Druiven v The Age Print Company Pty Limited
[2020] VCC 540
•7 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04677
| WILLIAM SIMON DRUIVEN | Plaintiff |
| v | |
| THE AGE PRINT COMPANY PTY LIMITED | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 March 2020 | |
DATE OF JUDGMENT: | 7 May 2020 | |
CASE MAY BE CITED AS: | Druiven v The Age Print Company Pty Limited | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 540 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the left upper limb and right upper limb – pain and suffering and economic loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Lexa v Transport Accident Commission [2019] VSCA 123; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Target Australia Pty Ltd v Maloney [2000] VSCA 124; Tavendale v The Age Co Ltd [2008] VCC 642; De Bono v Victorian WorkCover Authority [2019] VSCA 85
Judgment: Leave granted to the plaintiff to issue a proceeding seeking pain and suffering damages and pecuniary loss damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr J J Fitzpatrick | Adviceline Injury Lawyers |
| For the Defendant | Mr E Makowski | Thomson Geer Lawyers |
HIS HONOUR:
Introduction
1 William Druiven applies under s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to issue a proceeding for the recovery of damages in respect of injuries arising out of or in the course of his employment with The Age Print Company Pty Ltd. He alleges the injuries comprise an impairment of the function of his upper limbs and satisfy paragraph (a) of the definition of “serious injury” in s134AB(37). In paragraph (a), “serious injury” means “permanent serious impairment or loss of a body function”. This application is made in respect of pain and suffering and pecuniary loss damages.
Circumstances
2 William Druiven is fifty-seven. He is married with five sons. Mr Druiven was born and raised in Melbourne after his parents migrated from Holland following the Second World War.
3 During the equivalent of Year 10, he left school to enter an apprenticeship with Progress Press. Until then, his education had been unsatisfactory:[1]
“One thing I have always been quite embarrassed about and have not put forward is my lack of education. Mum and dad were always going back and forth to Holland when I was young across my educational years. I can say that I feel I was very much left behind. I struggled in Form III and was actually failing.
… Even now I get my wife to check my spelling and how I have written things. I am not very confident in this at all.”
[1]Affidavit sworn 19 February 2020 at paragraphs [7] and [8]
4 Mr Druiven completed a four-year apprenticeship with Progress Press, and remained there until its business closed in 2002.[2] At Progress Press, he worked as a printer, head printer and supervisor. Later in 2002, he found employment with the defendant as a printer. He worked full time, on rotating day and afternoon shifts, and up to 36 hours a week. Sometimes, he worked double shifts and, at times, he acted as a supervisor. In 2004, the defendant left its premises in Spencer Street for new premises in Tullamarine. Mr Druiven was part of the move and benefited by becoming a permanent rather than a casual employee.
[2]Described as a trade certificate in printing from the Industrial Training Commission
5 As a printer, a significant part of his duties were physical. That part often involved heavy and repetitive work with his upper limbs. Unusually, in these applications, Mr Druiven described those duties in detail.[3] This work had caused problems in the past:[4]
“Over the years, given the sort of work I was performing, I got aches and pains, particularly in the shoulder area. I am told I attended my GP in 2009 complaining of soreness in the shoulders. That was attributable to the work I was doing. I would occasionally have a pain in the side of my neck and, apart from sore shoulders, I would at times have a sore right hand and fingers.”
[3]Paragraphs [8]-[21] and four exhibits
[4]At paragraph [23]
6 In 2009, he twisted his right knee and had an arthroscopy. He still has occasional soreness and uses Voltaren Gel when the knee flares up.
2013
7 Leading up to the events of 28 February, the defendant’s business was understaffed and employees, including Mr Druiven, were under pressure to cover the deficiency. Mr Druiven says:[5]
“On 28 February 2013, the day my significant shoulder pain came on, I felt a hot and burning type pain in both shoulders at the time. There was a constant ache at the top of my left shoulder between my shoulder and neck, and also with my right shoulder. It felt like some of these areas were on fire. As the day went on, I was switching arms as each one got sorer and sorer.”
[5]Affidavit sworn on 17 May 2019 at paragraph [22]
8 Elsewhere, he advised:[6]
“… he was covering for a number of staff and as a result, was required to manually handle and change over 300 plates over 2-3 hours. Each plate required him to apply a suction cup, using either his right or left hand in an over shoulder reach position and to pull backwards forcefully. He advised that as a result, he developed bilateral shoulder pain, the left being more noticeable than the right … .”
[6]Report of Dr Slesenger, dated 20 February 2020, at page 3
9 Usually, he would remove more than 60 printing plates on a normal shift. Despite the escalating pain, he continued working that day and the next.
10 The next day he felt his shoulders were “on fire”. He spoke to his manager and they thought the pain would settle but it did not. It appears he continued working: “I do not believe I had much time off work at all.”[7] He attended the defendant’s medical practitioner, Dr Lim.
[7]Affidavit sworn 17 May 2018 at paragraph [28]
11 On 15 March, he was certified fit for modified duties, with the injury described as left and right rotator cuff sprain or strain. There is a document entitled “return to work arrangements” which sets out his activities for the weeks starting 18 and 25 March.
12 On 21 March, x-rays investigated his shoulders while an ultrasound looked at his right shoulder. He underwent physiotherapy. The x-rays showed bilateral mild osteoarthritic degenerative changes in the glenohumeral and acromioclavicular joints. The ultrasound of the right shoulder showed two partial thickness tears of the deep surfaces of the supraspinatus and subscapularis tendons, infraspinatus insertional tendinopathy and mild subacromial bursitis.
13 On 1 May, a Medical Panel examined him. Since neither party relied on its opinion, I will do no more than mention the fact of the examination.
14 On 21 and 28 May, his left and right shoulder joints were injected with cortisone respectively.
15 On 10 July, MRI scans showed degenerative changes in both acromioclavicular joints. He was referred to an orthopaedic surgeon, Mr Richard Dallalana. He recommended excision of both acromioclavicular joints but surgery was not approved by the authorised agent.
2014
16 In March, the premises at Tullamarine closed and those works moved to Ballarat. Mr Druiven remained on modified duties until its closure. Following its closure, Mr Druiven remained unemployed for about three years.
