Dalrymple v Waco Kwickform Limited
[2017] VCC 1866
•15 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03995
| LEIGH WAYNE DALRYMPLE | Plaintiff |
| v | |
| WACO KWICKFORM LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 October 2017 | |
DATE OF JUDGMENT: | 15 December 2017 | |
CASE MAY BE CITED AS: | Dalrymple v Waco Kwickform Limited & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1866 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – significant exacerbation of pre-existing dysthymic disorder relevant to claimed injury – credit – pain and suffering and loss of earning capacity damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Richter v Driscoll [2016] VSCA 142
Judgment: Leave granted to the plaintiff to bring proceedings at common law to recover damages for pain and suffering and pecuniary loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr G Wicks | Maurice Blackburn |
| For the Defendant | Mr P D Elliott QC with Mr A Saunders | Minter Ellison |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant on 22 July 2011.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clauses (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function;
…
(b)permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The body function relied upon in this application is injury to the lumbar spine.
6 The mental or behavioural disturbance relied upon is significant exacerbation of a pre-existing dysthymic disorder, relevant to the claimed injuries.
7 The plaintiff relied upon two affidavits, sworn 12 November 2015 and 15 September 2017. I have not summarised the plaintiff’s affidavits or evidence, however, I will refer to the relevant evidence in my reasoning.
8 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
9 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
10 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
(b)“the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of his impairments to the lumbar spine in relation to “pain and suffering” and “loss of earning capacity” must be “serious”; that is, “when judged by comparison with other cases in the range of possible impairments … can fairly be described as being more than significant or marked, and as being at least very considerable”.[4]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
11 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]Section 134AB(19)(b) and 38E of the Act
(a) that at the date of hearing, he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[6]
[6]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[7]
[7]Section 134AB(38)(e)(ii) of the Act
(c) that the conditions set down in s134AB (38)(e)(i) and (ii) of the Act are cumulative;
(d) that even with rehabilitation and retraining, he will still sustain a loss of earning capacity 40 per cent or more.[8]
[8]Section 134AB(38)(a) of the Act
12 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
13 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between impairment suffered by the plaintiff and the range of possible impairments.
14 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[10]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[11]
[10]Section 134AB(38)(j) of the Act
[11] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
15 Counsel for the defendant submitted that there are a number of issues before the Court:
(i)the plaintiff’s credit;
(ii)the plaintiff’s ability to return to work was affected by a number of unrelated issues, namely:
§ a history of drug taking
§ alcohol abuse
§ lack of motivation
§ a criminal record, which provides an obstacle to re-employment.
(iii)the plaintiff acted unreasonably in attempts to participate in rehabilitation in accordance with s134AB(38)(g) of the Act;
(iv) whether the plaintiff satisfies the statutory test for “serious injury” in respect to the lumbar spine and or his mental condition.
The Plaintiff’s evidence
16 The plaintiff is thirty-four years of age. He is the father of three children. He had been in a long-term relationship for approximately five years. He and his partner live separately, but he helps regularly with the children. Currently, he is living with his grandmother.
17 The plaintiff completed Year 11 at Traralgon Secondary College. Apart from short training courses to gain tickets used in work, he has not undertaken any further education.
18 The plaintiff’s previous work history has been physical manual work and has required him to be physically fit. He has limited transferable skills. From time to time he had aches and pains due to the physical nature of his work with the defendant, which he commenced in about June 2009. He had worked as a yardman. His work involved servicing scaffolding and other equipment used in scaffolding. He had worked long hours from approximately 7.30am to 4.00pm each day. Sometimes there was overtime, and there was also work on Saturdays. Over time, he began to experience back pain from time to time, but was able to continue doing his work with rest.
