Dougan v Otis Elevator Company Pty Ltd
[2014] VCC 2124
•15 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03017
| BRIAN THOMAS DOUGAN | Plaintiff |
| v | |
| OTIS ELEVATOR COMPANY PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5, 8 and 12 December 2014 | |
DATE OF JUDGMENT: | 15 December 2014 | |
CASE MAY BE CITED AS: | Dougan v Otis Elevator Company Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2124 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Capacity for alternative suitable employment
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Acir v Frosster Pty Ltd [2009] VSC 454; Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of pecuniary loss damages and pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr G Worth | Slater & Gordon Ltd |
| For the Defendant | Mr N Griffin | Thomson Geer |
HIS HONOUR:
1 This case fairly and squarely calls into play a consideration of the realities of the labour market when considering capacity for alternative suitable employment under s134AB(38) of the Accident Compensation Act 1985 (“the Act”).[1] Basically, for almost 36 years Mr Dougan who is in his 58th year, worked “on the tools” installing and repairing elevators. That was his chosen field of endeavour from about 1974 until January 2010. From about 1980, he has experienced some back symptoms but he was able to work with that over the years.
[1] Acir v Frosster Pty Ltd [2009] VSC 454 at paragraphs 186 and 188; Smorgon Steel Tube Mills
2 All the evidence supports his never being able to return to his chosen vocation due to impairment of the dominant right arm and shoulder and also, due to the impairment of the left arm and shoulder. Both shoulders have been the subject of two operations and numerous other treatment modalities now for years.
3 The application for leave to bring proceedings for pecuniary loss damages relies on separate paragraph (a) injuries to the right shoulder and to the left shoulder. The defendant admits these are compensable injuries and sensibly conceded at the outset of the hearing that “serious” pain and suffering consequences were made out by the plaintiff. The single issue is therefore whether the plaintiff has discharged the onus of proving a permanent loss of earning capacity of 40 per cent or more.[2]
[2]Transcript (“T”) 1-2
4 His last full year of work was 2008-2009. In that year, he grossed $77,521 from personal exertion. A 60 per cent bar was agreed at by the parties at $46,512 or $894.47 per week.
5 The plaintiff has very little formal education. He came to Australia when fifteen years of age from Scotland. He had completed his education in Scotland to about Year 9 level. After a short time as an apprentice plasterer, he started performing the heavy work involved in installing, repairing and working on lift elevators.[3] The arduous nature of the work had led to dominant right shoulder symptoms in about 2001 but he kept working with conservative treatment. Very heavy components were lifted and handled as part of his job.[4]
[3]Plaintiff’s Court Book (“PCB”) 11
[4]PCB 11
6 An incident on 12 November 2009 tipped his right shoulder symptoms over the edge. He was using a pinch bar to lever concrete nails from a concrete wall. That incident saw the start of a long and extensive treatment journey that has involved a number of different forms of treatment and investigation.
7 He saw a general practitioner several days after the incident. Ultrasound investigation followed and it showed full thickness tears in the dominant right shoulder. The plaintiff was on the operating table by 18 January 2010 at the hands of Mr S Holland. Screws and anchors were inserted to secure the rotator cuff in position.[5]
[5]PCB 13
8 The plaintiff has not worked in his trade since January 2010. This operation was the first of two right shoulder operations, the last one being on 19 November 2013.
9 Left shoulder symptoms started to increase in the post-surgery period in early 2010 as he was using the left arm more and more. The left shoulder then needed specific treatment. By 7 October 2010, a left shoulder ultrasound showed a tear of the supraspinatus tendon. The left shoulder has also progressed to the stage of two operations being required. These took place on 27 April 2011 and 10 September 2012. Before and after these operations a lot of conservative treatment was tried on both shoulders, including hydrodilatation.
10 Quite promptly, after the first right shoulder surgery, the plaintiff started looking for less manual work. He did a basic computer course but struggled with that area of learning. He has very limited computer skills that are confined to basic email and Google searching. His wife really attends to these tasks.[6] He did a burglar alarm installation course but it increased shoulder symptoms. He has tried finding other work in retail at Bunnings, for example. He took a voluntary position as a driver for a charity, transporting the elderly and disabled people. He tried to get full-time work as a driver but failed the medical examination.
[6]PCB 13; T40, 77-78
11 I accept his evidence that realistically a driving job is beyond him, as after an hour or so pain increases.[7] In addition, lifting, carrying and manoeuvring of equipment or people is beyond him.[8] He obtained a taxi licence in 2010 as part of his post-surgery rehabilitation. He renewed it in January 2014. He thought maybe “down the line” he could do some work. It was a “fall back” but he doubted whether he could obtain any work as a full-time taxi driver and carry it out successfully. He also has a light rigid bus-truck licence that enables him to drive certain vehicles. He drove once for an hour to Geelong and drove back but his arm pain in effect means he cannot keep both hands on the wheel without resting one hand at a time.
