Ferrari v Flexi Personnel Pty Ltd

[2020] VCC 466

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-19-04764

DARREN ANTHONY FERRARI	Plaintiff
v
FLEXI PERSONNEL PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE MACNAMARA
WHERE HELD:	Warrnambool
DATE OF HEARING:	17 and 18 March 2020
DATE OF JUDGMENT:	23 April 2020
CASE MAY BE CITED AS:	Ferrari v Flexi Personnel Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VCC 466

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:              Serious injury application – loss of earning capacity only – two serious injuries conceded by VWA as to pain and suffering consequences –  treatment of loss of earnings consequences of two injuries – whether a single body function – plaintiff unfit for pre-injury duties – no other suitable employment – leave granted

Legislation Cited:     Workplace Injury Rehabilitation and Compensation Act 2013; Accident Compensation Act 1985

Cases Cited:Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65; Transport Accident Commission v Zepic [2013] VSCA 232; Bezzina v Phi & Anor [2011] VCC 423; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622

Judgment:                 Leave granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J P Brett QC with Mr G Pierorazio	John Mccristal Injury Lawyers Pty Ltd
For the Defendant	Mr A D Clements QC with Ms F A L Ryan	Minter Ellison

HIS HONOUR:

Background

1        Mr Ferrari was born in Bendigo in 1964 and left school “during the start of Year 11”.  (Plaintiff’s Court Book (“PCB”) 13, paragraphs 2 and 5).  Between 2000 and 2009, he was a sheep farmer owning a property just north of Bendigo.  At other times, he has worked as a labourer in the building industry.  Until around 2017 he was employed by a variety of labour hire companies, including the defendant, Flexi Personnel Pty Ltd.

2        In 1983, Mr Ferrari was in a serious car accident, suffering “significant head injuries”.  He had to undertake extensive rehabilitation, including learning to walk gain.  (PCB 14, paragraph 7).  Apparently, this accident left him with an Acquired Brain Injury.  (Transcript (“T”) 97, L10-16)

3        On 11 July 2016, whilst engaged in demolition work (at 412 St Kilda Road, Melbourne), he was standing next to a thick plasterboard wall which unexpectedly gave way and fell towards him.  He was struck by the falling plasterboard, twisting his leg as he was “forced to the floor by the impact”.  He summoned his supervisor via his mobile telephone, who helped him to his feet. (PCB 14, paragraphs 9 and 10).  He was then taken to the Emergency Department of The Alfred hospital, being discharged eight hours later with a diagnosis of a sprained ankle and provided with crutches. 

4        An MRI scan of his left knee carried out on 14 July 2016 revealed “Grade II/III degenerative change in the patellofemoral joint”. (PCB 60).  An MRI scan of the left ankle conducted on 16 August 2016 revealed “Grade III tear of the ATFL and probably the fibulocalcaneal (scil calcaneofibular) ligament.  Grade II/III of the ATFL and Grade II injury of the PITFL, indicative of a joint and syndesmotic injury”.  (PCB 61-2)

5        Orthopaedic surgeon, Mr Barnes, carried out surgery on the knee on 24 August 2016 in the form of an arthroscopy and a microfracture.  He manipulated Mr Ferrari’s left ankle under anaesthesia.  He had been suffering constant pain in his left knee and ankle. (PCB 15, paragraphs 12, 14, 15, 16 and 17)

6        A further MRI scan of the knee was carried out on 22 November 2016 revealing “chondral signal heterogeneity medial femoral condyle and medial and lateral patellar facets”.  An MRI scan of the left ankle on the same day revealed “evidence of previous high ankle sprain … early osteoarthritis in the posterior subtalar joint with marginal osteophytes and capsular oedema”. (PCB 16, paragraph 20).  Mr Ferrari underwent surgery and had physiotherapy and hydrotherapy. (Ibid, paragraph 21).  He returned to work part time in October 2016 doing 15 hours of laundry duties per week.  He was able to vary his posture but ceased work in May 2017 “as my left knee and ankle pain was being aggravated”.  He worked for two weeks in June 2017 as a lift attendant in high-rise demolition jobs.  He has not worked since. (Ibid, paragraph 22)

7        In an affidavit sworn 28 May 2019, Mr Ferrari said “I’ve recently completed the theory aspects of a Certificate III in Health Services Assistance with a view to obtaining work as a PSA”. (Ibid, paragraph 24).  He became homeless in August 2018, moving to South Australia “with a view to obtaining work in the health industry”, which has turned out to be unavailable. (Ibid, paragraph 25). In his affidavit he describes in detail his pain and restrictions, the medication that he takes and the effects of his injury on his personal life. (PCB 16-18)

8        For the purposes of the Workplace Injury Rehabilitation and Compensation Act 2013, the workers’ compensation insurer has accepted that the injuries which he has suffered to his knee and ankle are to be regarded as a “serious injury” within the meaning of paragraph (a) of the definition of that phrase and s325 of the statute.