17 He had cortisone injections into the bursae of both shoulders and, diagnostically, nerve block testing.
18 Mr Dallalana recommended surgery for both shoulders, but one shoulder at a time. On 5 August, he operated on the left shoulder: resected the AC joint; decompression acromioplasty; resection of the CA ligament and a bursectomy. During the surgery, he noted a very diseased AC joint, a lot of bursitis and a tight subacromial space. There was no tearing of the rotator cuff. Immediately after the operation, he developed severe odynophagia. He could not swallow. The condition was painful. An ENT specialist performed a nasendoscopy or flexible endoscopy, which showed some oedema, mild vocal process granuloma of his vocal cords and saliva pooling. He was treated with Dexamethasone and Xylocaine and improved. He was discharged six days after the operation.
19 On 5 November, Monica Hainal, occupational rehabilitation consultant, on behalf of Workstreams, assessed Mr Druiven for a NES Vocational Assessment report. He rated his reading, writing and verbal skills as good. The report described his duties incorrectly. Accidentally, it transposed the duties of a printing machine operator. WorkStreams identified several suitable jobs: foreman/supervisor. It should be purely supervisory and, preferably, in the printing industry or something close to it; printing machine operator. Although described as a printing machine operator, the duties involve paper and wood processing. In any event, prior to ending his employment, Mr Druiven operated printing presses with the pushing of buttons; there were little physical activities; sales assistant and applying his knowledge in, for example a print centre in a large whitegoods’ supplier or a camera store; and retail manager.
2015
20 On 24 April, Mr Druiven had hydrodilatation for his stiff or “frozen” left shoulder. It improved the range of his shoulder movements but he continued to experience pain in the left side of his neck, radiating down his left arm with numbness in his fingers.
21 The general practitioner referred Mr Druiven to the Metro Pain Group and he saw Dr Bruce Mitchell, a pain specialist, on 5 October 2015. MRI scans of the neck showed a prolapse at C6-7 and slight compression of the right C7 nerve root.
2016
22 During February, an organisation called IPAR engaged a vocational advisor, Jana Wray, to assess Mr Druiven and she completed a 130-week vocational assessment report. She identified six jobs as suitable, adding she did not possess recent medical information about Mr Druiven’s capacity for work and recommended a further medical assessment. She attempted unsuccessfully to contact the general practitioner. Those jobs were printer (small offset), printing machinist (supervisor), machine operator (paper products), product quality controller, sales assistant (printing services) and light courier delivery driver. After discussing three other jobs with Mr Druiven, Ms Wray considered them less suitable then. They were storeman, test and tagger and child gym supervisor.
23 Ms Wray also provided a “capacity support services report”. She noted Mr Druiven was undertaking a computer foundation skills course at the Narre Warren Community Learning Centre. She noted his varying levels of interest in the jobs set out in the previous paragraph and his “high level of interest” in bus driving. She analysed the broad requirements of each job, including bus driving, and noted that three would require reassessment for the physical requirements once a workplace was identified. She recommended Mr Druiven retrain for bus driving because his general practitioner had said it was suitable.
24 Having unsuccessfully recommended a diagnostic block of the left C5/6/7 medial branch, on 28 June, Dr Mitchell performed a C6/7/8 medial branch block. It showed a 40 per cent positive response for shoulder pain and a negative response for the neck. On 21 December, Mr Druiven came under the care of Dr David Vivian at the same Group. He recommended an injection into the right shoulder joint.
2017
25 On 31 January, Mr Druiven started as a bus driver with the Rowville Secondary College. This was a WISE placement. He obtained accreditation with the Taxi Commission. He drives either a 24-seat minibus or 56-seat bus. and this employment continues.
26 In September and, again in January 2018, another practitioner at the Metro Pain Group, Dr Neels du Toit, performed suprascapular nerve diagnostic blocks to both shoulders.
2018
27 On 1 June, Dr du Toit treated the suprascapular nerve of each shoulder with radiofrequency denervation. It gave almost 50 per cent pain relief and a better range of movement. It gave some relief but by May 2019, the relief was wearing off. On the advice of Dr Du Toit, he expected this: “I should expect as the treatment was only temporary. He said nerves regenerate, so the problem will return.”
2019
28 On 17 May, Mr Druiven swore the first of his two affidavits. He suffered pain in both shoulders, with the right being the worst. The pain was not constant. At complete rest, there was none; however, there could be a sharp, intense pain experienced, causing him to stop whatever he was doing. With his right arm, he retained a reasonable range of movement but movement usually caused pain. There was a better range of movement with his left arm. He regularly iced his shoulders to avoid taking more pain-relieving medicines. The nerve treatment stopped the constant dull ache in his shoulders. But this ache was then returning. He avoided overhead work, swimming and heavy lifting. Although he could carry a shopping bag, he could not lift it onto the table at home. His two-hour bike rides had decreased to 15-minute rides with his children. Throwing the ball with them had not stopped but he throws under, rather than, overarm. He had stopped playing basketball and football with them, especially his youngest. During holidays on the Murray River or at Lake Eildon, he once enjoyed many aspects of boating; now, he is limited to driving the boat. Sleeping on his side was difficult; the left being worse than the right. He struggled to get to sleep and needed “to lie almost prostrate on my stomach but still on a slight angle”. Any type of shoulder strap or bag increased the pain in his shoulders. His time gardening was reduced. He used a Whipper Snipper for short times and still suffered afterwards. He mowed the lawns but at times needed the help of his children to start the mower. Sexual relations are restricted:
“Holding my body weight up is a problem. If I am getting out of a bath or propping myself up, it is painful. My intimate life is restricted because of this. I feel weak in the shoulders as well as having pain.”
29 He had been a scout leader for more than fifteen years. Although continuing, he avoided lifting and slept on a mattress, not a stretcher, because of his shoulders. He took four Panadol Osteo tablets daily, mainly, to relieve his shoulders’ pain. He was working casually as a driver with the Rowville Secondary College. He drove students to and from various locations. Because there were many breaks in his driving, he found the job ideal. He worked between 25 to 30 hours a week. Both the seatbelt and the driving caused pain. After work, sometimes, he was very sore but he did nothing except ice his shoulders.
2020
30 On 19 February, Mr Druiven swore his second affidavit. The condition of his shoulders remains the same, with the right being the worst. In preferring the other shoulder, it too worsens. Recently, he has worked more hours, up to 33, because of the illness of a fellow employee’s wife. He has found working hours beyond 30 very difficult. Between the affidavits, his shoulder pain has increased. He has increased his daily taking of Panadol Osteo to between four and six tablets and, at night, regularly uses Voltaren Gel to sleep better. Nevertheless, it is poor. He has stopped riding his bike now due to the jarring.