19 On 22 July 2011, he was given the task of working by himself servicing girder clips, also called H-clamps. His task was to maintain and service entire pallets/cage-loads of these clamps. He spent the whole day next to the pallet, bending over the cage, picking up clamps, which are reasonably heavy, and cleaning them with a wire brush, spraying lubricant on them and then re-stacking them. He began to experience pain in his back. It started in the morning. He completed his work at his regular time and went home. He had trouble moving and was in pain. He sought medical treatment and has not returned to work since July 2011.
The credit of the Plaintiff
20 The plaintiff was a man of few words. He mumbled and had poor articulation as a result.
21 Whilst the plaintiff said he had studied Year 11 at school, I note that he left home at the age of fourteen and a half, and had reported mental health and coping issues to medical witnesses from an early age. He reported to medical witnesses that he had been involved in alcohol and polysubstance abuse. He agreed that his drug taking and alcohol abuse did not stop him from working prior to his injury.
22 In particular, the plaintiff reported that he had suffered from periods of depression and anxiety from his middle teens and twenties. He had received treatment on occasions from his general practitioner and he consulted a psychologist.
23 The plaintiff had problems with the law, both prior to the work injury and subsequent. I note that some of the convictions to which he pleaded are serious offences. To date the plaintiff has avoided any custodial sentences. The fact that the plaintiff has a criminal record does not necessarily mean that his credit is in issue. In fact, the plaintiff’s criminal record did not relate to offences of dishonesty. Further, I was informed that the plaintiff had pleaded guilty to the more recent charges.
24 I accept the submission of counsel for the plaintiff and concluded that for this plaintiff, giving evidence was a particularly difficult task.
25 I accept that on occasions the plaintiff gave inconsistent evidence to medical witnesses as to his use of drugs and alcohol. However, I did not form the opinion that the plaintiff was trying to mislead the witnesses. The plaintiff had reported problems with his memory to Dr Tagkalidis, who accepted that the plaintiff had short-term memory impairment as a direct result of his emotional disturbance. Further, on occasions the plaintiff was being asked questions about what he had told or been advised by medical witnesses on some occasions six years ago.
26 On occasions the plaintiff said that he could not remember matters. Counsel for the defendant submitted that there were clear examples of the plaintiff forgetting something that he might be expected to be able to recall. For example the plaintiff was cross-examined about what he would have reported to the Latrobe Hospital in October 2011. The plaintiff said that he did not really remember going to the hospital. The plaintiff’s attendance was six years ago. I do not regard it as unreasonable that he could not recall attending the hospital.
27 Another example was his failure to attend Odyssey House, a drug and alcohol centre. The evidence was that in January 2014, the plaintiff’s general practitioner had referred him to Odyssey House and the plaintiff did not attend. In cross-examination, the plaintiff was unable to recall this. Counsel for the defendant said this was another example of the plaintiff conveniently forgetting something he might be expected to recall, and which it might be thought he would regard as unhelpful. I do not accept the defendant’s submission on this point. The plaintiff presented as having a very limited education and capacity. Based on his presentation in Court, I do not infer that the plaintiff was attempting to deceive or mislead the Court on this point. Further, the evidence is that the plaintiff underwent a pain management course at Frankston, but due to homesickness, did not complete the course.
28 The plaintiff’s evidence was that he was no longer able to have access to medication which assisted him with the constant pain he was suffering. As a result, he was relying on illegal drugs.
29 Counsel for the defendant suggested that the plaintiff was “doctor shopping”. The evidence of the plaintiff is that he had been a patient with the same clinic for many years. The doctor he preferred to consult left the area, moving to Frankston. As a result, the plaintiff consulted him at his new practice in Frankston. That doctor was providing the plaintiff with OxyContin medication. It became apparent that he was no longer able to provide the medication. As a result, he referred the plaintiff to a specialist who provided limited medication. The evidence is that the plaintiff has been referred to Dr John Monagle at the Latrobe Hospital in Berwick and has had to wait a year for the appointment, and referred him to a pain management course.
30 Overall, I formed the impression that the plaintiff was doing the best he could, given his limited capacity and education. Where there is conflict in the evidence, I will be guided by the independent evidence of the witnesses. I will also be influenced by what the plaintiff was reporting at any particular time.