9        As a result, the present application seeks a finding of serious injury solely relative to pecuniary loss. 

10      Mr Ferrari swore a further affidavit on 26 February this year.  Speaking of his employability, he said “I have few computer skills to offer, other than being able to send emails and surf the internet.  That’s about it.” (PCB 123, paragraph 7).  He said that he can drive a car for an hour and after that he needs to get out and have a stretch. (PCB 124, paragraph 20).  He has had to discard his four-wheel drive and subsequently acquired a VW Beetle with a manual transmission “having to dip into my superannuation in order to raise the funds”. (PCB 124, paragraph 9).  He said:

“Because of the nerve pain in my leg I found that any pressure on the leg tends to produce symptoms.  For this reason I rarely wear long pants and have resorted to wearing shorts, which is not much fun during winter although that is my life now.  Moreover of a night-time I find that the weight of the doona on my ankle increases symptoms and I need to kick it off.”

(ibid, paragraph 11)

11      He said he “cannot wear shoes for prolonged periods of time and therefore invariably wear orthopaedic thongs”. (ibid, paragraph 12).  The only relief for his symptoms is “to sit on the couch and put my leg up”. (ibid, paragraph 14).  He said he considered that he has been “seriously injured due to [his] past loss of wages, future loss of earning capacity”. (PCB 125, paragraph 20)

Legal considerations

12 Section 327 of the Workplace Injury Rehabilitation and Compensation Act authorises a “worker” to recover damages “in respect of any injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury”.  Mr Ferrari’s case is that he has sustained a serious injury within the meaning of the Act.

13      Section 325 of the Act defines the phrase “serious injury” as follow:

“(a)   permanent serious impairment or loss of a body function; or

(b)    permanent serious disfigurement; or

(c)    permanent severe mental or permanent severe behavioural disturbance or disorder; or

(d)    loss of a foetus.”

14      As previously noted, the WorkCover Authority has already determined that for the purposes of pain and suffering damages only, both the injury to Mr Ferrari’s knee and to his ankle are to be regarded as serious injuries in themselves. 

15      It is necessary to note the following provisions of ss(2) of s325 of the Act, which reads as follows:

“(2)   For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—

      (a)   the following definitions apply—

…

"income from personal exertion" has the same meaning as in section 6(2) of the Transport Accident Act 1986;

(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—

(i)pain and suffering; or

(ii)loss of earning capacity—

when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;

(c)an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—

(i)the pain and suffering consequence; or

(ii)the loss of earning capacity consequence—

is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;

…

(e)if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), the Authority or self-insurer must not issue a certificate under section 335(2)(c), and a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—

(i)at the date of a decision under section 335(2)(c) or at the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and

(ii)the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;

(f)for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing—

(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—

(A)earning, whether in suitable employment or not; or

(B)capable of earning in suitable employment—

as at that date, whichever is the greater, and—

(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred;

(g)a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining—

(i)has; or

(ii)after rehabilitation or retraining, would have—

a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;

… .”

16      The phrase “suitable employment” is defined in the Act as follows:

“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited—

(a)   having regard to the following—

(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;

(ii)the nature of the worker’s pre-injury employment;

(iii)the worker’s age, education, skills and work experience;

(iv)the worker’s place of residence;

(v)any plan or document prepared as part of the return to work planning process;

(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;

(b)regardless of whether—

(i)the work or the employment is available; or

(ii)the work or the employment is of a type or nature that is generally available in the employment market;

and, for the purposes of Part 4, includes—

(c)     employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and

(d)     employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and

(e)     suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;”

17      This application is brought under Part 7 of the Act, therefore, paragraphs (c), (d) and (e) of the definition would not appear to be applicable. 

18      One question which arose was whether, for the purposes of this determination, the injuries of the knee and ankle could be aggregated and dealt with together as Mr Brett QC and Mr Pierorazio on behalf of Mr Ferrari contended or, on the other hand, needed to be dealt with separately, as was contended on behalf of the Commission by Mr Clements QC and Ms Ryan.

19      Two decisions of the Court of Appeal bear on this question.  In Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65, Mr Lu sought leave to bring a damages claim against his employer pursuant to the terms of the Accident Compensation Act 1985 (which were similar to those in the 2013 statute). According to Mr Lu, he suffered, during the course of his employment, a developing injury to his elbow by way of bilateral epicondylitis or “tennis elbow” as it is sometimes known. He also claimed to have suffered injury to his shoulder and neck in a singular and distinct incident where he was hit on the shoulder by a falling mould.

20      The Court of Appeal consisted of Winneke P and Buchanan and Chernov JJA.  The learned President concurred with Chernov JA, who held that these were two body functions involved and the injury consequences could not be aggregated.