[7]T89
[8]PCB 17
12 I accept his evidence that his capacity to even drive is limited by the right shoulder impairment, as well as by a left shoulder. He drives one-handed due to pain after some time. It is unrealistic, in my view, to say he has a capacity to be a taxi, truck or bus driver. To have his limitation on driving, such that he cannot drive properly with two hands, is to effectively render him unemployable as a professional driver in the real commercial world. He coped with the voluntary driver job as the journeys were of short duration and no medical was needed for the job.[9] He was doing it for nothing. Not surprisingly though, a medical was required for a paid driving position. He failed the medical. On all the evidence, I find he does not have a capacity for driving jobs.
[9]T46
13 In Court he demonstrated limited movements of both shoulders. Even after a demonstration that only lasted a few seconds, he experienced increased pain.[10] This is consistent with very real loss of mobility in both shoulders. In terms of his constant pain, he is limited in pain relief by stomach problems that painkillers have caused him. The limited movements he showed in Court, and which I accept, make employment capacity for a man with his background no more than theoretical out in the real world.[11]
[10]T22, 48
[11]T37
14 Even hanging washing, taking out the wheelie garbage bin or lying on his arm in bed can cause increased pain that leads him to take mild painkillers over the counter, such as Panadol. Even to pull a door or anything when there is resistance can cause a stab of shoulder pain.[12] I accept he is never without pain.[13]
[12]T37-39, 20-21
[13]T83
15 The plaintiff applied for jobs at Bunnings in a number of their western suburbs locations online and with a résumé being provided. His wife did all the computer work involved in such application and prepared the résumé for him. He had experienced the usage of a lot of power tools in his trade and he thought that might lead to him having some suitability for Bunnings-type work. He has also gone door to door, making some verbal job applications in Newport and Williamstown, including at a hotel and at coffee shops.[14]
[14]T40-44
16 The plaintiff was a candid witness. He agreed there was improvement following operations.[15] He felt that there were several months of improvement to the left shoulder, for example, after the September 2012 operation. Sadly, his symptoms reached a certain level of improvement and then plateaued out. The right shoulder also had a few months of improvement after the more recent November 2013 operation but by March this year that improved when it ceased. He was forthright about his problems with alcohol.[16] He agreed he was pleased with progress after the left shoulder operation in the early months and to some extent the right, but generally the improvement and progress was short-lived unfortunately.
[15]T49-54
[16]PCB 17; T29-30
17 The plaintiff gave a very forthright and reliable account of his limited social life and daily activities. He walks the dog most days, weather permitting, for an hour or so. He meets other dog owners for a chat. He goes to the pub to drink and have a bet.[17]
[17]T23, 27, 29-32
18 After that evidence, five DVDs of various dates in 2013 and 2014 were tendered.[18] They just confirmed the accuracy of his evidence. Hours of film just illustrated what the plaintiff had already told the Court about his activities. Film showed the plaintiff mostly walking a dog, sitting in cafes and in a park where other dog owners gathered when their dogs exercised. Across all this film there were no strenuous shoulder or arm movements demonstrated, no awkward arm postures that were maintained for any length of time and no heavy activity. On occasions, a dog pulled on the lead and a few times the plaintiff threw very light sticks for a dog to fetch, usually throwing underarm. He also opened the rear door of his station wagon for the dog to get in and out. That is a door that is hydraulically assisted in terms of movement. These activities were only a split second or two of any arm and shoulder activity.
[18]Exhibits 1-5
19 There was nothing in the DVDs that could in any way be said to replicate the demands of holding down a job in the real world, even with light manual requirements. It remains that these films are but a snapshot of activity over the last five years. There were unexplained gaps in the films on a number of occasions. In the end, the films did not impact adversely on the plaintiff’s credit or the doctors’ opinions in my view. He had described all these activities candidly before any film was shown.
20 Overall, the DVDs showed very little active arm and shoulder movement. On a couple of occasions, he seemed to flex or move his right shoulder consistent with discomfort. As the plaintiff said, he does not “whinge” about his pain. The plaintiff agreed he enjoyed conversing with other dog owners when he was out walking his dog. Other than that, he maintained he still feels grumpy and depressed about his plight. The plaintiff did not hide any activity. He said before film was shown to him that he walked the dog most days and that is what I saw.[19] He was forthright about movements that he would perform without disability.[20]
[19]T25
[20]T61, 68-70
21 In the end, I found the plaintiff reliable and honest in regard to his problems in both shoulders. He did not exaggerate. With the limitations of his work experience and personality, I accept he has made reasonable efforts to get into other work. He has been unsuccessful.
