Courtney v State of Victoria
[2012] VCC 184
•8 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00549
| SCOTT RONALD COURTNEY | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF JUSTICE) | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 January 2012 | |
DATE OF JUDGMENT: | 8 February 2012 | |
CASE MAY BE CITED AS: | Courtney v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 184 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – low-back injury – plaintiff performing work on Community-Based Order – pain and suffering damages and loss of earning capacity damages – whether plaintiff has capacity for employment after operation on back – whether plaintiff can do alternative duties – whether injury satisfies the threshold test.
LEGISLATION CITED – Accident Compensation Act 1985.
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Roleff v Chubb Insurance Company of Australia Pty Ltd [2011] VSCA 21
JUDGMENT – Leave granted for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Paul F O’Dwyer SC with Mr M Cvjeticanin | Maurice Blackburn Lawyers |
| For the Defendant | Mr J C Simpson | Thomsons Lawyers |
HIS HONOUR:
Introduction
1 Before the Court is an application brought by Originating Motion filed on 17 February 2011 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by him arising out of work he was performing with the defendant in the service of a Community-Based Order (“his employment”). The plaintiff alleges that during the course of his employment, he injured his lower back. The plaintiff says that the injury occurred on either 3 or 12 October 2006.
2 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages.
3 The following evidence was adduced or tendered during the hearing:
·The plaintiff gave evidence and was cross-examined;
·The plaintiff tendered the following documents:
§ Exhibit A – the Plaintiff’s Court Book (“PCB”), pages 8-19 inclusive and pages 41A-75 inclusive;
·The defendant tendered the following documents:
§ Exhibit 1 – the Defendant’s Court Book (“DCB”), pages 1-43 inclusive and pages 77‑140 inclusive;
§ Exhibit 2 – Notes of Churinga Medical Centre.
4 At the commencement of the application, Mr Simpson, on behalf of the defendant, stated the issues for consideration from the defendant’s perspective were:
(a) Whether the plaintiff’s capacity for suitable employment after re-training and rehabilitation met the threshold test for loss of earning capacity;
(b) In respect of the pain and suffering serious injury application, the following exchange occurred at the commencement of the hearing:
HIS HONOUR: “Do I take it from that there’s no real contest about the pain and suffering part of his claim?---
MR SIMPSON: There’s no real contest, we don’t concede it and there will be some questions about the consequences of the injury.”[1]
(c) There was no issue between the parties about the plaintiff being appropriately considered to be acting in the course of his employment when he was injured.
[1]Transcript 15, Lines 12-16
The Statutory Scheme
5 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of s.134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
6 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment with the defendant on or after 20 October 1999.[2]
[2]S.134AB(1), 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”.[3]
[3]Barwon Spinners, 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 sub-section (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
7 I am required by s.134AE of the Act 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
8 The plaintiff was born on 4 January 1971 and is now aged forty-one.[4] The plaintiff is a married man but is separated from his wife. He has two young children, both of whom live with his ex-wife. He currently lives alone at his stated address.
[4]PCB 9
9 The plaintiff was educated at Maroondah High School. He left during the course of Year 11 to take up an opportunity as an apprentice butcher.
10 He commenced his apprenticeship with Coles in 1988 and has worked his way up from being the clean-up boy to the manager of the meat departments within supermarkets conducted by Coles or Bi-Lo. At the time of his injury, he was an employee of Coles as a manager butcher and had had considerable experience in that role.[5]
[5]PCB 9
11 After his injury with the defendant (the Department of Justice), the plaintiff has not returned to his normal employment. At the time of the application, he was in receipt of Newstart benefits from Centrelink.