21      Buchanan JA took a different approach from the one adopted by the other two members of the Court.  He said:

“3.I think that the identification of a body function for the purpose of determining the application of paragraph (a) of the definition of ‘serious injury’ in s.135A(19) of the Act depends only upon the existence of impairment or loss of a physical function, and the definition is not limited to the function of that part of the body directly affected by an injury. Thus I consider that an injured shoulder and an injured elbow can properly be regarded as resulting in impairment or loss of the body function of an arm.

4.It is another question, however, whether an injury to a shoulder and an injury to an elbow can be aggregated. I agree with Chernov, J.A. that injuries can only be aggregated if they are the result of one event or incident.”

22      It had been argued on behalf of the appellant worker, Mr Lu, that the two injuries should be treated together for the purposes of determining whether Mr Lu had suffered a serious injury.  Chernov JA (Winneke P agreeing) said, at paragraph 23:

“In my view, the short answer to Mr. Bingeman’s principal submission is that the two injuries in question impaired two separate body functions, namely, the plaintiff’s right shoulder area and his right elbow respectively. Consequently, they cannot be relevantly aggregated.  The mere fact that those injuries had, in one sense, an effect on the movement of his right arm does not mean that the arm was the relevant body function.  A body function that is indirectly, albeit detrimentally, affected by two separate injuries to two body functions, is ordinarily not thereby relevantly impaired by those injuries for the purpose of s.135A(19)(a).  Thus, an injury to the big toe of one foot and a later injury to the knee of the same leg may have a detrimental effect on the use of that leg, but ordinarily, it would be inaccurate to describe the two injuries as having impaired the one body function, namely, the leg. In case I am wrong in my conclusion on this matter, I shall proceed to analyse Mr. Bingeman’s primary case on the footing that the two separate injuries impaired the one body function, namely, the plaintiff’s right arm.”

23      It cannot be said that Lu’s Case conclusively determines the analytical question for the purposes of this application because Lu’s Case is distinguishable on the ground that the two injuries did not derive from one incident, as is the case here.

24      In Transport Accident Commission v Zepic [2013] VSCA 232, the Court was called upon to determine whether injuries to the neck and low back ought to be analysed as affecting a single body function in determining whether a serious injury had occurred, the function being the spine, or whether the neck and the low back should be regarded as separate bodily functions. The Court analysed a number of earlier decisions, including a variety of decisions by this Court. Maxwell P said of the County Court decision, “the clear preponderance of opinion amongst judges of that Court is that the spine is the relevant body function for this purpose”. [128]

25      The leading judgment was given by Maxwell P and the other members of the Court, Tate JA and Garde AJA concurred with the learned President.  His Honour said that in view of the preponderance of opinion in this Court and the failure of the Transport Accident Commission to challenge the approach on appeal:

“The occasion for such a challenge has, in my opinion, long since passed.  This is a question of fundamental importance to serious injury litigation, as appears from the number of decisions to which I have referred.” [138]

26      On this state of authority it cannot be said that where in an accident an injury is sustained in a single incident to two parts of the leg, for instance the ankle and the knee, that the Court of Appeal has pronounced on the question as to whether the injuries should be aggregated to determine whether a serious injury or serious injuries have been sustained.

27      Lu’s Case on its facts covers only the circumstance in which the injuries were sustained at different times.  The outcome in Zepic’s Case, namely the treatment of the spine as a single bodily unit, might be supportive of the view that the leg should be regarded as a single bodily unit. 

28      However, the remarks of Maxwell P quoted above, at [126], might be thought to indicate the opposite.  It is unnecessary for me to express a concluded view on this difficult question.

29      For the purpose of determining the pecuniary loss consequences of Mr Ferrari’s injury or injuries, if the leg is to be regarded as a single bodily unit or function, the consequences may be aggregated.  On the other hand, if the true view is that the two must be treated separately, a similar outcome would appear to follow from the application of the principle stated by the Court of Appeal in Bezzina v Phi & Anor [2011] VCC 423.

30      In the course of dismissing an appeal from a determination of her Honour Judge Cohen in this Court, Harper JA and Beach AJA (as he then was) said:

““In assessing whether each claimed serious injury satisfied the ‘very considerable’ test, her Honour was required to examine the impact of the injury on the applicant as a whole.  Far from her Honour’s approach being erroneous, her Honour was bound, when examining the consequences of the claimed serious injury, to look at how they affected the applicant as he was and would likely have been absent the injuries he sustained in the transport accident.  This included looking at and considering the effect (and likely effect in the future) of the applicant’s pre-existing injuries.”

[2012] VSCA 161 [23]

31      If the injury to the knee and the ankle need to be dealt with separately, then the analysis relative to each requires consideration of Mr Ferrari’s situation, having regard to the other injury in the same way as her Honour Judge Cohen rightly conceded, the consequences of the subject injury in Phi in light of the plaintiff’s situation having regard to pre-existing injury.