22 I note the repeal of s134AE of the Act and the Second Reading Speech and Explanatory Memorandum that accompanied it. Clear, proper and adequate reasons are still required, but in view of the single issue in this case, it is not necessary to quote all the medical reports in detail. Some predate various of the four operations for example and the task of judging the application must be made now in December 2014. Accordingly, the more up-to-date opinions are most helpful.
23 By 2 December 2009, the plaintiff was under Mr Holland. He operated on the right shoulder in January 2010. The plaintiff’s general medical care has been with his local general practitioner, Dr H Bertram, in Altona.
24 Dr Bertram recorded some symptoms in 2001 and 2008 in the right shoulder and saw the plaintiff in December 2009 after the November incident. He saw a depression had eventuated due to the injuries and the plaintiff’s loss of job and reduced likelihood of finding work.[21] Even in 2012, the doctor thought the problem with him finding work “… may well be an ongoing problem”[22] due to bilateral shoulder pain. Some depression from a man who has lost his trade of some 35 years is understandable but it bears no relevance to his incapacity for work.
[21]PCB 66
[22]PCB 66
25 The last word by this doctor, who knows the plaintiff best of all, was in October 2014. He said the plaintiff continued to suffer significant disability and pain from the right shoulder tear and the left shoulder supraspinatus injury. The conditions were permanent. The disability was unlikely to improve and could increase. He ended very pessimistically:
“I do not believe he would be fit for work as a full-time bus driver for people with disabilities, and his prospects of finding a job he could perform and an employer who would accept him would appear very slim”.[23]
[23]PCB 68
26 He found that the plaintiff’s conditions in both shoulders were permanent and were unlikely to improve and, indeed, could increase.
27 Any manual worker or tradesman using tools is particularly impaired by the dominant arm being impaired. Most trade tasks require dominant arm usage. That is the case with the plaintiff. I find his right shoulder injury effectively puts him out of the suitable work market for the foreseeable future.
28 Of course, it is the medical capacity for work I must gauge and not an employer’s attitude or the marketplace as such. However, the local doctor’s views bear on the question of realistically assessing capacity for suitable employment. If an unskilled man nearing fifty-eight years of age, who has a licence to drive a taxi, a bus or truck is not capable of doing that work full-time, that speaks of very serious incapacity for work out in the real world. His incapacity is permanent. I read this doctor’s views as in effect saying the plaintiff is not fit for full-time suitable employment as a result of the dominant right arm impairment and also as a result of the left impairment.
29 The treating surgeon, Mr Holland, has performed three of the operations. He operated both times on the right shoulder and did the second of the two left shoulder operations. His assistant, Mr Ek, performed the first left shoulder operation on 27 April 2011. Mr Holland’s extensive report on 11 November 2014 recorded certain improvement that the plaintiff largely agreed with. I find the surgeon’s optimism, however, hard to follow. From the outset, he was dealing with “a massive tear of his right shoulder cuff”.[24] Time and again the plaintiff has come back to Mr Holland for treatment following re-emergence or increase in symptomatology after initially getting some relief. Ultimately, only twelve months ago, the plaintiff needed another right shoulder operation years after the first one. Procedures were followed by development of adhesive capsulitis or frozen shoulder.[25] So it seems the results were less than optimal, in spite of Mr Holland’s rather bright view of what has been a very long treatment journey.[26]
[24]PCB 34
[25]PCB 39
[26]PCB 39
30 The last report of Mr Holland of 17 November 2014 followed a final visit in June 2014. That report stated a qualification on his lift mechanic work but that:
“… I expect he would be suitable for light work especially in the part-time setting. I would advise him to minimise overhead use of the arm where possible and lifting as comfortable.”[27]
[27]PCB 50
31 A realistic look at those limitations really cuts the plaintiff out of manual employment in my view. Manual employment is all he has really ever been involved in. In his own words, he thought he was “smart but in a mechanical way”.[28] He has no real qualifications for anything but that except driving. He is unable to drive for more than an hour or so without an increase in pain. He is a man of very limited education and of very limited work experience background. Observing and hearing him, leads to a conclusion he does not have a personality that would readily lend itself to sales or customer relations. He tended to be rather prickly and short at times with questions in Court.