Injury with the Defendant
12 This is an unusual case. The plaintiff was convicted of a second 0.05 charge at the Ringwood Magistrates’ Court in August 2006. As part of his sentence, the plaintiff was ordered to serve a three-month Community-Based Order which involved some unpaid work. That work is supervised by the Department of Justice.[6]
[6]T 11
13 Whilst in the process of serving his unpaid community work hours at a retirement village in October 2006, the plaintiff was injured. In the course of his work for the Department of Justice, he was required to dig some holes and lay some sleepers in a trench. It was during the process of digging the trench with a shovel and placing the sleepers in the holes that the plaintiff injured his back. He noted there was pain in his right leg and his lower back.[7]
[7]PCB 10, paragraphs 6 and 7
14 The plaintiff did not immediately report the injury. He attended a 24-hour clinic and subsequently advised his co-ordinator for the Community-Based Order that he was unable to do his work due to the injury to his right leg. Indeed, a Court Order was made to release him from performing the community work.[8]
[8]PCB 11
15 The plaintiff, in a Claim Form dated 30 November 2006, clearly sets out the circumstances of the injury to him. In that Claim Form, he nominated 3 October as the day of injury.[9]
[9]DCB 1-3
16 There was no dispute from the defendant in this application that the plaintiff was in fact working during the course of his serving the unpaid community work section of his Community-Based Order.
The Plaintiff’s Medical Treatment
17 The plaintiff originally attended a doctor at a 24-hour clinic. He was diagnosed as suffering a strained hamstring.[10]
[10]PCB 10
18 On 24 October 2006, the plaintiff attended Mr Travis Hillard, a physiotherapist.[11] Mr Hillard, on examination, noted that there was swelling of the lower lumbar spine and the plaintiff was particularly tender at L4-5 and L5‑S1. The plaintiff also, on examination, revealed lumbar extension when standing caused sharp pain in his right leg.[12]
[11]PCB 11, paragraph 8, and PCB 48
[12]PCB 48
19 The plaintiff then went to Dr Chang on 24 November 2006. Dr Chang continues to treat the plaintiff in a conservative manner. On 24 November 2006, the plaintiff underwent a CT scan at the direction of Dr Chang.[13]
[13]PCB 42
20 Dr Chang referred the plaintiff to Mr Myron Rogers, an orthopaedic surgeon. The plaintiff saw Mr Rogers on 14 December 2006.[14]
[14]PCB 11, paragraph 6
21 Mr Rogers recommended that the plaintiff undergo a CT-guided epidural injection, which was performed on 30 March 2007.[15] The plaintiff did not obtain any significant symptomatic relief as a result of that epidural injection. This CT-guided epidural procedure followed an MRI scan, which was performed on 23 February 2007.[16]
[15]PCB 46 and PCB 11, paragraph 10
[16]PCB 74
22 Ultimately, the plaintiff was operated on by Mr Rogers on 24 January 2008.[17]
[17]PCB 47A, T 20, line 9
23 In his operation note dated 24 January 2008, Mr Rogers sets out the full nature of the operation to the plaintiff:
“Mr Courtney was anaesthetised, intubated, a urinary catheter inserted and he was then turned into the prone position onto a Doig frame. Using x-ray surface markings were made on the back over the level of the L5/S1 and L4/5 discs. The lumbar region was prepared and draped and via a mid-line incision the posterior elements from L3 to S2 were exposed as well as the postero-lateral gutters from the transverse process of L4 to the ala of the sacrum.
The rattler at L5 was removed and the inferior two thirds of the L4 lamina was also removed. There were significant epidural adhesions bilaterally and this may relate to the epidural injections which were initially tried to manage the pain. Mobilisation of the thecal sac took place with rhizolysis of the nerve roots. During the course of the dissection it became apparent that there were conjoined L5/S1 nerve roots on the right (therefore it would not be possible to perform a discectomy and PLIF from this side at L5/S1). Pedicle screws were now inserted bilaterally at L4, L5 and S1 and the level and position of the screws confirmed intra-operatively with x-ray.
I now proceeded to remove the L5/S1 disc from the left side and the L4/5 disc and end plates were also excised.