Expert opinions

32      Mr Ferrari’s treating general practitioner was Dr Noor Zammat of Tarneit Family Medical and Dental Centre.  The doctor provided a report to Mr Ferrari’s solicitors by letter dated 14 October 2018.  The doctor described the circumstances of Mr Ferrari’s injury, saying:

“There is Grade II/III degenerative change in the patellofemoral joint and right knee according to MRI.  There is no acute injury of ligament or menisci seen.  Left ankle MRI showed significant injury to the syndesmosis joint of distal tibia and fibula”. 

(PCB 31)

33      He said that as at the date of the report, Mr Ferrari had “no capacity to work”.  His prognosis, according to the doctor, was best answered by his surgeon, Mr Barnes.  The doctor reported that at that stage, Mr Ferrari was:

“… on simple painkiller (depending on severity pain he takes Panadeine Forte, Panadol, Nurofen) and having physiotherapy and having hydrotherapy at regular basis. Physiotherapy and hydrotherapy helps him to have some relief of pain and improve mobility of joints. Darren  needs to continue his physiotherapy at least once a fortnight and hydrotherapy three times a week to keep him active and improve his left knee and ankle pain.”

(PCB 31)

34      The doctor said:

“He is currently stable with abovementioned treatment. Sometimes condition get (scil gets) worse.  He feels pain with each walking and he is unable to do any fast walking and running.”

(PCB 32)

35      The doctor predicted long-term deterioration of Mr Ferrari’s condition with increasing pain and loss of mobility “from further degenerative change”. (PCB 32)

36      Mr Ferrari’s solicitors requested a vocational assessment report relative to Mr Ferrari from Mr Paul Hartley, who described himself as a “vocational assessor”.  Describing his interview with Mr Ferrari, Mr Hartley said:

“His manner of speech and interaction were quite brusque, and he came across as ‘a bit of a rough diamond’, perhaps a reflection of his male dominated, manual forms of employment during his working life.”

(PCB 82)

37      Mr Hartley, noting that Mr Ferrari was fifty-five at the time of interview, referred to:

“Substantial research into the ageist discrimination faced by those over 50 who have lost their jobs and are trying to seek reemployment has been undertaken over many years.  Despite government initiatives and legislation to reduce this discrimination, the most recent research is that ageist discrimination remains a very substantial barrier to employment for older job seekers.”

(PCB 90)

38      Mr Hartley summarised a number of return to work initiatives and suggestions as to alternative employment and reviewed the medical opinion expressed as to Mr Ferrari’s physical capacity.  He noted that the proposals for employment in light of Mr Ferrari’s injuries called for less physically demanding work than he had previously done as a manual labourer and sheep farmer.  Mr Hartley continued:

“Mr Ferrari is a man lacking skills for less physically demanding work. [emphasis in the original]  He has never worked in any sales related role be it face-to-face, telephone based wholesale work, he lacks any experience in stock control software or databases, point-of-sale equipment and point-of-sale software.  He has no clerical or administrative skills and lacks adequate literacy and digital literacy at the level required commercially … He has some limited warehousing experience but as a picker/packer using forklifts and undertaking significant load-bearing activities, plus the use of RF scalers to undertake the required duties, without any general warehousing, logistics or distribution knowledge, skills or experience.”

(PCB 94)

39      Mr Hartley was critical of the suggestions made by way of alternative employment as part of the WorkCover process. He said one of the consultants, a Ms Cameron:

“… has substantially overestimated Mr Ferrari’s transferrable skills for such work, noting his total lack of previous education, training or experiences in these or any related administrative, office based, computer based or telephone work, on the basis of limited education and coming from a male dominated, laborious work background.”

(PCB 95)

40      Rejecting a suggestion that Mr Ferrari might obtain employment as a general clerk, Mr Hartley said “level 4 clerical role for which the minimum educational attainment is generally a Year 12/VCE pass, due to the level of vocabulary, grammar, syntax, spelling and writing skills required as well as sound organisational ability” necessarily excluded Mr Ferrari. (ibid)

41      After having considered and rejected a series of suggestive alternative pieces of employment, Mr Hartley summarised in “bullet point” form what he regarded as the salient features of Mr Ferrari’s situation relative to re-employment:

·“persistent and poorly controlled left lower limb pain (knee and ankle) and related dysfunction with poor sleeping patterns with daily fatigue such that he can nod off spontaneously during the day (‘face plant’) that see him with a reduced capacity to present to, or undertake, a job of work in a consistent and reliable manner, or produce a work product in a consistent and reliable manner to the level required by industry;

·medical opinion regarding the deterioration in his level of function and increased pain with the reduction in his rehabilitation funding since mid-2018;

·medical opinion that he requires further treatment of his persistent left knee injury symptoms;

·his previous work history in male dominated, primarily unskilled or minimally skilled, labourious (sic) and physically demanding, manual – practical forms of employment from which he is now precluded;