Loss of earning capacity – the narrative test
The physical injury
31 The plaintiff’s claim is that he suffered injury over the course of his employment with the defendant and, in particular, on 22 July 2011.
32 All of the medical witnesses who expressed a view as to the physical injury accepted the plaintiff’s injury was work related. Accordingly, I accept the medical evidence that the plaintiff suffered a work-related injury to his lumbar spine.
33 The injury was variously described by the medical witnesses as:
·Work-related discogenic lower back pain and Chronic Pain Syndrome (Dr Pavlo Korol).[12]
·Advanced degenerative changes at the L5-S1 disc with substantial loss of disc height and broad-based disc protrusion posteriorly causing some foraminal narrowing bilaterally, a Chronic Pain Syndrome; that is, a complex pain diagnosis which has exceeded more than twelve months (Dr Michael Brighton-Knight, orthopaedic surgeon).[13]
·A right paracentral disc bulge at L5-S1, and L5-S1 nerve root irritation (Dr Michael McLean, sports medicine physician).[14]
·Discogenic low-back pain without neurological compromise (Ms Anita Huguenin, senior clinician physiotherapist).[15]
·A right paracentral posterior disc protrusion that mildly impinges the existing right L5 and S1 nerve root that is consistent with his clinical presentation (Mr Paul Hill, physiotherapist).[16]
·Mechanical injury to the lumbar spine and aggravation of degenerative disease of the lumbar spine with right radicular symptoms, but no evidence of radiculopathy on examination (Dr Joseph Slesenger, occupational physician).[17]
·Lumbar spondylosis on the background of a disc bulge at L5-S1 level contacting the right S1 nerve root and L5-S1 facet joint osteoarthritis (Mr Thomas Kossmann, orthopaedic surgeon).[18]
·A soft-tissue injury suffered on 22 July 2011, with referral of pain to the right lower limb, with no evidence clinically of associated radiculopathy but no longer suffering a soft-tissue injury (Dr Ian Taubman, consultant physician in general medicine).[19]
·A right-sided lumbosacral disc prolapse (Mr Michael Dooley, orthopaedic surgeon),[20] whose ongoing pain and disability are greater than one would expect to see for his organic condition.
[12]Plaintiff’s Court Book (“PCB”) 30
[13]PCB 35
[14]PCB 39
[15]PCB 41
[16]PCB 47
[17]PCB 68
[18]PCB 76
[19]Defendant’s Court Book (“DCB”) 20-21
[20]DCB 55
34 It is necessary for me to consider the plaintiff as at the present time.
· The up-to-date medical evidence in respect to the plaintiff’s capacity for employment was expressed by Dr Slesenger, occupational physician, Mr Kossmann, and Mr Dooley, orthopaedic surgeons, and Dr Taubman, physician.