[28]T95
32 When Mr Holland gave evidence, he had viewed the DVDs which had been sent to him. He was asked if he saw anything inconsistent in that film and he said there were “no surprises”.[29] He thought the plaintiff had good results from the various surgeries. Shoulders would regain condition with use was a general comment he offered in relation to these injuries. A job where the worker can lift, if it is comfortable to lift, is not a real job out in the workplace in my view. He thought the plaintiff was fit for part-time light work but with minimised overhead use and lifting, provided it was comfortable. In the end a worker cannot decide what and when to lift. The employer decides that. None of the four job suggestions and the duties involved in them that were suggested by IPAR and which the defendant relied on were put to Mr Holland to comment on. While in some ways he deferred to vocational assessors, it would have been helpful if he had been taken to the various tasks involved in those four jobs.
[29]T117
33 Understandably, Mr Holland did not take into account all the factors I must consider when dealing with the legal question of capacity for suitable employment as defined by the Act. In particular, I accept the plaintiff’s evidence when asked about his skills that they all referred to one industry, the lift industry. I find that really he has “…nothing outside of that”.[30]
[30]T80
34 Mr J O’Brien, orthopaedic surgeon, saw the plaintiff once in June 2013. It pre-dated the fourth operation in November 2013. At the time, Mr O’Brien correctly thought the clinical condition was not totally stable, due to increasing right shoulder symptoms.[31] The left shoulder was not stable either. He thought twelve months following the September 2012 operation should be awaited before stability might be achieved.
[31]PCB 90
35 Within the limitations Mr O’Brien had in only seeing the plaintiff back in June 2013, he described quite significant disability in both upper limbs.[32] As to work capacity, he thought the old job out of the question as would be any manual employment.[33] It needs to be remembered that this is all the plaintiff has really ever done. Mr O’Brien thought:
“… currently this patient is not capable of undertaking suitable employment and I would suggest the patient could be regarded as totally incapacitated.”[34]
[32]PCB 91
[33]PCB 91
[34]PCB 91
36 Mr O’Brien’s qualifications about stability not being achieved as at June 2013 were borne out by the fact that further surgery took place in November 2013. The fact that Mr O’Brien thought there could be further improvement from such surgery does not detract from his opinion that, certainly in regard to the right shoulder, the plaintiff in effect had no capacity for suitable employment. In view of the last operation resulting in temporary improvement only, I accept Mr O’Brien’s opinion as proving accurate and helpful in judging the consequences now, even though he saw the plaintiff prior to the last bout of surgery.
37 Dr H Sutcliffe, occupational physician, saw the plaintiff twice and reported in 2013 and 2014. She recorded the operations and then the development of capsulitis following surgery. The first report in May 2013 was before the last procedure and so the second report following assessment in May 2014 is more helpful.[35] She described then that the plaintiff had persisting pain of severe intensity with limitation of movement in the right and in the left shoulders. He had no capacity for his old work.
[35]PCB 69 and 80
38 She then went through a large number of suggested job alternatives put to her that came from a 2013 vocational assessment from IPAR.[36] The plaintiff had no capacity for these jobs she said and she gave her reasons why.[37] The restrictions she described on those job analyses point to very real limits on the plaintiff’s ability to work. For example, prolonged driving, heavy lifting, carrying of equipment, moving quickly and restraining people are all beyond his capacity. Limitation of movement was also an impediment to some jobs. She makes the obvious points in regard to other job suggestions about his insufficient training and lack of expertise in relation to keyboarding, computer operation and administrative tasks.[38] These comments, in my view, are sound in relation to the evidence overall. They are relevant to my finding that when the definition of “suitable employment” is examined, the plaintiff has no capacity for it. That is a situation that is probably going to remain for the foreseeable future and is a consequence of the impairment of his dominant right arm.
[36]PCB 77-94
[37]PCB 85
[38]PCB 85
39 The reports tendered by the defendant are from Mr A Buzzard, general surgeon, and Dr D Barton, occupational physician. Both only saw the plaintiff once. Mr Buzzard reported prior to the fourth operation in November 2013.
40 The report of Mr Buzzard was only about seven weeks prior to the last right shoulder operation. He diagnosed pathology in both shoulders and advised the upcoming operation was appropriate.[39] The surgery would mean the plaintiff could return to suitable employment but not his old job. Mr Buzzard did not elaborate on what he meant by suitable employment so the report does not assist either party really in this application given the generality of his statement.