·a restricted work profile with a Year 10 level of education with limited educational outcomes, a qualification in vehicle manufacturing that is now redundant, lower average literacy and a lack of commercially functional digital literacy that see him devoid of demonstrable skills, education, training or experience for alternate forms of employment within his residual functional capacity for work with restricted mobility, sitting and load-bearing (i.e. his paucity of transferable skills);

·his need for substantial and substantive retraining in order to be able to demonstrate the vocational skills and experience required to access work within his residual physical functional capacity following successful treatment (literacy, digital literacy and vocational training), which will be time consuming and see him further job detached;

·the combination of his age, at 55 years, with the ageist bias against older job seeker and his now prolonged workforce detachment and the impact this has on his marketability and employability; lack of skills reinforcement; lack of ability to provide a recent relevant reference; and substantially reduced employability skills;

·his workers compensation history and ongoing injury symptoms with the probable need for accommodated employment;

·the unsuccessful occupational rehabilitation assistance provided to him on the basis of what was in my opinion, a very suboptimal assessment of his transferable skills for alternate employment;

·again, his age, which will see him with a poor ability to gain the entry-level positions available to him as a new entrant to forms of employment for which he has no previous exposure;

·his rather brusque presentation and mode of speech and lack of customer service skills or interpersonal skills for customer facing or telephone-based roles; and

·his reported current certification as having no work capacity.”

42      Based on these considerations, Mr Hartley’s conclusion was:

“It is therefore my opinion that, now precluded from his previous form of employment, I am unable to suggest any ‘suitable employment’ option for which I believe he would be able to fulfil the inherent vocational and/ or physical requirements in a consistent and reliable manner, or for which he would be realistically employable.”

(PCB 99)

43      Mr Ferrari is at present under treatment by Dr Robert Hermann, paediatric surgeon.  Dr Hermann provided a report to Mr Ferrari’s solicitor dated 19 December 2019. (PCB 58-59).  Even although this report was included in the Plaintiff’s Court Book, it was placed in evidence by the defendant.  Dr Hermann described Mr Ferrari’s ankle injury, his examinations and program for future treatment in the following terms:

“On examination Mr Ferrari has neurapraxia at the anterior left ankle involving the deep and superficial peroneal nerves. There is also significant pain on palpation of the scat at the lateral/distal aspect of the fibular. The scar is at the site where an internal fixation device was placed for syndesmosis repair. The internal fixation device protrudes from the fibular and causes discomfort. Mr Ferrari’s gait is antalgic due to his subtalar and ankle join pain in addition to the superficial and deep peroneal neuropraxia.

The overall clinical picture is of neuropraxia, anterior ankle and subtalar join synovitis and a painful internal fixation device. It is likely that Mr Ferrari will require further podiatric management in the form of orthotic therapy, cortisone injections and possibly surgery. He has been advised to try various forms of footwear that do not cover the anterior ankle joint and will allow him to ambulate without discomfort. My concern is the deep and superficial peroneal neuropraxia will prevent him utilising footwear that will allow him to ambulate without discomfort. Should these footwear options not be comfortable he may require custom made footwear. I have recommended review of Mr Ferrari after he has tried various forms of footwear.”

(PCB 59)

44      The WorkCover insurer required Mr Ferrari to attend an assessment by Associate Professor Umberto Boffa, consultant occupational and environment physician, on 17 November 2016.  The professor concluded that at that stage, Mr Ferrari “is not fit for pre-injury duties and hours”.  The professor, however, anticipated “a full return within 12 weeks”, “with intensive rehabilitation”.  He suggested a graduated return to duties, avoiding prolonged standing and walking and repetitive lifting and carrying more than 5 kilograms.  He believed that Mr Ferrari could “graduate” to pre-injury duties and hours within 12 weeks.  As at the date of his report, the professor said that Mr Ferrari had “a current work capacity”. (Defendant’s Court Book (“DCB”) 5).

45      The professor concluded that Mr Ferrari “should be fitted for a more appropriate patella brace with better support”. (DCB 6)

46      The professor re-assessed Mr Ferrari, providing a report to the defendant’s solicitors dated 1 March 2020. The professor recommended sensory conduction studies relative to the neuropathic pain in the ankles, with possible plastic surgery.  He recommended a trial of neuropathic medication, mentioning a number of drugs.  He also suggested a total knee replacement.  He said the effects of the injuries would persist for the foreseeable future. (DCB 10)

47      He noted “The worker is currently unable to wear enclosed footwear for [any] length of time because of neuropathic pain requiring treatment”. (DCB 11)

48      The professor had carried out another re-assessment of Mr Ferrari, which he reported upon in a letter to the WorkCover insurer dated 18 January 2018.  Professor Boffa noted that Mr Ferrari “had an antalgic gait favouring the left lower limb”. (DCB 15).  According to the professor, Mr Ferrari, at that time, was fit for his pre-injury hours but not for his pre-injury duties.  He concluded that Mr Ferrari would not return to those duties.  He said:

“The worker is fit for full time duties that permanently avoid prolonged standing and walking more than 60 minutes between breaks and repetitive bending, pivoting on his feet and lifting and carrying more than 20 kg.”