31 In this affidavit, Mr Druiven made an important confession over three paragraphs:[8]
“One thing I have always been quite embarrassed about and have not put forward is my lack of education. Mum and dad were always going back and forth to Holland when I was young across my educational years. I can say that I feel I was very much left behind. I struggled in Form III and was actually failing.
I left and did my apprenticeship as it seemed the best option. If I was asked whether I would be okay to go back and study now, I would be very hesitant. I do not feel I would be able to do this. Even now I get my wife to check my spelling and how I have written things. I am not very confident in this at all.
I did attend a computer course for beginners through IPAR and whilst I sat the course through, I did not do well. I am embarrassed to talk about this and generally this is something I hide away. I do not like people knowing about it.”
[8]Paragraphs 7, 8 and 9
32 On 21 February, Dr du Toit performed the same procedure previously performed on 1 June 2018. He expected relief in the pain of the shoulders and improved function for the next twelve to eighteen months. He noted Mr Druiven had undertaken a comprehensive shoulder rehabilitation programme over the previous eighteen months to improve strength and movements of his shoulders.
33 Dr du Toit could not see him returning to his pre-injury duties but may have the capacity to perform alternative duties not involving pushing, pulling, lifting any loads and any overhead arm actions. His work as a bus driver is appropriate because it is within his restrictions.
Current state
Pain
34 As is true in these cases, one relies on the applicant’s description of pain. In his first affidavit, Mr Druiven spoke of “pain”:[9]
“I experience continued pain in my right and left shoulders. The right shoulder is the worst. It can go from zero if it is completely at rest to levels where I have sharp and intense pain and have to stop whatever activity I am doing.”
[9]At paragraph [37]
35 During cross-examination and concerning his left shoulder, he spoke of a constant dull ache. If the shoulder is used, the ache worsens. The denervation process reduces the discomfort to a low level provided he is resting the shoulder. He uses the word “pain” to describe the sensation in his right shoulder. This is because the right shoulder is worse than the left.
36 Although the denervation treatment takes a few weeks to be effective, it does give significant relief, up to 50 per cent or even higher. The treatment removes the ache when the shoulders are at rest; however, any activity will revive the dull ache. But the effect wears off over the space of twelve to eighteen months. Mr Druiven was told the effectiveness of the process lessens with each application. He experiences widespread ache around the top, the front and back of the shoulders and extending into the trapezius muscle. For both shoulders, the ache is aggravated by cold weather, sustained forward reaching, reaching over shoulder height and lying on either side. The ache radiates into the arms, moreso in the right. With the left, the ache is intermittent and occurring through overactivity. The ache can reach relatively high levels. With the right, the ache is constant and dull. It varies from a low level to a high level with significant activity. He cannot sleep on either side comfortably. The nightly pain experienced with the right disturbs his sleep. Infrequently, he experiences neck pain. He sees his general practitioner regularly for certificates and prescriptions. Among the various prescribed and non-prescribed medicines, he takes Voltaren two to three times a week, Panadol Osteo four to six times a day and Nurofen, two to three times a week. He receives physiotherapy under a care plan about five times a year. The physiotherapist uses electrical stimulation, dry needling and massage. He exercises at home, including the use of resistance bands and stretching.
37 He can dress, wash, shower and toilet. He has difficulty with over-the-shoulder garments. He does light shopping, carrying up to five kilograms with either arm, cooking and cleaning. He avoids lifting above waist high. He avoids reaching. He is limited in the garden, occasionally weeding and mowing. He still tinkers with cars but is more limited. He drives an automatic car for up to 40 minutes, swapping the steering wheel between his hands.
38 The family still uses its motorboat on the Murray River where they camp and fish. He finds both difficult.
39 He still works as a bus driver. His bus has automatic transmission and power steering. He works up to three hours in each of the morning and afternoon. Despite a potential of six hours, he drives during four of them. The rest is spent waiting for his passengers. He does other trips, lasting up to three hours, of which the majority is spent waiting. Other tasks are simple. He does not lift luggage. In fact, when driving, he can rest his elbows and arms on the steering wheel.
40 Mr Druiven earned these gross amounts for the years ending 30 June:
(a) 2010 – $69,148.00
(b) 2011 – $80,119.00
(c) 2012 – $81,751.00
(d) 2013 – $84,095.00[10]
[10]This figure included $188.00 from Motorcare Services Pty Ltd
(e) 2014 – $86,731.00[11]
[11]Not counting $167,105.00, being the redundancy payment
(f) 2015 – $53,124.00
(g) 2016 – $52,312.00
(h) 2017 – $33,785.00
(i) 2018 – $40,558.00[12]
(j) 2019 – $42,094.00.
[12]This represents his first full year at the Rowville Secondary College
Medical evidence
Ms Chan
41 Fiona Chan is a physiotherapist. On 20 February 2014, she started treating Mr Druiven. From the outset, she treated both shoulders. Her treatment involved the soft tissues, joint mobilisation, graded resistance strengthening of the rotator cuff and supervised hydrotherapy. His treatment expanded to gymnasium, swimming and hydrodilatation. In a report to the Conciliation Service, she asserted the relationship between the shoulder injuries and Mr Druiven’s employment with the defendant; however, in her last report to his solicitors, she said:
“I believe that the ‘aggravation’ of Mr Druiven’s injury diagnosis has ceased in light that he is no longer participating in the pre-injury duties that caused the aggravation of his injury. It is reasonable to presume that the natural progression of age and time will in some way continue to cause deterioration in the degenerative arthritis in the AC joints.”
Mr Dallalana
42 I have already mentioned Mr Dallalana. He examined both shoulders. The pain was greater with the left than the right. Imaging confined pathology predominantly to the acromioclavicular joints. In August 2014, he decompressed the left shoulder and resected the acromioclavicular joint. He found the joint very diseased, a lot of bursitis and a tight subacromial space. There was no rotator cuff tearing. He expected full recovery within four to six months.[13]
[13]Report dated 7 August 2014
43 He reviewed Mr Druiven on 6 February 2015.[14] Despite Mr Dallalana’s earlier expectation:
“Unfortunately William continues to struggle significantly with his shoulder however the features are different now with much more neurologic type picture to the pain with its radiation and its character. In many ways it is quite non-specific and doesn’t seem directly to relate to the areas intervened with surgically. Despite it being unclear he certainly has restriction in movement of the shoulder and irritation to any movement and a secondary weakness. He does not have a frozen shoulder as such.
His pain is spreading across to the right side as well which is an issue and which often betrays the fact that it may not be a focal discrete shoulder pathology on the side originally involved (left side) responsible for his symptoms. He may be getting a more referred pattern of pain.
