Cuturic v Spotless Facility Services Pty Ltd
[2018] VCC 889
•19 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST | Case No. CI-18-00070 |
| Ferida Cuturic | Plaintiff |
| v | |
| Spotless Facility Services Pty Ltd | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 & 14 June 2018 | |
DATE OF JUDGMENT: | 19 June 2018 | |
CASE MAY BE CITED AS: | Cuturic v Spotless Facility Services | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 889 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – lumbar spine
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Judgment: Leave granted to commence a proceeding claiming damages with respect to the pain and suffering; Leave refused to commence a proceeding claiming damages with respect to pecuniary loss
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Forsyth with Mr J Angenent | Patrick Robinson & Co. |
| For the Defendant | Mr J Gorton QC with Mr M Hooper | IDP Lawyers |
HIS HONOUR:
1.In this proceeding the plaintiff seeks leave to commence an action claiming damages against the defendant for the pain and suffering and pecuniary loss consequences of an injury sustained by the plaintiff to her lumbar spine in the course of her employment with the defendant.
2.In the proceeding, the parties rely upon two affidavits sworn by the plaintiff on 3 August 2017 and 24 May 2018 and an affidavit sworn by the plaintiff’s daughter on 24 May 2018 together with medical and like reports tendered by them and the specific exhibits which have been marked.
3.In addition the plaintiff gave viva voce evidence and was cross-examined.
4.There is no issue that the plaintiff sustained a compensable injury in the course of her employment to her lumbar spine and that the incapacity associated with that injury is such that it meets the statutory definition of serious in so far as that definition pertains to the plaintiff’s right to commence a proceeding for pain and suffering damages.
5.Neither is it an issue:
· That the plaintiff had an exemplary history of employment which involved her working as a cleaner at the Alfred Hospital in the course of her employment with number of sequential contractors to the hospital who provided cleaning services, which employment continued between 1985 and 24 November 2015;
· That at the time at which the plaintiff ceased her employment with the defendant she was 67 years of age;
· That in the last full year of her pre-injury employment with the defendant the plaintiff earned the gross wage of $66,390.
6.Given the plaintiff’s impressive work history and the age to which the plaintiff had worked up until the time of her injury in unrestricted work, I am satisfied that the plaintiff has demonstrated that she possessed an extraordinarily commendable work ethic.
7.Indeed, it is not in issue that but for the intervention of the injury the subject of this application the plaintiff would have continued to work at least to the age of 70 in full-time unrestricted work as a cleaner.
8.Two issues are required of me in determining whether the plaintiff is entitled to the leave sought in this proceeding namely:
(i)firstly, to determine whether the evidence establishes that the plaintiff would have continued to work in a part-time capacity after attaining the age of 70; and
(ii)secondly, to determine whether the plaintiff has established that the loss of any capacity sustained by her by reason of the injury the subject of this proceeding meets the statutory definition which entitles her to commence a proceeding claiming pecuniary loss damages.
9.Whilst the first issue involves one of fact-finding and the second one of statutory interpretation, it is clear that the issues are nonetheless significantly linked.
Finding as to whether the plaintiff has established on the balance of probabilities that she would have continued to work after the age of 70.
10.The plaintiff was born on the 12 November 1947. She attained the age of 70 on 12 November 2017.
11.The plaintiff’s affidavit dated 3 August 2017 contains no suggestion that she had any plan to work in 2018 after she had attained the age of 70 years at the end of 2017.
12.In that affidavit:
(i)At paragraph 68 the plaintiff spoke of a plan to retire in 2018 and to travel on pilgrimage to Mecca but also to some extent to travel more widely;
(ii)At paragraph 74 the plaintiff stated that she had intended to continue working until 2018;
(iii)At paragraph 78 the plaintiff commented that she believed that she would have continued working to 2018 had she not suffered injury commenting:
“I have suffered future economic loss/loss of earning capacity of approximately $69,700.”
thus, as I interpret her evidence, fixing her economic loss as concluding with her retirement in 2017.
13.On 19 April 2018 prior to swearing her most recent affidavit the plaintiff attended a consulting medical examination with a psychiatrist, Dr Taklyar, who obtained the history in the presence of the plaintiff’s daughter that the plaintiff:
· had hopes “to continue working long-term”;
· wanted to eventually “reduce her hours to working 2 or 3 days per week”.
14.Subsequently, in her affidavit dated 24 May 2018 the plaintiff qualified her position as to her intended date of retirement commenting in paragraph 6:
“in my previous affidavit I referred to my plans to retire in 2018 and travel the world. This was my ideal when I was approaching 70 and still working. I had considered doing part-time work, after I had enjoyed a travel experience perhaps three days a week. I was certainly going to continue to do voluntary work in our community. These options have now been denied to me because of my injuries and how they have affected me.“
15.In my opinion the effect of this evidence by the plaintiff is to do no more than identify the possibility that the plaintiff may undertake part-time work after she attained the age of 70 years, rather than a positive intention to do so.
16.Whilst it is put on behalf of the plaintiff that the history provided to Dr Takyar on 19 April 2018 is probative of the plaintiff’s intention to undertake part-time employment after her retirement, I do not accept that position given the fact that the plaintiff had the opportunity to confirm that statement in her subsequent affidavit and did not do so.