(DCB 16)

49      He said “The worker is at maximum recovery capacity”.  The professor said that suggested employment as a retail assistant would be unsuitable because of the repetitive manual handling involved.  He said Mr Ferrari was not qualified for a role as a building inspector.  He said other listed roles were suitable. (DCB 17)

50      The professor provided a final supplementary report dated 3 March 2020.  He said that he considered Mr Ferrari fit for a graduated return to work as a phlebotomist/pathology collector, trainer and assessor (within the construction industry), general clerk (warehouse), equipment hire co-ordinator, service/bookings adviser and scheduling co-ordinator “with special footwear”.  He excluded work as an orderly, light production and process worker, rental sales person or forklift driver “because of prolonged standing, unsuitable boarding and alighting from vehicles and/or unsuitable manual handling”.

51      He would have imposed the following restriction, avoidance of:

“… stairs, uneven or sloping surfaces, sitting and standing more than 60 minutes, walking more than 1km on level ground and lifting and carrying more than 5 kg and this may be the case until he undergoes successful left knee replacement.”

(DCB 20)

52      He said that Mr Ferrari was “deconditioned” and should start with four-hour shifts on three noncontinuous days. (DCB 61)

53      The insurer sent Mr Ferrari for medical assessment to Dr Ralph Poppenbeek, an occupational physician, who assessed Mr Ferrari in late June 2018 and reported to the insurer by letter dated 6 July 2018.  The doctor said Mr Ferrari told him:

“He has medial left knee pain and the knee catches and grinds when he moves it.  The knee feels unstable and weak. There is some collapsing, but no locking. There seems to be some associated soreness in the right hip which Mr Ferrari attributes to the abnormal gait with his left leg. However, the knee does not swell.”

(DCB 23)

54      Mr Ferrari told Dr Poppenbeek:

“In the left ankle there is a feeling of instability and the foot tends to invert when he walks. There is pain in the surgical site and the lateral ankle and top of the foot. There is also medial ankle pain and pain around the Achilles tendon at the back of the ankle.  This has continued since the operation.  The ankle does not lock and has had no collapsing.”

(ibid)

55      Dr Poppenbeek said that he thought Mr Ferrari “should be able to undertake alternative duties at requested hours”. (DCB 26).  The doctor referred to “psychosocial factors”, chief amongst which was Mr Ferrari’s “inability to obtain definitive treatment”. (ibid)

56      At the request of the insurer, the doctor provided a supplementary report dated 14 August 2018.  He said that Mr Ferrari could undertake work as a general clerk/warehouse, equipment hire co-ordinator, service bookings adviser and scheduling co-ordinator.  He believed he would be unfit to work as a hospital orderly because of the strain placed on his left knee in that occupation. (DCB 30-31)

57      An occupational and environment physician, Dr Michael Bloom, examined Mr Ferrari for the insurer on 25 March 2019.  The doctor provided a report of the same date to the defendant’s solicitors.  Dr Bloom described Mr Ferrari as “of flat affect”.  He continued “I gained the impression that he was angry, although he would not confirm that”.

58      According to the doctor, Mr Ferrari:

“… said that my questioning regarding any previous history and mood was irrelevant to his left knee and ankle symptoms, but was then surprised and appeared somewhat angry when I declined his desire to engage in a conversation about neuroplasticity following brain injury.”

(DCB 36)

59      The doctor concluded:

“The outcome of both injuries has been relatively poor despite surgical treatment and a considerable amount of physiotherapy.”

(DCB 38)

60      He said the physical injuries meant “that he is restricted in his functional and work capacity”.  The doctor also referred to “social factors” specifically “probable depression … anger, outrage and workplace dissatisfaction”. (ibid)

61      Dr Bloom concluded that Mr Ferrari no longer has capacity for his pre-injury work and never would have it again.  He continued:

“He does have work capacity, but for restrictive and suitable employment only, and I think he does need to function and work within the following conditions and constraints:

·Avoid squatting, climbing ladders or working at heights.

·Limit repetitive manual handling to loads of no more than about 8kg, with all such manual handling occurring between mid-thigh and chest height and with elbows close to the sides.

·Limit prolonged static posture, prolonged periods of walking and prolonged sitting. In other words, he should change posture reasonably frequently and have the facility to change posture more or less at will.  Walking and standing should be limited to no more than 1 hour at a time maximum, and the same with sitting. Any clerical duties wold ideally be undertaken with the provision of a sit/stand workstation facility.

·Avoid uneven ground and avoid frequent steps and stairways.”