…
As a[t] trial we are attempting an intra-articular corticosteroid injection on the left side but I don’t believe that this will actually result in complete resolution of his symptoms … I am becoming concerned that he is developing quite a chronic picture of pain now and one for which I don’t have a surgical or other solution for him personally.”
[14]Report dated 6 February 2015
44 He suggested a referral to Bruce Mitchell, pain specialist.
Dr Mitchell
45 Dr Mitchell saw Mr Druiven in about October 2015.[15] He knew of MRI scans showing a prolapse at C6-7 and slight compromise of the right C7 nerve root. He knew the effect of injections to both bursae and the surgery. He thought there was another source of pain other than the shoulders, and in order of likelihood, he nominated the lower cervical facets, the C6-7 disc and the glenohumeral joint. He wanted to perform a left C5/6/7 medial branch block as the first step in a diagnostic process. The block was performed:
“Mr Druiven’s left C5/6/7 medial branch block (temporarily anaesthetising the C5/6 and C6/7 facets) did not change his neck pain at the time (but this was only 2/10) however it did take his shoulder pain from 5/10 down to 3/10.
Hence I believe part of his pain is being elucidated from the block on these two joints, but most likely the residual source of his pain is a joint further down, and I seek your approval to drop the diagnostic block down one level, and not do the C5/6 but include the C7/T1 joint.”
[15]Report dated 5 October 2015
46 Approval was given. Dr Druiven underwent a left C6/7/8 medial branch block on 28 June 2016:[16]
“… He did not have any change to his pain while the local anaesthetic was active but, following this, he had six weeks when his pain decreased by some 50%.”
[16]Report dated 5 August 2016
47 He sought approval for another C6/7/8 branch block. I do not know whether approval was given, for the next report came from Dr David Vivian, another pain specialist at the same practice.
Dr Vivian
48 By 21 December 2016, Dr Vivian did not think the source of Mr Druiven’s pain was the neck.[17] There was pain over the acromioclavicular joints with both shoulders and with the right shoulder over the sternoclavicular joint. Although ultrasounds showed some deep substance tears in the supraspinatus and subscapularis, testing by resisted movements suggested any rotator cuff abnormality was not clinically significant. Injections into the acromioclavicular joints did not give relief on the day and caused a flare-up later. He noted constant right shoulder pain and intermittent left shoulder pain. The levels were between 5 and 8 out of 10. Raising his arms near to shoulder height or above increased the pain. Apart from such elevation, there was good shoulder movement.
[17]Report dated 21 December 2016
Dr du Toit
49 It seems Dr Neels du Toit, a pain specialist in the same practice as Dr Vivian, took over. In September 2017 and January 2018, Dr du Toit performed suprascapular nerve diagnostic blocks to both shoulders. There was significant pain relief on both occasions afterwards. To Dr du Toit, Mr Druiven suffered from chronic shoulder pain following a work-related injury and described the shoulder pain as neuropathic in nature.
50 On 1 June 2018, he performed suprascapular nerve radiofrequency treatment to the shoulders. It gave 50 per cent relief in shoulder pain and improved function. As to prognosis, it was poor to return to his pre-injury duties given the nature of his longstanding symptoms but with good functional rehabilitation he will have the capacity to return to alternative duties in a reduced capacity. Those duties would not involve pushing, pulling, lifting and not requiring overhead arm actions. Dr du Toit saw his symptoms starting in 2013 at work with further exacerbation when he performed repetitive removal of printing plates from printing presses. His current pain was a direct result of those events.
51 By February 2020, Dr du Toit had performed two suprascapular nerve radiofrequency denervation treatments, the last on 21 February 2020.[18] These treatments give up to eighteen months of pain relief. As the pain increases, the treatment needs repeating. In between treatments, Mr Druiven benefits from physical therapy, mainly physiotherapy.
[18]Report dated 24 February 2020
Dr Doig
52 Dr Graeme Doig is an orthopaedic surgeon. On 18 February 2016, he examined Mr Druiven at the request of an authorised agent. He diagnosed rotator cuff tearing and aggravation of pre-existing degenerative acromioclavicular joints in both shoulders. He assigned heavy lifting at work as the cause of both injuries. The conditions had not resolved and he could not say when they would. Mr Druiven could not return to his pre-injury employment. He could not lift, push or pull more than ten kilograms at or below waist level. He should avoid using his arms overhead repetitively or lifting weights overhead. Mr Doig favoured the end of physiotherapy and gym and swimming memberships. He should self-manage. Nevertheless, his prognosis was guarded, because he was still experiencing pain and weakness after the injuries occurred.
53 Dr Doig re-examined Mr Druiven on 29 January 2020. He noted slight restrictions of movement in both shoulders. He had tenderness in both rotator cuff regions, particularly on the right. His diagnosis was the same as before, except differently expressed: soft tissue injuries to both shoulders on a background of pre-existing degeneration of the acromioclavicular joints and, now, rotator cuff tendinopathy. He saw the pre-existing degeneration in both rotator cuffs as a result of his employment over the years before 28 February 2013. He could work normal hours in a “light, administrative” position. Given a vocational assessment report, he is suited to supervisory and sales assistant/manager jobs. In his current role, it might be difficult for Mr Druiven to increase his hours. He considered his current treatment, including regular radio-frequency neurotomies, reasonable. This last may be enabling him to continue to work as a bus driver.
Mr Shannon
54 Mr Michael Shannon is a surgeon. On 22 March 2016, he examined Mr Druiven at the request of an authorised agent. He complained of pain in the region of the acromioclavicular joint, although it had improved since the arthroscopy in 2014. His right shoulder was now more painful than the left. On examination, he had mild restriction of abduction and flexion. With the right shoulder, he had a tender prominent acromioclavicular joint and moderate restriction of movement, particularly of abduction and flexion. Some or all of the movements were accompanied by clicking or crepitus. Mr Shannon diagnosed osteoarthritis of both acromioclavicular joints with unrelated cervical disc degeneration. As Mr Druiven described the nature of his work, it could have precipitated the symptoms in his degenerative acromioclavicular joints. His adhesive capsulitis had resolved or almost so. He had the capacity for work provided it does not involve strenuous or repetitive use of his arms, heavy lifting or work above shoulder level.
55 Mr Shannon was given a vocational assessment report with suggested job options. He considered the job of small offset printer was inappropriate while a printing machine supervisor may be suitable. Other jobs may be suitable: machine operator; quality control, and courier delivery driver provided it involved documents, messages and other small items.