Bone graft that had been salvaged from the decompression was debrided and passed through a bone mill. At the L5/S1 level a single 12 x 11 x 25 mm (0˚) PEEK cage was filled with bone graft and recessed into the interbody space. Compression was now applied across the segment. At the L4/5 level two 11 x 11 x 25 mm (0˚) PEEK cages that had been filled with bone graft were used here. Compression was now placed across this segment. Further bone graft was now packed in the postero-lateral gutters bilaterally from the ala to the level of the L4 transverse process.”
24 This is a significant operation for a man of the plaintiff’s age. The evidence is that the PEEK cages are still within the plaintiff’s back to stabilise it. The plaintiff subsequently had an x-ray on 2 September 2008 to determine whether or not the operation was successful.[18]
[18]PCB 75
25 The plaintiff has subsequently been sent to pain management courses and was given medications for pain relief. He decided that he did not want to continue on with the medications for pain relief. He does not take any medication other than Nurofen and Panadol at the current time.
Medical Opinions
Dr Victor Chang
26 Dr Victor Chang has been the plaintiff’s treating general practitioner for the whole of the time since the injury, to the current time. Dr Chang prepared two reports dated 20 December 2008 and 2 July 2011. Dr Chang sent the plaintiff for a CT scan of his lumbosacral spine on 24 November 2006. Dr Chang reports the CT scan as follows:
“This showed a narrowing of L5/S1 disc, with a unilateral left side L5 spondylosis. There was a large right sided focal disc protrusion herniating into the right L5/S1 neural canal with impingement on the theca and impinging on the S1 nerve root.”[19]
[19]PCB 42
27 The plaintiff was prescribed Voltaren as an anti-inflammatory and sent to physiotherapy for treatment.
28 In February 2007, Dr Chang sent the plaintiff for an MRI scan. Dr Chang reports this scan as follows:
“This showed desiccation of the L4/5 and L5/S1 disc and at the L5/S1 level there was a disc bulge, displacing the L5 nerve root.”[20]
[20]PCB 43
29 Dr Chang gave the following diagnosis in respect of the plaintiff’s condition:
“Scott’s diagnosis is right sided L5/S1 disc protrusion with impinging on the conjoined L5S1 nerve root. He is now post lumbar decompression and fusion L4,5 and L5,S1.
…
Scott will not be able to return to his pre-injury work as a butcher. It is anticipated he will be able to return to some other lighter duties in the future.
…
He will probably continue to suffer from some degree of back pain, but he should be able to self-manage this.”[21]
[21]PCB 44
30 In his latest report in July 2011, Dr Chang noted that the plaintiff had reduced lumbar forward flexion and lateral flexion. Dr Chang states that this was a deterioration from when he had seen the plaintiff in 2009.[22] Dr Chang said, of the plaintiff’s capacity for employment:
“I feel that Scott is not capable of working unrestricted. I feel that his work must be restricted in that he should not perform heavy physical work. Scott should not perform work which requires heavy lifting or frequent bending or twisting of his spine. The work must be flexible enough so that he has time to stretch and rest as required.
It is difficult to specify how many hours he can work, as this ultimately depends on the type of work that he does.”[23]
[22]PCB 55
[23]PCB 55
Mr Myron Rogers
31 Myron Rogers is a neurosurgeon. He performed the operation on the plaintiff on 24 January 2008. Mr Rogers prepared a medical report dated 4 March 2009 in respect of the plaintiff’s application in this case. In that report, he outlined the treatment to the plaintiff. I will not repeat that treatment here.
32 Mr Rogers’ diagnosis for the plaintiff was:
“Two level lumbar disc degeneration (L4/5, L5/S1) Right L5 nerve root compression.”