[39]DCB 34
41 Dr D Barton reported in November 2014 and he, not surprisingly, found wasting of muscles around both shoulders.[40] He said the four operations appeared to have been “somewhat unsuccessful”.[41] The plaintiff had a long-term disability and there was a persistent dysfunction of both shoulders in his opinion.[42] As to work, he gave a very qualified opinion:
“He has a theoretical capacity to undertake some lighter duties that do not require lifting heavy weights or working with arms raised above chest and head height.”[43]
[40]DCB 39
[41]DCB 40
[42]DCB 40
[43]DCB 40
42 He then commented on a number of jobs suggested in an August 2013 IPAR vocation report. It should be noted this report is limited by being before the final surgery. Dr Barton felt the plaintiff had a “theoretical capacity” to undertake the jobs suggested there.[44] His opinion was not directed to the issues such as the age, education, skills and work experience of the plaintiff that is required by statute. When they are taken into account, the medical capacity for alternative employment which Dr Barton only described as “theoretical” is not a real capacity in my opinion in the outside commercial world.
[44]DCB 40
43 Ultimately, the defendant suggested four jobs out of the 2014 IPAR report as “suitable” employment.[45] These were sales assistant, customer service (meet and greet), enquiry clerk/customer service and sales representative. Three things need to be stated at the outset.
[45]DCB 102i-102p; T101, T110
44 Firstly, the plaintiff has no experience in sales or that type of engagement with the public. He has been “on the tools” virtually for thirty-five years from 1974 to 2010.[46] Secondly, I have had the distinct advantage of hearing and observing him in the witness box over two days and something of his personality was apparent over that time. He is not a man who would easily swing into a sales role in terms of the demands of such a role dealing constantly with all manner of people who comprise the public. Thirdly, he has very limited computer skills. Virtually all these jobs involve computer skills that on the probabilities are beyond his capacity.[47] His wife does most of the computer driven tasks in his life.[48] As he said, he is “not very good” and did “not know how to use” them when it came to computers.[49]
[46]T90
[47]PCB 102, 102m, 102o
[48]T40, 77-78, 105
[49]T97
45 In addition to these general comments, there are specific tasks such as advising on products, stacking goods, management of stock, dealing with complex enquiries, preparing reports and frequent driving that are some of the duties involved in these positions. These examples are beyond the plaintiff’s probable physical capacity and certainly his experience and skill set when all the evidence is considered.[50]
[50]PCB 102i, 102m, 102o
46 Sales assistant and customer service on the evidence would yield $800 per week gross.[51] Thus even if the plaintiff could do these jobs, which I do not accept, the wage would amount to a more than a 40 per cent loss given the $894.47 agreed 60 per cent bar.
[51]DCB 102i, 102k
47 I find that this man has reached the latter part of his working life and he has only really ever worked in one industry and basically on the manual tasks in the lift industry and very little else. I find that the résumé understandably inflates the real skills and experience in order to attract employers but they are not realistic in presenting the plaintiff as anything beyond a manual trade-type person. His skills are confined basically to the lift industry and all the doctors say it is beyond him.[52]
[52]T80, 103
48 The defendants submitted that the onus under paragraph (g) of s134AB(38) of the Act has not been discharged by the plaintiff in terms of retraining and rehabilitation. I do not agree. I find he is a motivated man. He has an unblemished work record for thirty-five years or so. He has tried with the limitations of his injuries, education, age, skills and experience to find work. He has obtained several licences. There is nothing further he could reasonably pursue. Given the plaintiff’s limitations, I do not accept there is any retraining or rehabilitation reasonably open to him that would alter the fact he has no realistic capacity for suitable employment.
49 While I have touched on it already, it is fundamental to this application to consider evidence I accept that in fact this man is very limited. In spite of the breadth of his “skills” in the résumé,[53] the proper understanding of them is quite different. They all related to the lift industry.[54] He has no training or qualifications except what “I’ve picked it up as I went along”.[55] He is a man who was accurate when he said “…my brain works in the mechanical sense…”.[56] In other words, when it comes to skills, it is in his old work in the lift industry and I accept there is “…nothing outside of that”.[57]
[53]Exhibit 7
[54]T80, 102-103
[55]T102
[56]T92
[57]T80
50 As a result of the impairment of his dominant right arm I find on the probabilities the plaintiff is effectively totally incapacitated for any suitable employment for the foreseeable future. If I am wrong and there is some limited part time capacity within the perimeter fence of all his restrictions it is a capacity that represents well over a 40 per cent loss.
51 It is not necessary to deal with the left arm impairment in detail in view of the above.
52 For the reasons mentioned, I grant leave to the plaintiff to bring proceedings for the recovery of pecuniary loss damages and it follows pain and suffering damages.
Pty Ltd v Majkic [2008] VSCA 230 at paragraph 11
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