Mr Joshi
56 Mr Sanjay Joshi is an orthopaedic surgeon who examined Mr Druiven on 25 May 2018 at the request of an authorised agent for the purpose of managing his shoulders. He considered his current treatment as appropriate, including the proposed radiofrequency denervation in a week’s time. He did not think cessation of this and other treatment would affect his daily living.
Mr Brearley
57 Mr Kenneth Brearley is a surgeon. On 5 April 2019, he examined Mr Druiven for an impairment assessment of the shoulders. On examination, there were slight restrictions in the movements of each shoulder. His diagnosis was an injury to both shoulders with aggravation of degenerative changes of the acromioclavicular joints. For each shoulder, he assessed a 2 per cent whole person impairment under the AMA Guides, derived in each on the basis of restriction in flexion and extension.
58 In a later report dated 17 April 2019, Mr Brearley acknowledged his failure to consider the resection of the acromioclavicular joint which included the removal of the outer 9 to 10 millimetres of the distal clavicular bone and soft tissue and revised his impairment assessment of the left shoulder and overall, resulting in a total whole person impairment of 10 per cent.
Mr Kossmann
59 Mr Thomas Kossmann is an orthopaedic surgeon, who examined Mr Druiven on about 25 November 2019 at his solicitors’ request. He complained of neck pain, painful movements in both shoulders joints with clicking on the left side and a painful arc on both sides. With his left shoulder, there was audible clicking in the shoulder joint and a painful arc between 80 and 120 degrees. The same painful arc existed with the right shoulder without the clicking but reduced mobility. Relevantly, he diagnosed osteoarthritic changes to the glenohumeral and acromioclavicular joints of both shoulders. His work aggravated, accelerated and exacerbated the condition of his shoulders. His prognosis was guarded, with the possibility of a complete incapacity for work. He was incapable of returning to work as a printer but retained a capacity for work, evidenced by his working as a bus driver. He should avoid working permanently with his arms, working above shoulder and head height and carrying items weighing more than two to five kilograms. He requires treatment for his shoulders, being pain-relieving and anti-inflammatory medicines, physiotherapy and hydrotherapy. He recommended a PRP injection into the shoulders.
Dr Bloom
60 Dr Michael Bloom is an occupational physician. On 20 January 2020, he examined Mr Druiven at the defendant’s request. On examination, he noted near normal active range of movement in the shoulders with discomfort or pain with movements above chest height. X-rays taken in 2013 and MRI scans in 2013 showed the progression of degenerative changes without indicating acute trauma. Before 28 February 2013, he had mildly symptomatic bilateral rotator cuff degeneration. Before 28 February 2013, he suffered intermittent strain, which exacerbated his symptoms. On 28 February 2013, he suffered another exacerbation of degenerative rotator cuff disease in both shoulders. He cannot perform his pre-injury duties.
61 Dr Bloom believed Mr Druiven could perform the modified duties he worked prior to redundancy on a full-time basis. He considered suitable for Mr Druiven the following jobs: foreman/supervisor; perhaps, retail sales manager (print shop); sales assistant (printing services); perhaps, light courier driver. He could do his present job of driving on a full-time basis.
62 Dr Bloom did not favour radiofrequency denervation because the treatment tends to discourage self-management and taking responsibility for one’s health. Provided the work was relatively light and does not involve repetitive reaching or elevation of the arms, it is suitable and could be done on a full-time basis.
63 Dr Bloom discussed the issue of injury and permanency. At present, the work contribution is no more than 30 per cent and the constitutionally occurring degenerative process about 70 per cent. Whether the work contribution would disappear, he does not say specifically.
Dr Slesenger
64 Dr Joseph Slesenger is an occupational physician. On 3 February 2020, he examined Mr Druiven at the request of his solicitors. Examination showed a reduced range of movement in the left shoulder compared with the right shoulder. Regarding the shoulders, he diagnosed soft tissue injury and aggravation of degenerative disease with chronic pain. The left shoulder underwent an AC joint excision with chronic adhesive capsulitis as a post-operative consequence. He made the causal link between employment and shoulder and other injuries. Although Dr Slesenger links the right elbow to the shoulder problems, that link is not relied upon by Mr Druiven. He cannot return to his pre-injury duties. He is fortunate in having his current job. Its limited requirements allow him to work up to 30 hours a week although the actual driving occupies only 20 of those hours. Whether in this job or not, there are physical restrictions. He should avoid pushing, pulling, carrying or lifting over five kilograms, sustained forward reaching, over-shoulder reaching and repetitive shoulder tasks. Subject to those restrictions, he could work 2.5 hours a day, five days a week. If he has split shift work, then it could become up to 4 hours a day, five days a week with a three-hour rest between shifts. Dr Slesenger advised against the jobs of small offset printer, printing machine supervisor, machine operator, product quality controller, sales assistant in printing services and light courier delivery driver. In a further report, in relation to further proposed jobs, he recommended a job specific workplace assessment for a production manager within manufacturing and a cautious approach regarding sales assistant and sales and marketing manager.
Dr Barton
65 Dr David Barton is an occupational physician, who examined Mr Druiven on 4 February 2020 at the defendant’s request.[19] His examination showed some moderate tenderness in both shoulders around the glenohumeral joint area and near full range of movement for both, with some discomfort at the extremes. His presentation was genuine and there were no non-organic factors or illness behaviours present. His diagnosis is expressed tentatively:[20]
“In this case I would accept that he has some persisting dysfunction of the left shoulder following surgical treatment for an apparent work injury. He also appears to have some persisting dysfunction of the right shoulder related to his work. I note that the Medical Panel he saw considered that he had an acceptable claim in the form of degenerative changes in the AC joint.”
[19]Report dated 5 February 2020
[20]At page 4
66 Although the condition followed a typical path, he was puzzled why ceasing “causative activities” had not led to more improvement. He excluded the neck as relevant because there were no complaints. In rather cautious language, he excluded a capacity to return to work as a printer on a full-time basis. Asked about the same ten jobs asked of Dr Bloom and contained in vocational assessments, Dr Barton saw no particular reason why Mr Druiven could not undertake them on a full-time basis provided none involved awkward or heavy lifting or reaching overhead on a sustained basis. To an earlier question, he said:
“He has a theoretical capacity to return to work to suitable duties. From a simple physical point of view I see no reason why he should not be able to work full-time albeit he claims to be struggling to do more than 40 hours of bus driving per week.”
