding at common law to recover damages for both pain and suffering consequences and loss of earning capacity consequences.
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