17.In her affidavit dated 24 May 2018 the plaintiff’s daughter confirmed that she had read her mother’s affidavit and agreed with the contents of it.
18.I am satisfied in circumstances in which there was no challenge to the content of that affidavit that I should accept that affidavit as being corroborative of the plaintiff’s affidavit sworn the same day. It follows however that that corroboration on this issue extends only to the statement of the plaintiff had considered doing part-time work upon her retirement in 2018.
19.It follows that before the plaintiff gave viva voce evidence in the course of the proceeding there was no evidence which established on the balance of probabilities that she would have continued in part-time work after she attained the age of 70.
20.In the course of her viva voce evidence the plaintiff said that in the absence of having sustained the injury the subject of this application she would have:
(i) ceased work with the defendant at the end of the 2017 financial year;
(ii) travelled for a month or so for the purpose of undertaking a pilgrimage with her sister; and
(iii) thereafter applied for part-time work with the defendant.
21.The plaintiff explained her motivation to continue in part-time employment after her 70th birthday being that she derived great satisfaction from earning her living and that she loved to work with people.
22.Although the plaintiff was challenged as to this evidence on the basis that she had no real financial reason to work, she maintained her position that she would have continued in part-time employment beyond her 70th birthday.
23.The defendant points to the plaintiff’s financial position in 2018 is providing a good reason for the plaintiff making a decision to retire and not to return to part-time work.
24.I am satisfied that I should give little weight to that argument.
25.In reality, having regard to the plaintiff’s long history of employment I am satisfied that the plaintiff continued in her employment well after her 65th birthday (by which time she did have a source of independent income through her development of two units and the rental income she derived from that source), because she enjoyed her work and the social relationships associated with that work, and that any decision made by the plaintiff to return to part-time work would have been made primarily taking into account these factors.
26.That having been said, an issue does arise in my mind arise as to the reliability of the plaintiff’s evidence upon the question of her intention to continue in part-time employment after reaching the age of 70 given:
(i) the certainty with which the plaintiff, in the course of her viva voce evidence, described her intention as being always to return to part-time work after she had completed her plan to travel in 2018;
(ii) the discrepancy between the plaintiff’s viva voce evidence on that issue and the statements made by her in her affidavits.
27.For the following reasons I am not persuaded that the plaintiff has made good her onus to establish that but for her injury she would have continued in part-time employment after she attained the age of 70:
(i)Firstly, the evidence by the plaintiff in her first affidavit is unequivocal as to her intention to retire at or about the time she reached the age of 70 and to limit her claim with respect to pecuniary loss to that period.
(ii)Secondly, I interpret the plaintiff’s position in her second affidavit to raise only as a possibility of the fact that she might have returned to work. My view about that statement is confirmed by the contrast between the statement in the plaintiff’s second affidavit that she was “certainly going to continue to do voluntary work in our community” but had only “considered doing part-time work, after I had enjoyed the travel experience.”
(iii)Thirdly, the certainty with which the plaintiff in her viva voce evidence expressed her unwavering intention to continue in part-time employment after attaining the age of 70 makes it unlikely in my opinion that the plaintiff would have made the contrary statements upon that issue in her affidavits if she indeed held such an intention and raises issues as to the reliability of the plaintiff’s viva voce evidence on this point.
28.For these reasons it follows that in undertaking the statutory analysis required of me in this instance I will do so on the basis of my findings that:
(i) I am not satisfied that the plaintiff has established that she would have continued to work after her retirement at the end of the 2017 calendar year;
(ii) I am not satisfied that as at this date the plaintiff would be earning income by engaging in part-time employment.
The interpretation of s325(2)(e) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act“)29.Section 325(2)(e)(ii) of the Act imposes a duty upon the plaintiff in this instance to establish that she has suffered a loss of earning capacity which: “will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more.”
30.It follows that in this instance the plaintiff must establish that at the present date the effect of the incapacity for work the subject of her compensable injury is to give rise to such a loss of earning capacity.
31.There is no issue that section 325 (2) (j) of the Act requires the assessment of the economic consequences to the plaintiff of the incapacity the subject of this application to be made at the present time, and accordingly that the 40% test imposed by section 325(2)(e) (ii) must be met as at the date of the hearing of this application.
32.I am satisfied that section 325(2)(e) (ii) operates so as to require the plaintiff in this instance to establish that the plaintiff:
“will, after the date of the decision or hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more.”
33.In the circumstances of the present case given the failure by the plaintiff to establish on the balance of probabilities that she would have continued to work after her retirement age, it follows that I am not satisfied that the plaintiff has established:
(i) that she would have been earning any income at the present time;
(ii) that the incapacity for work with which the plaintiff has presented since the onset the injury which caused her to cease her employment with the defendant in 2015:
a) operates at the present time; or
b) will operate in the future;
so as to be productive of any financial loss to her.
34.It follows that the plaintiff:
(i)has established her entitlement to an order allowing her to commence a proceeding claiming damages with respect to the pain and suffering consequences arising by reason of the injury and incapacity the subject of this application;
(ii)has not established her entitlement to an order allowing her to commence a proceeding claiming damages with respect to the pecuniary loss arising by reason of the injury and incapacity the subject of this application.
35.I will hear the parties as to the order which should be made in this instance and also upon the issue of costs.
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