67 The “40 hours” is a misprint as Mr Druiven told him of 25-30 hours, not 40.
68 Of Dr du Toit’s treatment, Dr Barton said:[21]
“I am not sure that this treatment fits with what would be considered to be an adequate or appropriate treatment for his condition. I do not personally believe that the proposed yearly injections have any particular role to play, albeit the worker does report some temporary improvement.”
[21]At page 6
69 He felt Mr Druiven needed to be empowered to simply manage his own problem with activity and exercise.
Discussion
Injury
Left shoulder
70 Following 28 February 2013, Mr Druiven experienced pain in the area of his AC joint. Mr Dallalana operated on the left shoulder before the right because the pain was greater in the left. He performed a left-sided decompression for the shoulder and AC joint resection. He noted the AC joint was “very diseased”, a lot of bursitis, a tight subacromial space and no rotator cuff tearing. Plainly, his work, particularly on 28 February 2013, rendered his left shoulder symptomatic. It aggravated the previously asymptomatic osteoarthritic changes in the AC joint. This operation did not render the shoulder asymptomatic. It was further investigated by Doctors Mitchell, Vivian and du Toit. The neck was eliminated as the source of the pain and returned attention to the shoulders with Dr du Toit seeing the problem as neuropathic. This caused general shoulder pain for both shoulders. Since the denervation process has been successful up to a point, that diagnosis is correct for both shoulders.
71 It is now seven years since the left shoulder became symptomatic. The effect of the aggravation has not ceased. Even with repeated denervation treatment, the shoulder will remain symptomatic for the foreseeable future. The impairment or loss of the left upper limb, specifically the shoulder, is permanent.
Right shoulder
72 There has been no surgery on the right shoulder. Mr Druiven experienced pain in the area of the AC joint. The MRI scans on 10 July 2013 revealed signs of degenerative change in the AC joint, with associated bone marrow oedema and osteophyte formation. Again, Dr Du Toit saw the source of the pain as neuropathic. I make the same comments for this shoulder as made about the left shoulder.
Pain and suffering consequence
73 Mr Druiven claims the impairment or loss of a body function is to his shoulders. The defendant submits he cannot aggregate the effects or consequences of the injuries to his shoulders because that would be impermissible. It relied upon Lexa v Transport Accident Commission,[22] where the Court was faced with the refusal of the trial judge to aggregated injuries to the shoulders as a single body function. The Court started with the leading authority of Lu v Mediterranean Shoes Pty Ltd,[23] which makes clear that it is permissible to aggregate two body parts in the context of a single incident if it can be said they represent one body function. In Lu’s Case, the effect on the movement of an arm, resulting from separate injuries to the shoulder and the elbow, was not an impairment to one body function. This raises the meaning of “body function”. Starting with the judgment of Batt JA in Target Australia Pty Ltd v Maloney,[24] where it was held the expression “body function” denotes a physical act or operation, not some applied activity, the Court in Lexa said:[25]
“This Court has therefore distinguished between a physical act or operation (involving a part or some closely connected parts of the body) and an ‘activity’ to which the physical act or operation may be applied. The physical act or operation will be one of a number of physical acts or operations that need to be coordinated and applied in order to perform the activity. A ‘body function’ is therefore distinguished from a higher level activity that combines a number of physical acts or operations.”
[22][2019] VSCA 123
[23](2000) 1 VR 511
[24][2000] VSCA 124
[25]At paragraph [46]
74 In Lexa’s Case, the Court rejected the submission that two shoulder injuries may give rise to loss of a body function in the form of an inability to lift an object with both arms, and, in doing so, emphasised the meaning of a body function:[26]
“The process of lifting an object using both arms (and both shoulders) is an activity that combines a number of physical acts or operations involving a number of body parts: bending; bracing; elevating; and so on. It is not a single ‘body function’ but the coordinated exercise of a number of body functions.”
[26]At paragraph [47]
75 The Court was referred to Tavendale v The Age Co Ltd.[27] In that case, the plaintiff suffered an injury to the left knee in an accident. Later, he injured his right knee because he favoured that knee. The judge allowed aggregation of the injuries to the knees. The Court distinguished Tavendale because the injuries in Lexa’s Case were not claimed to be the product of the other. The Court did not disapprove Tavendale’s Case. Although good law, the principle in Tavendale cannot be stretched to the situation here. The injury to either shoulder is not a consequence of the injury to the other. The shoulders were injured at the same time. Although he rotated the use of his arms during 28 February 2013 and afterwards, and still does, there is no evidence that the injury to one shoulder contributed to the injury to the other. It does not establish the circumstance in Tavendale. The injuries to the shoulders cannot be aggregated. Since the principle in Tavendale’s Case does not apply here, I need to examine the shoulders separately. Mr Druiven contends the impairment or loss of function involved with each shoulder satisfies the “serious injury” test.
[27][2008] VCC 642
Right and left upper limbs
76 Mr Druiven experiences pain, as opposed to ache, in the right shoulder. At rest, the pain can disappear. With movement of the arm, it can escalate to a “sharp and intense pain”. While it remains effective, the denervation treatment removes the constant dull ache in both shoulders. It also improves the range of movement of the shoulders. Apart from being right-handed, the restrictions in his activities are attributable to the shoulders generally. Riding a bike, swimming, playing football and basketball and using a kneeboard, donut and biscuit involve the use of both upper limbs. I assume throwing a ball involves the right upper limb because he is right-hand dominant while catching it would often involve both limbs. Overhead work involves both. Sleeping on either side is painful, with the left side worse than the right. Using a Whipper Snipper requires both limbs, as would starting his motor mower. Lifting would normally involve both, even something as light as a shopping bag. Due to embarrassment, he touched upon the delicate subject of intimate relations by saying, in this passage:[28]
“Holding my body weight up is a problem. If I am getting out of a bath or propping myself up, it is painful. My intimate life is restricted because of this. I feel weak in the shoulders as well as having pain.”
[28]Affidavit sworn 17 May 2019 at paragraph [44]
77 Scouting involves various activities. The problems with one or other or both of his limbs restricts that. Mr Druiven gives the examples of lifting and sleeping on a mattress and not a stretcher bed.
78 As can be seen, the pain and suffering consequence of the injury to the upper limbs affects both in certain instances and one or the other in other instances. The current symptomatic effect is more pronounced in the right, with the left receiving surgery. Overall, the consequences for each largely balance out.
