Gazis v Violet Banner Pty Ltd and VWA
[2011] VCC 494
•6 April 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05027
| ANGEL GAZIS | Plaintiff |
| v | |
| VIOLET BANNER PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7, 8, 9 and 10 March 2011 |
| DATE OF JUDGMENT: | 6 April 2011 |
| CASE MAY BE CITED AS: | Gazis v Violet Banner Pty Ltd and VWA |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 494 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(37)(a) – pain and suffering and loss of earning – serious injury to the lumbar spine – leave granted
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Nowicki Carbone |
| For the Defendants | Mr R Meldrum QC | Hall & Wilcox |
| with Ms H Donmez | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the first defendant after 20 October 1999 and in particular on or about 28 April 2006.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function. … (c) permanent severe mental or permanent severe behavioural
disturbance or disorder.”
5 The body function relied upon in this application is injury to the lumbar spine involving an aggravation, acceleration or exacerbation of the degenerative changes in the lumbar spine. The disturbance or disorder relied upon for the purpose of paragraph (c), is a Major Depressive Disorder and Pain Disorder.
6 The plaintiff relied upon four affidavits, three sworn by the plaintiff on 2 June 2009, 27 July 2010 and 3 March 2011 and an affidavit of Chrisos Kominatos sworn 28 July 2010. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities,
that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant on 26 April 2006.[2] (b) the impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.[3] (c) under s.134AB(38)(b) of the Act: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (op cit) at paragraph [33]
“… 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 … .”(i) The Court notes that s.134AB(38)(b) of the Act provides that the consequences of an injury in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event the worker satisfies sub-paragraph (i) but not sub-paragraph (ii) of s.134AB(38)(b) of the Act, the worker is entitled to have leave to bring a proceeding for the recovery of “pain and suffering” damages only;
(ii) If a worker satisfies the test in the Act for loss of earning capacity, then the worker is at large to make a claim for damages (i.e. for pain and suffering and loss of earning capacity).4
(d) under s.134AB(38)(c) of the Act: “an impairment or loss of a body function [in this case, the pain and suffering] … shall not be held to be serious … unless the … consequence or 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 …, fairly described as being more than significant or marked, and as being at least very considerable.”
(e) under s.134AB(38)(d) of the Act: “a mental or behavioural disturbance [in this case the pain and suffering or the loss of earning capacity] … shall not be held to be severe … unless the … consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.”
9 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:5
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”6
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent,
by what has been retained.”7
12 The test for “serious” and “severe”, as set out in paragraphs (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”. The meaning of “severe” is of stronger force when used in s.93(7) of the Transport Accident Act.8
13 In determining the application, the Court:
Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170, at [63]
[2009] VSCA 181
Ibid at [42]
Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
Mobilio v Balliotis [1998] 3 VR 833, at 846
(a)
must make the assessment of “serious injury” at the time the application is heard.[9]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[10]
[9] S.134AB(38)(j) of the Act
[10] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
14 In considering consequences, the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.[11]
[11] S.134AB(38)(h) of the Act
15 In considering consequences, the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (a) of the definition of “serious injury” and not otherwise.[12]
[12] S.134AB(38)(j) of the Act
The Issue
16 Counsel for the defendant informed the Court that causation of the injury was in issue. The nature and extent of any injury or aggravation to the spine or lumbosacral spine was contested. The seriousness of any consequence from such an injury was also contested.
17 As to the plaintiff’s claim for a psychiatric condition, counsel for the defendants submitted that the consequences are not severe. An issue of disentanglement arose, in that in considering whether the plaintiff suffered a serious injury under paragraph (a) of the definition of “serious injury”, the psychiatric/psychological consequences must be excluded, and in considering serious injury under paragraph (c), physical consequences must be excluded.
18 The plaintiff’s work capacity is in issue, as was his credit.
The Plaintiff’s Evidence
19 There were deficiencies in the first two affidavits prepared by the plaintiff’s solicitors, in that an extensive history of the plaintiff had been omitted and there were inconsistencies in the information provided. The plaintiff relied upon the third affidavit, sworn 3 March 2011, as a complete account of all relevant history and facts, and deposes that:
•
He was born on 8 November 1950 in Greece and migrated to Australia in 1962. He completed Year 6 in Greece, but had no fluency in English. He continued his schooling in Australia to Year 9 and is able to read reasonably well in English, but has difficulty writing English.