… In my opinion, Mr Courtney is currently unable and will remain unable to carry out the usual duties required for work as a butcher. The reason for this is he has persistent low back pain of varying severity. In my opinion, with appropriate vocational guidance and retraining, Mr Courtney should be able to resume some form of employment.”[24]
[24]PCB 47
33 In a later report dated 6 June 2011, Mr Rogers stated that the plaintiff had the following work capacity:
“Mr Courtney could undertake work that did not require repetitive bending and twisting of his thoraco-lumbar spine, nor should he be required to lift weights greater than 15 kgs. He could sustain a particular posture, e.g. sitting or standing, for thirty to forty-five minutes, but then would need to be able to change his posture. Mr Courtney should be able to work for two to four hours a day, as long as these restrictions are sensibly applied.”[25]
[25]PCB 53
Dr Clayton Thomas
34 Dr Clayton Thomas is a consultant in rehabilitation and pain medicine. He was engaged to examine the plaintiff for medico-legal purposes. Dr Clayton Thomas prepared a report dated 8 May 2011. Dr Clayton Thomas diagnosed the plaintiff as follows:
“He has had a 2 level spinal fusion. He has a mild to moderate level of disability from day to day. The bigger issue is the longer term. He needs to find back friendly work to avoid the development of early degenerative problems at the lowest most mobile level and in his case the L3/4 level.
From the physical point of view, he needs to find work that is at bench height, lifting up to 10 kg infrequently, 5 kg frequently between bench and chest height. He should avoid bending, lifting and twisting below waist height or above chest height except for an infrequent lift of 5 kg.
He is not fit to perform unrestricted work therefore. The restrictions that I have placed on above are due to the nature of his organic injury. I think he could work within these restrictions up to 22 hours per week.”[26]
[26]PCB 52
35 In summary, Dr Clayton Thomas was of the opinion that the plaintiff could work up to 22 hours per week but in a very restricted work environment.
Mr Daryl Nye
36 Mr Daryl Nye is a neurosurgeon. The plaintiff was examined by Mr Nye for medico-legal purposes. Mr Nye prepared seven separate medical reports covering the period 9 May 2007 until 16 December 2010. In his final report, Mr Nye took a history from the plaintiff that he was currently on Centrelink benefits and had applied for numerous job positions without success.[27]
[27]DCB 28
37 Mr Nye noted that after his examination, he concluded:
“… I again came to the conclusion was sustained related to work activity with precipitation of lumbo-sacral disc prolapse, a cause of right sided sciatica, for which appropriate surgical procedure has been undergone with improvement and resolution of leg pain. Examination revealed findings consistent with S1 nerve root involvement and there is in regard to this enduring radiculopathy, which is of minimal functional significance, of more importance is continuing lower spinal pain which is consistent with the diagnosis made, and clinical findings.”[28]
[28]DCB 29
38 In respect of the plaintiff’s work capacity, Mr Nye was of the opinion that, with restrictions, the plaintiff had capacity for suitable employment as set out in the vocational assessment. The restrictions he outlined were:
“The worker’s injury has affected capacity for employment, and I do not consider the worker could resume pre-injury employment, and restrictions in any employment situation will be required, and these should exclude a requirement for repeated bending or twisting movements of the spine, prolonged unrelieved periods of either standing or sitting, and a lifting limit of 5 kg would be appropriate and such should not be conducted from below waist level.”[29]
[29]DCB 30
Dr Michael Duke
39 Dr Michael Duke is a psychiatrist and examined the plaintiff for medico-legal purposes. This application is not a psychiatric injury case, nor did the defendant pursue the application on the basis that there was a disentanglement issue with the plaintiff concerning physical and psychiatric or psychological injury. Mr Duke described the plaintiff as being taciturn.[30] The plaintiff was otherwise found to be fit for work from a psychiatric point of view.
[30]DCB 35
Mr Michael Dooley
40 Mr Michael Dooley is an orthopaedic surgeon and examined the plaintiff on 22 December 2011. His report is dated 10 January 2012. Mr Dooley formed the following opinions:
“I believe that during the course of this work Mr Courtney sustained a right sided lumbo-sacral disc prolapse on the background of his degenerative disc disease. … The decompression component of the procedure has relieved Mr Courtney’s sciatica pain. The associated fusion surgery does not appear to have helped him. … He is fit to carry out clerical work and a range of light physical work. I do not believe that he would be able to return to his work as a butcher.