79 It must be remembered that the denervation treatment gives Mr Druiven significant pain relief and greater function until its effect wears off. The treatment is repeated. Unfortunately, apart from the wearing off of each treatment, the effectiveness of each new treatment becomes less so. Presumably, there will come a time when the possible effect of a new treatment is so lessened that it is not worthwhile. The future is somewhat bleak.
80 Although denervation contributes significantly to his pain relief, Mr Druiven needs to supplement its effects with daily taking Panadol Osteo and, on bad days, rubbing Voltaren Gel into his shoulders.
81 Viewing each upper limb separately, and treating each as involving a body function, then the injury to each is a “serious injury”. The right is more painful. Each shoulder was earmarked for surgical treatment but only the left received it. There were complications following the surgery, which resolved. The denervation treatment gives a degree of pain or ache relief and increased function. Its effects wear off and requires renewal about every twelve to eighteen months or so. Mr Druiven has had the treatment twice to both shoulders. Without this treatment, as Dr Doig supposed, he might lose his remaining capacity for work. The future is for fluctuating levels of pain and ache and function. The immediate effect of the denervation treatment gives him the peak of his pain relief. Gradually it wears off, leading to further treatment. The need for this process is ongoing.
82 Dr Barton disapproved of the denervation treatment, at least relating to the shoulders, despite Mr Druiven gaining some benefit. Dr Bloom was against further such treatment because it tends to discourage self-management and taking responsibility for a person’s own health. Dr Doig considered the treatment reasonable because Mr Druiven received benefit and it may be allowing him to continue his work. The treatment gives considerable, not some, benefit to Mr Druiven. It is supported by his treating practitioners. Its continuation is appropriate.
83 As I said above, the injury to each upper limb is “serious”. Judged by comparison with other cases in the range of possible impairments or losses of a body function, the pain and suffering consequence is fairly described as being more than significant or marked, and as being at least very considerable.
Loss of earning capacity consequence
84 In De Bono v Victorian WorkCover Authority,[29] the Court said:
[29][2019] VSCA 85 at paragraph [47]
“As the respondent correctly submitted, in order to succeed in his application for leave to commence a proceeding claiming pecuniary loss damages, the applicant had to establish that:
(d) his loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, were fairly described as being at least very considerable; and
(e) he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s 134AB(38)(f); and
(f) he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.”
85 And:[30]
“In some cases, perhaps many cases, it may be necessary for a judge to make some assessment of the financial value of the earning capacity lost in order to determine whether the loss of earning capacity consequences satisfy the ‘at least very considerable’ test. That is not to say that there cannot be cases where a worker will fail at the first stage (not ‘at least very considerable’) without the need for the judge to then engage in the measuring exercise required at the second stage of the analysis (40 per centum or more).”
[30]At paragraph [52]
86 There is unanimity among the practitioners that Mr Druiven cannot return to his pre-injury duties. With assistance, he has found a job he can perform and has been performing since 2017. His casual employment means the school uses him when he is needed and he is not needed during school holidays, which amounts to ten weeks in the year. To Mr Druiven, these ten weeks are important:[31]
“This is important so I can spread my load and make my work rate sustainable across the other months. I believe I am doing the maximum I can do due to my bilateral shoulder injury.”
[31]Affidavit sworn 5 March 2020 at paragraph [2]
87 Apart from Mr Druiven’s self-assessment, there is a good deal of opinion about the present extent of his capacity for work. Prior to his redundancy, Mr Druiven worked normal hours on modified duties. He believes he could have continued that work if he had not been made redundant. The difficulty is that job no longer exists and in its modified form was not a job as such.
88 Dr Bloom examined ten jobs, described generically, with specific jobs not identified or inspected. They were derived from one or other of four reports dated between 2014 and 2017. He considered two suitable: foreman/supervisor; and sales assistant in printing services. With the foreman/supervisor, he noted the tasks, concluding the job was predominantly sedentary and not involving manual tasks. With the sales assistant in printing services, he noted the sedentary to light physical demand. The suitability of the rest depended on worksite inspection or the modification of duties acknowledging his physical limitations. If suitable employment was found, Mr Druiven could perform it on a full-time basis immediately.
89 Dr Barton examined the same jobs and commented:
“Provided each of these jobs do not involve awkward or heavy lifting, reaching overhead on a sustained basis I see no particular reason why he could not do these jobs on a full-time basis.”
90 Dr Doig also examined the same ten jobs. Without specifically rejecting any of the proposed jobs, he saw greater suitability in a supervisory position and as a sales assistant/manager while reiterating the physical limitations. He thought it would be difficult for Mr Druiven to physically increase his hours at his current job.
91 Dr Kossmann was not asked to comment on specific jobs. He said Mr Druiven had a work capacity, noting his work as a school bus driver. He reiterated the restrictions: avoid working permanently with his arms, above shoulder and head height and carrying items weighing more than two to five kilograms.
92 Dr Slesenger provided three reports. In his first report, he commented on six jobs described in an IPAR vocational assessment dated 12 February 2016. In his second report, he commented on the three recent reports of Doctors Bloom, Doig and Barton. In his last report, he commented on the IPAR labour market report dated 24 February 2020 where he examined nine jobs. In a way, his approach was the same as Dr Bloom. Both were about general descriptions of the duties of jobs. While Dr Bloom worked off the general description to conclude two were suitable, Dr Slesenger was more cautious, relying to an extent on his knowledge of the variations from workplace to workplace of the work required under broader headings. However, six of the jobs were unsuitable: printing machine operator; printer (digital); printing machine supervisor; machine operator; product quality controller, and courier driver. With the other three, in effect, he advised a worksite inspection of any particular job within the general description. With the sales assistant (printing services), drawing on his experience, the job requires the lifting of printing products, often weighing up to ten kilograms. Dr Slesenger prescribed an upper limit of five kilograms. He did not specifically consider the job of foreman/supervisor. He considered the job of printing machine supervisor and product quality controller and advised against both.
93 Mr Druiven returned to work on modified duties. These continued until the termination of his employment. As he put it, his duties were worked out between a woman from Human Resources and his doctor. They were tailored to accommodate his injuries, implying it was a made-up job and not real. He did those duties on a full-time basis.
94 He could not work as a floor supervisor even though he has had experience in this type of job in printing. He conceded most, but not all, of the duties of a floor supervisor were light. Some of his answers in cross-examination suggest there might be such jobs where the work is entirely light and he could do them. But Mr Druiven was not speaking from experience. It was an expression of wishful thinking. His working career has been in printing until recently. Speaking about a floor supervisor in the printing industry, he was definite:[32]
Q: “In the printing business?---
A:No. No. Floor supervisor requires to jump in and do hands-on role as well if the printers or having difficulty or something like that. Also, supervisors in the printing industry are required to be – if they’re sick or something like that, to cover.”