· In January 2017, Dr Slesenger imposed restrictions upon the plaintiff which were:
(a) no repetitive bending or twisting;
(b)sit and stand as required;
(c)no push, pull, carry or lift over 5 kilograms;
(d)a residual capacity of four hours a day, four days per week.[21]
[21]PCB69
35 Dr Slesenger considered, given the plaintiff’s poor response to treatment to date, it was his opinion that it was unlikely that the plaintiff would make significant alterations in his symptoms in the foreseeable future. He said that taking into consideration the plaintiff’s current residual location (Traralgon), his current symptoms and functional limitations, his past occupational experience, his lack of computer skills and his lack of transferable qualifications, he was of the opinion that the plaintiff is unlikely to return to work in a role for which he has suitable training and experience on a permanent, sustained, consistent and reliable basis. He said the plaintiff’s prognosis must be guarded.[22]
[22]PCB 69
36 In June 2017, Mr Kossmann imposed restrictions upon the plaintiff of:
·not being able to walk long distances
·not walking on uneven ground
·not walking upstairs and downstairs, on inclines and declines, climb up and down ladders, kneel or squat, or carry heavy items weighing more than 5 kilograms.[23]
[23]PCB 77
37 Mr Kossmann said the plaintiff’s restrictions are permanent. Further, the plaintiff had no work capacity, and his prognosis regarding his lumbar spine is poor. He said the plaintiff was 100 per cent incapacitated.[24]
[24]PCB 77
38 In August 2017, Mr Dooley said that it was very important for the plaintiff’s overall wellbeing that he return to suitable work. Mr Dooley said the plaintiff had a physical capacity to carry out light physical work and clerical duties. Further, return to suitable work would need to be on a graduated basis, but the plaintiff would have a capacity to work towards full-time employment. He thought the plaintiff had a physical capacity to work as a leaflet deliverer, night auditor/duty supervisor and retail sales assistant. He said the plaintiff’s ability to work in stores would depend on the amount of lifting, bending, et cetera, required. It was his view that the plaintiff’s psychological reaction to his situation has been the major factor in him not returning to work.[25]
[25]DCB 59-60
39 In February 2017, Dr Taubman, physician, imposed restrictions of:
·no repetitive bending or lifting of weights exceeding 5 kilograms
·pushing and pulling restrictions
·any activity that involves repetitive work above shoulder level.[26]
[26]DCB 22
40 Dr Taubman said the plaintiff was unable to return to pre-injury duties. He had examined the suitable employment options identified in the APM Vocational Assessment Options of 2013 and 2014. He considered the plaintiff had a present capacity to fulfil the role of trade measurement officer, safety inspector, inventory and supply officer (trade warehouse), vocational education teacher, and scaffolding and rigging trainer, on full hours. He also thought the plaintiff would be fit to fulfil the role of carpark attendant, call centre worker, car salesman, petrol station attendant, light factory process worker and despatch clerk.[27]
[27]DCB 22-23
41 I accept that the medical evidence is that the plaintiff cannot return to pre-injury work, which was manual physical work, which is permanent. Mr Dooley and Dr Taubman said the plaintiff can perform alternate duties, and imposed restrictions. The only occupational expert to express a view was Dr Slesenger. Dr Slesenger is the expert in work capacity. The restrictions he imposed were similar to the restrictions imposed by Mr Dooley and Dr Taubman. However, Dr Slesenger imposed restrictions of sitting and standing as required and said he thought the plaintiff could only work four hours a day, four days per week.[28]
[28]PCB 69
42 The defendant relied upon an APM Vocational Assessment Reports dated 9 September 2013 and 17 June 2014.[29] In addition, the defendant relied upon a CoWork Pty Ltd (“CoWork”) Vocational Assessment Report dated 14 June 2017.[30] I accept the APM Vocational Assessment Reports are outdated, and of little assistance. Further, a number of jobs identified were outside the plaintiff’s capacity, experience and expertise.
[29]DCB 61-79
[30]DCB 80-106
43 Ms Joanne Bryant of CoWork said that in the first instance, the plaintiff should undertake a transitional job that helps him become reconditioned through exercise (regular walking) as a leaflet deliverer. With some training, the plaintiff could go into hospitality as a night auditor, with the potential of gaining valuable experience from his mother’s own hotel business. Ms Bryant said that job vacancies reveal opportunities in warehousing as a pick/packer or as a retail sales assistant in hardware of plumbing sales, all of which the plaintiff could do. Once he re-established himself in the workforce, he may be sufficiently motivated to broaden his outlook and consider undertaking Certificate IV-level training in youth work, where there is such a high demand in the Latrobe Valley.[31]
[31]DCB 84
44 Mr Dooley considered the report of CoWork. He said the plaintiff has the physical capacity to perform work as a leaflet deliverer, night auditor/duty supervisor and retail sales assistant. Further, his ability to work in stores would depend on the amount of lifting, bending et cetera required. He could perform light physical work and clerical duties in general. Dr Taubman did not review the report of CoWork.