…
I believe that Mr Courtney will continue to note ongoing intermittent low back and buttock pain.”[31]
[31]DCB 42
41 On the issue of the plaintiff’s ability to return to employment, Mr Dooley reported:
“(i)Within the vocational assessment reports, many potential employment opportunities are outlined. Essentially Mr Courtney, as outlined above, is capable of carrying out any sort of clerical work and a wide range of light physical work.
(ii)Mr Courtney has not worked for over four years. When he does return to work, it would need to be on a graduated basis. I believe that he would be capable of gradually increasing his hours towards full time.
(iii)I believe that around twelve months would be the likely time frame in which Mr Courtney will be able to increase his work towards full time capacity.”[32]
[32]DCB 42-43
42 It is to be noted that the vocational report that Mr Dooley was referring to was prepared by CoWork Pty Ltd and authored by Joanne Bryant, an occupational therapist.
43 The main issue in this application was the level of capacity for the plaintiff to return to suitable employment. In that regard, the plaintiff was examined and interviewed by two occupational therapists.
Ms Suzanne George
44 On behalf of the plaintiff, Ms Suzanne George, occupational therapist, prepared a report for Evidex dated 12 January 2012. Ms George had had the advantage of seeing a report previously prepared by Joanne Bryant for CoWork Pty Ltd. The CoWork Pty Ltd report was dated 29 September 2011. After an examination of all the proposed occupations by Ms Bryant, Ms George concluded as follows:
“Conclusion
I conclude that no recognised occupation in the open labour market for which Mr Courtney is likely to qualify represents suitable employment following his injury and this situation will continue for the foreseeable future.”[33]
[33]PCB 68
45 Ms George was clearly of the view that the plaintiff was permanently incapacitated for employment in the future.
Ms Joanne Bryant
46 Ms Joanne Bryant, occupational therapist, prepared two reports for CoWork Pty Ltd. The first report was dated 29 September 2011. The second report was dated 24 January 2012 and followed a review of the report prepared by Ms George.
47 In her initial report, Ms Bryant identified four areas of potential employment for the plaintiff. The potential employment was:
(a)gym membership salesperson,
(b)betting clerk (TAB agency),
(c)trade teacher, butchering, and
(d)salesperson, meat wholesaling.
48 After reviewing the report prepared by Ms George in respect of the plaintiff in this matter, Ms Bryant withdrew her recommendation for the plaintiff to be a manager, salesperson or a TAFE teacher in butchering. Ms Bryant concluded that, in her opinion as an occupational therapist, the plaintiff had a capacity to work as follows:
“I suggest that he could work 20 hours a week at the minimum, noting that he is precluded from weekend work on those days that he is responsible for the care of his daughters.
… I confirm my initial recommendation of Agency Betting Clerk and Gym Membership Salesperson as suitable alternatives for Mr Courtney.”[34]
[34]DCB 139
49 The conclusion for Ms Bryant was that the plaintiff had two possible forms of employment, either as a TAB betting clerk or a gym membership salesperson.
Credit of the Plaintiff
50 The defendant, through Mr Simpson, did not really challenge the plaintiff’s credit in this case. Mr Duke described the plaintiff as taciturn. The plaintiff displayed a laconic attitude during the course of his evidence. He is a man of few words.
51 The main attack on the plaintiff’s credit was by way of cross-examination in relation to the entries made by Greg Murphy, the physiotherapist, in the Churinga Medical Centre notes. Mr Murphy made numerous entries in relation to physical activities that he said were reported to him by the plaintiff. The plaintiff was very direct in his evidence about those entries in relation to Pilates, bike riding, basketball, football and walking. In particular, the plaintiff denied that he had ever partaken in Pilates or bike riding. This was in direct conflict with the entries made by Mr Greg Murphy, the physiotherapist, as set out in Exhibit 2. It is difficult to determine the credit of a witness when the person making the notes – in this case Greg Murphy – is not called as a witness to be examined about those entries.