(sic)
[32]Transcript at page 20
95 In manufacturing, one is left with the distinct impression there is no such thing as a floor supervisor whose duties are entirely light. This underlies Dr Slesenger’s reticence about general descriptions and the need for actual workplace assessments.
96 Floor supervisor is a different job from the foreman and supervisor described in vocational assessments. He has never performed the tasks of determining and implementing purchasing, storage and distribution strategies, policies and plans. He has never ordered goods or undertaken stocktaking. He had never prepared and implemented plans to maintain stock levels at minimum cost. He has never negotiated contracts with suppliers to meet quality, cost and delivery requirements. He has never operated recording systems to track the movements of supplies and finished goods. He has poor writing skills.
97 As to a production manager, Mr Druiven has never worked as a production supervisor or something similar. He has experience supervising the production process. But outside the printing industry, he has no experience of various types of manufacturing machinery or tools. He is computer illiterate: “I just can’t grasp computers at all.”
98 As to the job of courier, he can drive. His ability to lift is restricted. The practitioners recommended various weight restrictions, as low as two kilograms and as high as nine. Mr Druiven can carry a shopping bag containing goods. He cannot lift it to the tabletop. Although he had not weighed such a shopping bag, it seems his lifting capacity is low, less than nine kilograms.
99 Underlying all of these positions is the hours he could work. The final question and answer in re-examination is telling:[33]
Q:“Doing the best you can. If you did have to work continuously in a role that was go, go, go, go, as you have described it, how many hours do you think you could manage without a break – consistently?---
A:Possibly two hours.”
[33]Transcript at page 62
100 If the witness is truthful, which Mr Druiven is, self-assessment of his or her capacity for work is an important piece of evidence if it is a reasonably accurate assessment of the capacity. A truthful witness in the position of Mr Druiven is not necessarily an accurate one. His or her assessment may be too optimistic or even too pessimistic, even though honestly given. In the witness box, Mr Druiven found himself in an unusual environment of answering questions posed by skilful advocates. His earlier answers lacked thought. Only after further questioning did one arrive at the considered and accurate position. Sitting beneath his various skills is his capacity for sustained work. Fortunately, he found a job he can perform. He has tried and found he cannot do more hours per week in his current job, except in a short burst. His job is largely sedentary. But it gives him a shortened day, extensive breaks during the day and a break of ten weeks in the year divided among term holidays. Each of these breaks allows him time to recover. On a sustained basis, he cannot work more than about two hours at a time and then needing a significant break. He cannot work more than thirty hours in a week in any job that gives him extensive breaks during the day and ample time off during the year. Returning him to normal hours in any of the proposed jobs is unrealistic and amounts to unsuitable employment. Some of the suggested jobs are superficially suitable but beneath the general description lies variations in duties which are beyond Mr Druiven and would, in any event, be subject to the extensive periods of rest he enjoys now.
101 I have summarised the views of each of the medico-legal practitioners. The difficulty highlighted by Doctors Slesenger and Bloom, and perhaps the others, is the general description of the jobs. This caused Dr Slesenger to draw on his experience to either reject or advise caution over the jobs. If I am correctly interpreting Dr Barton, he discounted Mr Druiven’s self-assessment, which is a mistake. Maybe, Mr Druiven is suited to the jobs of foreman/supervisor and sales assistant but it would need to be position which allows thirty hours of work each week, extensive breaks during the working day and ten weeks of further rest spaced over the year.
102 As stated above, there are two stages of the test for “serious injury” regarding loss of earning capacity consequence. With the first stage, the loss of earning capacity consequence for Mr Druiven is more than significant or marked and is at least very considerable. The injury to either upper limb has reduced his earning capacity from a full-time, physically active job to a very part-time largely sedentary job with frequent breaks. This produces a significant financial loss.
103 Turning to the second stage, Mr Druiven submits $86,731.00 earned in the year ending 30 June 2014 most fairly reflects his earning capacity had the injury not occurred. This figure excludes his redundancy payment but includes weekly payments of compensation for three months at the rate of 95 per cent of pre-injury average weekly earnings. The defendant submits the figure is $81,925.00, representing his average annual gross income for the three years being 30 June 2011, 2012 and 2013.
104 Before his injury, Mr Druiven’s gross income had increased each year with his employer. It went from $69,148.00 in 2009-2010 to $83,907.00 in 2012-2013.[34] The increases were not uniform but there were no decreases. Taking an average of the three earlier years does not reflect the steady increases in his gross earnings over those years and continuing into the year of his injury. I agree with Mr Druiven that his gross income for 2013-2014 most fairly reflects his “without injury” earning capacity. In truth, it may underestimate the capacity, for three of the months were paid at 95 per cent of another figure, being his pre-injury average weekly earnings.
[34]I am ignoring the $188 earnt from Motorcare Services Pty Ltd
105 Mr Druiven is now paid at the rate of $35.05 per hour. He usually works 30 hours a week. Despite working more owing to the ill-health of a fellow employee, he believes he cannot work beyond 30 hours a week on a sustainable basis because he is not managing 33 hours a week.[35] I accept that assessment. In 2017-2018, he earned $40,558.00 gross from the school and, in 2018-2019, $42,094.00 from the same source. The defendant submits the 2018-2019 figure should not be relied upon. Mr Druiven may work fewer weeks in the year because the school did not require him but the enforced break is necessary for it allows him to work the other 42 weeks. Without the breaks, he could not. I accept the rationale behind the 2018-2019 figure. At the date of the hearing, his gross annual income is $44,163.00[36] Comparing this figure with $86,731.00, Mr Druiven has a financial loss of more than 40 per cent.
[35]Transcript at page 41
[36]$35.05 per hour by 30 hours per week by 42 weeks in the year
106 Turning to the issue of permanency of this financial loss. After three years, he found his present position. It is ideal for him. It allows him to exercise his limited capacity for work. The limitations involve restrictions on activities and their duration. He has worked in this job for about three years. He has tried more hours but these are not sustainable. His financial loss of 40 per cent or more is permanent.
107 The loss of earning capacity consequence is “serious” using the test in s134AB(38)(c).
Conclusion
108 I will grant leave to Mr Druiven to issue a proceeding seeking pain and suffering damages and pecuniary loss damages.
- - -
0
4
0