(DCB 40)

62      Dr Bloom said Mr Ferrari “should be confined to sedentary or semi-sedentary/very light work for the foreseeable future”. (ibid)  The doctor felt that work as a general clerk (warehouse) would be appropriate but not as an equipment hire co-ordinator because he believed that such a position “can involve servicing heavy equipment and also manhandling large and heavy equipment”. (DCB 41)

63      He also suggested employment as a service/booking adviser with the proviso that if it entailed assisting passengers with heavy baggage, this would be beyond Mr Ferrari’s capacity.  He suggested a scheduling co-ordinator might be an appropriate position but not a hospital orderly because “demands of such work can be heavy and usually involve working on your feet for prolonged periods of time”. (DCB 42)

64      Dr Bloom believed that Mr Ferrari could transition into sedentary or semi-sedentary work.  He said:

“… his age of 55 years, his lack of transferrable skills and the fact that he said that he sustained a brain injury with resulting cognitive dysfunction suggests that he is unlikely to be able to retrain into anything other than a relatively low skilled occupation.  This means that his likelihood of re-entering the workforce is low. Furthermore, the condition of his left ankle and left knee is likely to deteriorate with further degeneration into the foreseeable future, and this will further limit his level of function and therefore employability.”

(DCB 43)

65      The insurer’s solicitors asked for a supplementary report which Dr Bloom furnished by way of letter dated 19 May 2019.  Being referred to a number of specific positions, the doctor was inclined to the view that a particular forklift driver position would be safe for Mr Ferrari, as would a role as rental salesperson with a vehicle hire business.  Likewise, work as a rental salesperson with a construction equipment rental business would be suitable so long as it entailed no heavy manual handling or stairs or significant squatting. (DCB 45)

66      The defendant’s/insurer’s solicitors also obtained a report from a Ms Sarah Andrews by way of vocational assessment.  Ms Andrews appears to have had access to a range of medical and related reports including a history of Mr Ferrari’s pre-accident employment and his educational history.  Ms Andrews noted that Mr Ferrari “identified his computer skills [as] reasonable, noting he is able to use email, the internet and basic word processing, noting that he could ‘probably’ use Microsoft Word.”

67      Ms Andrews identified a number of options for employment: general clerk (warehouse) with weekly earnings before tax of $1,000; equipment hire co-ordinator with weekly earnings before tax of $1,095; service/bookings adviser with weekly earnings before tax of $1,136; and scheduling co-ordinator with weekly earnings before tax of $978.  She also mentioned the occupation of orderly with weekly earnings before tax of $900. (DCB 46-58)

68      A Suitable Employment Report was furnished to the defendant/insurer’s solicitors by Recovre’s Ms Janette Ash dated 15 May 2019.  The assessment was made as at 17 December 2018.  It identified a number of potential employment opportunities for Mr Ferrari, including forklift driver, rental/customer service officer. (DCB 59-90)  The report included advertisements for the suggested jobs.

69      A further assessment was provided by a Ms Chelsea Nelson of Workskil Employment.  This suggested the options of light production and process worker, phlebotomist/pathology collector and trainer and assessor in the construction industry. (DCB 91-106)

70      A supplementary report dated 17 March 2019 was added to the court book, giving details of employment as a pathology collector.

71      The defendant also added to its court book a letter from Dr Zannat to the insurer dated 9 December 2018.  Dr Zannat said, consistently with all other opinions, that Mr Ferrari remained unsuitable for his pre-injury duties.  The doctor continued:

“But he can work as mail officer/acting SMO jobs that you mentioned in your letter as he does not need to move much and these jobs are not involved with heavy lifting/pushing/pulling.  Any job with long standing without sitting in customer services will not be suitable for him currently.  I believe his pain will improve with current treatment and he will be able to return to some form of employment.”

Conclusion

72      Mr Clements QC and Ms Ryan contended that it had not been proven that Mr Ferrari’s loss of earning capacity was permanent.  They further contended that, even on the basis of the present evidence, it should be found that Mr Ferrari was capable of suitable alternative employment which did not entail a 40 per cent loss of earning capacity.

73      I deal first with the issue of permanence. 

74      The definition of “serious injury” quoted above requires that the impairment be “permanent”.  I was referred to a decision of the Court of Appeal in Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139, where the Court considered an appeal from a decision of this Court rejecting an application for a finding of serious injury on the ground that shortly before trial a new drug and course of treatment was introduced by a new medical practitioner.