52 In assessing the credit of the plaintiff, I looked to other parts of the evidence to make an appraisal of his credibility. The first issue is that in the index of the Defendant’s Court Book, there is reference to video surveillance brought into existence for the purpose of this application. In this application, there was no video surveillance shown to the plaintiff and I conclude from that that there was no film to be shown to him which contradicted his evidence.
53 The main issue in this case is whether or not the plaintiff can obtain or wants to work. I accept that the plaintiff is eager to work. The plaintiff’s evidence on this is clear. He stated:
Q:“You’re eager to get back into the workforce, aren’t you?---
A:Yes.”[35]
[35]T 26, line 2
54 The plaintiff readily conceded that he was capable of doing part-time work. He nominated that he was capable of a capacity of 15 to 20 hours per week.[36] The plaintiff was challenged about any efforts he had made to get employment. The plaintiff stated as follows:
[36]T 56, lines 25-26
Q:“And you will leave no stone unturned until you can find a way to exercise your capacity to work. Is that fair?---
A:Yeah, well, I have been trying.
Q:What have you been trying?---
A:To get a job.
Q:Can you just tell the court?---
A:I paid APM and Skills Plus $6,000 a new[sic] to look for work for me. Plus I’ve applied for probably 80 jobs on Seek.
Q:Sorry, you’ve paid them?---
A:I have to pay them.
Q:As an agency, and as an agency they tender out, as it were, your resume - - -?---
A:And they go to – yeah, they do my resume, they go to supermarket – shopping centres, stuff like that.
Q:I suppose you understand those agencies accept that you have a capacity for work, don’t they? Otherwise they wouldn’t be tendering your - - -?---
A:Yeah, well, through Centrelinks’s advice, 15 hours a week they’re looking for me. That’s what Centrelink set a goal for me, to get 15 hours a week.
Q:But your aim is that if you could get back into the workforce - - -?---
A:My aim is to work part time.
Q:Yes, and then to move from part time to full time?---
A:I’ll see how my back holds up.”[37]
[37]T 63, lines 3-24
55 It is clear that the plaintiff is realistic and motivated to get himself into part-time work and, if that succeeds, get himself into a better position for full-time work. He is obviously limited by his health and the symptoms in his back.
56 The plaintiff is a practical man when it comes to the applications for employment. In relation to the gym membership salesperson, he stated as follows:
Q:“And that’s why I put you as a gym membership salesperson because that’s in the same are[sic], isn’t it?---
A:The problem with that job it’s commission. You’ll be on a base of about 100 bucks and then you’re going to get commission. I don’t want to live like that.
Q:This is as a gym salesperson?---
A:If you ring any gym and ask them, it’ll be commission based.
Q:But what I’m suggesting to you, you’ve got the capacity to do the work as a salesperson in a gym membership scenario, haven’t you?---
A:Well, I don’t know what the job involves. If they have to – I don’t know exactly what the job involves.
Q:Well the job involves promoting a gymnasium?---
A:I know part of it but - - -
Q:What do you think a gymnasium salesperson does?--
A:I don’t know.”[38]
[38]T 64, lines 27-31, and T 65, lines 1-10
57 I accept these answers from the plaintiff shows that he has attempted and made enquiries about this type of employment and that is corroborated by the manner in which Ms Bryant describes the payments for a gym membership salesperson set out in her report.[39]
[39]DCB 94
58 In summary, I accept that the plaintiff was doing the best he could to give fair and honest answers in his evidence. The medical opinions in this case support him in respect of the level of disability that he is enduring.