45 I shall consider the employment opportunities suggested by Ms Bryant. As to work as a leaflet deliverer, Ms Bryant identified this position as a “transitional job” that assists the plaintiff to become reconditioned through exercise (regular walking).[32] I do not consider this job as suitable, as I have to be satisfied that the plaintiff has a loss of earning capacity of 40 per cent or more. Based on the agreed figure, the plaintiff’s “without injury” earning capacity was $76,403. The 60 per cent figure is $45,841. A leaflet deliverer has an annual income of $33,280 with 9,290 of the jobs being part time. Furthermore, I could not be satisfied that the job was permanent.
[32]DCB 84
46 Ms Bryant suggested that with some training, the plaintiff could perform the position of night auditor.
47 The duties of a night auditor are as follows:
·determine work requirements and allocate duties to housekeepers, porters and door persons
·confer with managers to coordinate activities with other organisational units
·maintain attendance records and rosters
·explain and enforce safety regulations
·oversee the work of the unit and suggest improvement and changes
·confer with workers to resolve grievances
·perform front office and hotel reception duties
·issue security passes to authorised businesses and give directions
·monitor alarms and contract supervisors, police and fire brigade, by radio or phone, if security is breached or fire is detected.[33]
[33]DCB 95
48 My assessment of the plaintiff in the witness box is that the plaintiff would not be able to perform any of those functions. Those functions are outside the plaintiff’s capacity. I do not accept that even with training, the plaintiff would have capacity to perform those functions. Those functions are in part clerical, supervisory and require significant experience in a personal capacity. All are areas outside the plaintiff’s experience or expertise. I consider the duties of a night auditor theoretical only. The fact is the plaintiff has limited education, very basic experiences in life, and has only ever performed physical work. The plaintiff’s evidence was that he has never worked in sales, he has poor people skills, he has never organised or managed people, he has never had to respond to complaints, and whilst his reading skills are not too bad, his writing skills and use of computers are not good.[34] I do not accept that work as a night auditor is suitable work.
[34]Transcript 78-79
49 The typical duties of a picker/packer are as follows:
·obtain supplies of products and assemble bags, package folders and cartons
·pack containers and bags with products, count, weigh, measure and adjust quantities
·wrap protective material around product, seal and attach pre-printed labels
·count and place bags and packages onto trays and racks and into shipping cartons
·record information such as numbers, weight, times and dates
·monitor the filling of containers and adjust machines to maintain volume and seal quality
·monitor the supply and quality of containers and contents of holding tanks
·check the cleanliness and operations of machines, equipment and containers.[35]
[35]DCB 96
50 The physical demands of the occupation are likely to exclude the plaintiff, as it is a standing job with seated breaks offered during meal and tea breaks. Dr Slesenger imposed restrictions of being able to sit and stand as required. I accept the job is unsuitable for this particular plaintiff.
51 Counsel for the defendant submitted that the plaintiff should be able to obtain employment through his mother, who manages a bar in Traralgon. The plaintiff’s evidence is that bar work involves heavy lifting, for which he is not suited. He has never worked in a bar, nor has his mother ever suggested that he could work in the bar. I accept that the plaintiff would be unsuited to bar work. He could not perform the physical tasks of the work. He has never been engaged in sales work. He has poor people skills. Even with training, I am not satisfied that bar work is a realistic option for this plaintiff.
52 Pursuant to ss38(g) of the Act, I am required to consider issues of retraining and rehabilitation.
53 In relation to rehabilitation, the plaintiff has attended a pain management course at Frankston. However, after one week, he ceased the course due to homesickness. The evidence is that he proposed to attend a rehabilitation program closer to home at Traralgon. The rehabilitation physician was to make a referral to the Traralgon Rehabilitation Unit. The evidence is that the plaintiff has had to wait approximately twelve months to be examined by a specialist, Dr Monagle. It was unclear on the evidence whether the plaintiff required a referral from a specialist for a pain management course. What is clear is the defendant’s insurer approved the course in November 2016. The plaintiff was criticised for not attending Odyssey House, which was suggested by his medical practitioner.