75      The Court (Kaye, McLeish and Niall JJA) allowed the appeal.  Their Honours adopted the formulation as to permanence to be found in the earlier decision of the Court in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, 638 [33], where it was said a court’s task was “to determine how far, if at all, the alleged impairment is permanent, in the sense of likely to last for the foreseeable future”. [2019] VSCA 139 [47]

76      The Court, in setting aside the trial judge’s decision, considered that he had erred in treating the new practitioner’s recent involvement in treatment of the plaintiff as “foreclosing acceptance of his application altogether, irrespective of the other evidence pointing to a finding that the consequences of his injury were permanent”. [52]

77      Dr Hermann’s report, which is quoted above, indicates that he is in the course of exploring a number of possible options to treat Mr Ferrari’s ankle injury, including possible custom-made footwear, cortisone injections or surgery.  Mr Ferrari told me that there is another appointment booked for him to have a further consultation with Dr Hermann. (T21, L9-10)

78      The first option examined under Dr Hermann’s advice was the use of clogs which proved unsatisfactory. (ibid, L23-28).  As to surgery, the precise nature remained unclear.  It seems that an internal fixation in that ankle protrudes a little; that is, sticks out from the bone, and this is productive of continuing pain. (T16, L27 to T17, L2).  As to surgery, Dr Hermann had, according to Mr Ferrari, been quite definite that the pin or fixation must not be removed. (T17, L17-20)

79      The possibility of these further treatments or remedial actions open up the possibility that there may be a material improvement in the physical condition of Mr Ferrari’s injured ankle.  Cardoso’s Case, however, shows that this possibility does not rule out a finding on the balance of probabilities (as findings in civil proceedings are to be made), that the present state of affairs relative to the ankle is likely to continue into the future.  In Cardoso’s Case, the Court of Appeal considered that the balance of the evidence should have led the trial judge to a conclusion of permanence in that case. 

80      Approaching the question of permanence in accordance with those principles, the lapse of time since the injury, and the lack of anything specific by way of further treatment identified by Dr Hermann, leads me to conclude that most probably, whilst a material improvement in the injured ankle is possible, the more likely and probable outcome is that there will be no material improvement in the impairment.  It should therefore be treated as permanent.

81      I have already explained why, contrary to the contentions put on behalf of the defendant, no attempt need be made to focus on the consequences of the one injury – to the ankle or the knee – to the exclusion of the other.

82      Mr Brett and Mr Pierorazio urged me to accept the conclusions of Mr Hartley, that no suitable alternative employment was available.

83      Mr Clements and Ms Ryan, without any disagreement from counsel for the plaintiff, calculated that Mr Ferrari’s pre-injury earning capacity at $1,096 gross per week “has been the most he earned in the six-year window”.  They said 60 per cent of that figure, being the amount at which a 40 per cent loss of earning capacity could be regarded as having occurred, was $657 per week gross”. (T76, L30 to T77, L3)

84      If it appeared that suitable employment was available at a rate above $657 gross per week before tax, this would represent more than 60 per cent of pre-accident earning capacity and no finding of serious injury could be made with respect to pecuniary loss.  They noted that all of the alternative employments identified by Ms Ash and not excluded by the occupational physicians, whose reports have been filed, would demonstrate that there had been no 40 per cent loss of earning capacity.

85      They said further, that the occupational physicians who had reported for the defendant should be regarded as of higher authority than the defendant’s expert, Mr Hartley.  They could speak to Mr Ferrari’s physical capacities with an expertise not available to Mr Hartley or any other vocational consultant.

86      Mr Brett and Mr Pierorazio noted the unquestioned physical limitations under which Mr Ferrari labours.  They said, however, that his other limitations would generally preclude him from undertaking the sort of sedentary or semi-sedentary employments that were advocated by the defendant’s expert.  They referred to the finding by defendant’s occupational and environmental physician, Dr Michael Bloom, that Mr Ferrari had “sustained a brain injury with resulting cognitive dysfunction”. (T97, L2-14, DCB 43)

87      This Acquired Brain Injury, it would seem, derives from the very serious 1983 road accident which lies in Mr Ferrari’s background.

88      In conformity with the principle stated by the Court of Appeal in Bezzina’s Case, the judgment of which is quoted above, this pre-existing disability or impairment is a necessary and proper matter to be considered in determining the seriousness of the injuries to the knee and ankle.

89      I accept the submissions on behalf of the plaintiff.  It will be recalled that Mr Hartley commented upon Mr Ferrari’s “brusque manner”.  In the witness box, he presented with a flat affect and a somewhat truculent manner.  It was unrealistic, said Mr Brett and Mr Pierorazio, to think that such a person would be at all suited for any role involving sales, much less a role as a counsellor, which Mr Ferrari had undertaken part of a training course to qualify as. 

90      Again, whilst it was conceded that Mr Ferrari possesses basic computer skills, the more extensive use of computers required in the suggested roles would be beyond him.  There is nothing in his employment history that would demonstrate that he possesses the organisational skills that these various suggested roles would require.  A phlebotomist is required to take blood from persons for analysis.  It requires “people skills” which, upon the evidence and my observations, Mr Ferrari does not possess.

91      It follows, therefore, that leave should be granted to Mr Ferrari to bring a claim for damages extending to a claim for loss of earning capacity.

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