Consequences
59 In this application, the defendant’s position was that the pain and suffering consequences were not conceded.[40]
[40]T 98, lines 18-31
60 I have read the affidavits of the plaintiff sworn on 30 August 2010 and 19 January 2012. I have considered the evidence of the plaintiff contained in those affidavits. I have also heard the oral evidence given by the plaintiff and the cross-examination of him by Mr Simpson. As I have stated, I assessed the plaintiff to be a reasonably straightforward person who is taciturn and may appear to be reluctant to answer questions, in the sense that he is a man of few words. I accept him as a witness of truth. He has a stoical disposition.
61 I find the consequences the plaintiff has suffered as a result of the injury to his lower back are as follows:
·The plaintiff states that, due to the pain in his back, his sleep is disturbed. He describes the effect of that as being usually tired and under slept.[41] He also stated that when he was in a relationship, he had difficulty with intimacy due to the low-back pain.[42] I find that the consequence of disturbed sleep is a very significant consequence for the plaintiff.
[41]PCB 16, paragraph 4
[42]PCB 13
·The plaintiff suffers constant and continual pain in his lower back. The pain in his lower back extends into his buttocks. The pain can flare up for no reason at all.[43] The plaintiff described the pain as being constant and says that the pain would flare up after sitting or being too active. He says if the pain is too severe he just lies down.[44] In his evidence, the plaintiff was tested by Mr Simpson on the level of pain he suffers. The plaintiff gave the following evidence:
[43]PCB 13, paragraph 19
[44]PCB 16, paragraph 3
Q:“But do you accept that you’re mild to moderately affected by your back?---
A:I think I’m a lot affected. I’m in pain every minute but I breathe.”[45]
[45]T 67, lines 14-16
I accept that the plaintiff is in constant pain and is limited by his pain. The fact that he does not take medication does not lessen the impact of the pain on his life. I accept that it is a very considerable consequence for him.
·The plaintiff gave evidence both in this application and in his affidavits that his pain medication is limited to Panadol and Nurofen.[46] In his evidence, he explained his position in relation to medication as follows:
[46]PCB 16
Q:“But you’re not on any medication as such are you at the moment?---
A:No, I don’t think so, I don’t want to be sick, I don’t want to be dependent on drugs.
Q:So you’re managing without being dependent on any medication, prescription or over the counter, is that right? There’s no medication?---
A:Just a bit of Panadol and Nurofen.
Q:Panadol and Nurofen which is over the counter product?---
A:Yes.
Q:Apart from that you’re not on any medication?---
A:I stopped after a week.
Q:Sorry?---
A:I stopped after a week after the operation.”[47]
I accept the plaintiff has taken a certain view of being addicted to painkilling medication and has decided to self-manage the pain as best he can. I do not accept the fact that he does not take more medication indicates that his pain levels are not significant.
·The plaintiff, as a result of his low-back injury and subsequent surgery, has a distinct lack of mobility in his lower back. The lack of mobility and flexibility in his back has impacted upon him, in that he can no longer go for a run, play indoor cricket, play fully with his children or work in his old job. All of these aspects arising out of his lack of mobility have a very serious consequence for him. He described playing indoor cricket as a passion of his.[48]
·The plaintiff, as a result of this injury, has lost his career and ability to work as a butcher. It is to be remembered that the plaintiff worked his way up from a part-time employee as a cleaner boy in the meat rooms at Coles and Bi-Lo. He advanced in his career to be the meat manager at various Coles supermarkets. It was a position that he had worked in from his early teenage years up until the time of his injury. I consider this loss of career and employment to be a very serious consequence for him. I find this consequence not on the basis of an economic loss, but on the basis that he has lost the enjoyment of his employment.
·The plaintiff is having conservative ongoing medical attention. He continues to have the PEEK metal cage in his back.[49] I find the fact that the plaintiff has to retain the metal within his back a serious consequence for him.
[47]PCB 66, lines 19-28
[48]T 44, lines 2-3
[49]T 76, lines 3-9
62 I conclude that, when gathered together and considered as a whole, the consequences outlined above amount to what can be fairly described as being more than “significant” or “marked” and being “at least very considerable” pain and suffering consequences for the plaintiff.