54 There was no evidence that the plaintiff had attempted any retraining between ceasing work with the defendant and now. There was no suggestion or evidence that the defendant offered the plaintiff retraining.
55 Counsel for the plaintiff said the best counsel for the defendants could argue was that the plaintiff had a “theoretical” capacity for work tasks.
56 In Richter v Driscoll,[36] the Court of Appeal said that return to work in employment requires more than a physical capacity to engage in a task or tasks. The court said:
“Second, we agree with the applicant’s submission that the word ‘employment’ carries with it the idea, as King CJ put it in Philmac, of return to work ‘as a settled or established member of the wage earning workforce’. In Philmac, the legislation simply referred to return to work. Even so, King CJ in substance found within that concept an implication of return to work in employment (which is expressly stated in the definition now under consideration); and return to employment in what might be described as a meaningful way, so as to obliterate a continuing need for weekly payments of compensation.”[37]
[36][2016] VSCA 142 at paragraph [75]
[37]Richter v Driscoll [2016] VSCA 142 at paragraph [75]
57 I accept the submission of counsel for the plaintiff that the Court of Appeal in Richter stated that it was necessary to look further than the medical restrictions or the job tasks usually put forward by the doctors and consider each of the elements of suitable employment. First, if the nature of the work is incapacity and the details provided in medical information, including, but not limited to, the Certificate of Capacity supplied to the worker. It was accepted by the medical evidence that the plaintiff cannot perform his pre-injury employment and he has substantially reduced physical tolerances which include sitting, standing, lifting, manual handling and going up and down stairs. The second element of suitable employment is age, education, skills and work experience. In this case, the plaintiff is aged thirty-five, having completed with a Year 11 at Traralgon Secondary School. He has obtained tickets used in his work. He has not undertaken any further education. The plaintiff’s work history has always been manual work.
58 I accept counsel for the plaintiff’s submission that the plaintiff has a theoretical capacity for work tasks at best, which ranges between no hours and sixteen hours per week. Further, I accept that in a real and practical sense, there is no one who would employ him.
59 In view of the evidence as a whole, I accept the plaintiff has no capacity for pre-injury or suitable employment. It is not necessary for me to enter into an analysis of wage rates.
60 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[38]
[38]Advanced Wire & Cable Pty Ltd & Anor v Abdulle (supra)
61 Given the foregoing medical evidence, I am satisfied that the plaintiff cannot return to work. The plaintiff is aged thirty-five years. He has been out of the workforce for six years. The plaintiff has only ever performed physical work.
62 I accept that the plaintiff’s inability to return to work and to provide for his children represents a significant loss to the plaintiff. The plaintiff reported to the medical witnesses that he feels guilty for not providing more for his children.[39] Given the length of time the injury has persisted and the medical evidence as to permanency, I am satisfied that the plaintiff’s impairment is permanent.
[39]PCB 82 and 95
63 I am satisfied it is fair to describe the consequence of this plaintiff’s loss of earning capacity as “serious” as defined within the Act, when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments.
64 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity. Given the medical evidence of Dr Slesenger, that at best the plaintiff could work 16 hours per week, and Mr Kossmann, that the plaintiff has no capacity for work currently or into the foreseeable future as a result of his physical condition, I find the plaintiff is effectively out of the workforce for any employment. Accordingly, there is no need to go into the analysis of wage rates, as I do not accept he has any residual capacity, given the medical evidence.
65 I accept the plaintiff has complied with the requirements of paragraph (g) of s134AB(38) of the Act. Accordingly, I am satisfied the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
66 In view of the matters I have described, the plaintiff has discharged the onus with respect to his physical condition regarding his loss of earning capacity.
67 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
68 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injury suffered over the course of his employment with the defendant after 20 October 1999.
69 I will hear the parties on costs.
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