Loss of Earning Capacity
63 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, he must establish that:
(a) at the date of the hearing, the plaintiff has a loss of earning capacity of 40 per cent or more pursuant to s.134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently: s.134AB(38)(e)(ii).
64 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
65 The former must be calculated by reference to the six-year period specified in s.134AB(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.
66 The defendant submitted that the “without injury” earnings at the 60 per cent rate was $30,000 per annum. The plaintiff’s submission on the 60 per cent figure for “without injury” earnings was $34,000 per year. I find that, based on the income earned by the plaintiff in the period prior to his injury, the appropriate 60 per cent “without injury” earnings figure is $30,000 per annum. The Act does not allow indexation of “without injury” earnings that was relied upon by the plaintiff to calculate the figure of $34,000.[50]
[50]Roleff v Chubb Insurance Company of Australia Pty Ltd [2011] VSCA 21
67 The evidence in this case was that the two possible forms of employment for the plaintiff were either as a gym membership salesperson or a betting clerk at a TAB agency.
68 I accept that the plaintiff could work a maximum of 20 hours per week for the foreseeable future based on his evidence and the evidence of the treating medical practitioners. The fact that the plaintiff has not worked for almost five years since the time of his surgery is a significant matter in making this assessment. Both Mr Nye and Mr Dooley do not say that the plaintiff is ready to work full-time at this stage.
69 Dr Clayton Thomas was of the opinion that the plaintiff could work as many as 22 hours per week.[51] Mr Myron Rogers was of the opinion that the plaintiff could work as many as 20 hours per week as long as restrictions were sensibly applied.[52] Dr Chang was of the opinion that it depended on the work as to how many hours he could work.[53]
[51]PCB 52
[52]PCB 53
[53]PCB 55
70 I accept the plaintiff when he nominates 15 to 20 hours as the appropriate amount of part-time work he could perform. Based on that evidence referred to above, I make the finding that the plaintiff could work in a part-time capacity as many as 20 hours per week and that this restriction of hours is for the foreseeable future.
71 Mr Simpson appropriately conceded that if the plaintiff was to work as a gym membership salesperson, he would have to be working 30 hours per week in order to obtain more than 60 per cent of the “without injury” earnings.[54] Based on my findings of 20 hours per week, the gym membership salesperson job does not offer sufficient remuneration for those hours to achieve 60 per cent of “without injury” earnings.
[54]T 91, lines 17-27
72 The average per hour remuneration for the gym membership salesperson was $25.04.[55] The plaintiffs accepted capacity of 20 hours per week would return a gross “after injury” earnings figure of $26,100.00 per annum. This is a loss of earning capacity of more than 40 per cent of “without injury” earnings.
[55]DCB 94-95
73 The only other employment that was deemed to be suitable by the experts in occupational therapy was the betting clerk at the TAB job. Mr Simpson again, on behalf of the defendant, sensibly conceded that the plaintiff would have to work in the order of 32 to 33 hours per week to achieve the greater than 60 per cent of “without injury” earnings barrier.[56] I find that the plaintiff, if employed as a betting clerk at a TAB, would only be able to work 20 hours per week and hence he does not reach the 60 per cent level of “without injury” earnings.
[56]T 93, lines 1-9
74 The average hourly rate for a betting clerk position is $21.14 gross per hour.[57] The plaintiff’s accepted capacity of 20 hours per week would return a gross “after injury” earnings figure of $22,000. This is a loss of earning capacity of more than 40 per cent of “without injury” earnings.
[57]DCB 96
75 I conclude, based on the evidence of the plaintiff and the treating medical practitioners, 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.
Conclusion
76 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring proceedings at common law pursuant to s.134AB(16)(b) of the Act to recover damages for bodily injuries, for pain and suffering and loss of earning capacity which has arisen out of his employment with the defendant in or about October 2006.
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