•
In 1965, after leaving school, he commenced an electrician apprenticeship with Davis and Tilly, where he remained for five years and gained an electrician qualification. During this time, he also worked part- time in take-away shops and as a bike and car repairer. In 1970, he obtained a part-ownership in Sammy’s Bistro, and commenced working there as a barman. He remained there until 1980, when he sold his share of the business. He then commenced work as an electrician with W Tolson & Co Pty Ltd, where he worked for two or three years. He then worked as a domestic electrician with APPS Electricians. In 1985 and 1986, he worked as an electrician for TPM Electrics.
•
In late 1986, he commenced work at ‘The Arab Restaurant’, which was owned by Vafkeri Catering Pty Ltd, of which his mother and brother were directors. In 1991, he left The Arab Restaurant and in December 1991, purchased and operated a business that he renamed ‘Angelo’s at the Pier’. In June 1992, he went bankrupt and Vafkeri Catering Pty Ltd purchased the restaurant and renamed it ‘Pier Seafood Restaurant’. He continued to work at the restaurant and also returned to The Arab Restaurant. In mid-2004, he ceased working at The Arab and assisted in establishing a new restaurant in Torquay, which was owned by himself, his brother and his nephew. After the business was established he ceased working there. In 2005, he returned to work at the Pier Seafood Restaurant. He believes that his wages were paid by Violet Banner Pty Ltd.
•
On 28 April 2006, he injured his spine while putting a box of cream weighing approximately 3 kilograms onto the top shelf of a rack of shelves. As he stretched upwards and towards the back of the shelf he slipped backwards and twisted sideways and fell. His fall was broken by another rack of shelves and he struck his back and neck.
•
Following the incident, he saw Dr Beaumont, general practitioner, who prescribed anti-inflammatory medication and Panadeine Forte. He took those medications, but continued to have pain, particularly in his lower back and left leg. On 11 May 2006, he saw Dr Brayshaw at the Belmont Medical Centre, who referred him for a CT scan on 16 May 2006.
•
On 30 May 2006, he was referred to Dr Daniels, psychiatrist, for treatment for depression as a result of the pain. He saw Dr Daniels on a number of occasions, but cannot recollect the dates. On 2 October 2007, he resumed seeing Dr Daniels on a regular basis and was prescribed various medications, including Zertraline and Imovane. In early 2011, Dr Daniels referred him to Brad Johnson for psychological counselling.
•
On 14 June 2006, he attended the Geelong Osteopathic and Health Care Clinic, where he received treatment on approximately fifteen occasions until 2 September 2006.
•
On 7 August 2006, he was referred to Mr White, consultant surgeon, for abdominal pain, but he does not recall receiving any treatment. He believes the abdominal pain was a result of the pain medications he was prescribed, and he had to reduce the amount of pain medication he took.
•
On 1 September 2006, he was referred to Mr Lu Ton, an orthopaedic surgeon. He continued to be seen by Mr Ton during 2006 and 2007. In mid-2007, he received an epidural injection at St John of God Hospital in Geelong. This provided some relief of his symptoms for some months. He had a further epidural injection on 27 August 2010.
•
On 2 September 2006, he was referred to David Shannon, a physiotherapist. He received regular physiotherapy and hydrotherapy from Mr Shannon for approximately one year.
•
He experiences constant pain centred in his lower back and extending down through his left leg. He continues to suffer anxiety and depression, is irritable and looses his temper more easily than before the injury.
•
His ongoing treatment includes consultation with Dr Brayshaw, who prescribes Panadeine Forte (6 to 8 tables per day), Lyrica and medications for diabetes and cholesterol; Dr Daniels, who prescribes Cymbalta and Temazepam to assist with sleeping; Brad Johnson for fortnightly psychological treatment; and Debra Murphy for physiotherapy twice weekly. He is scheduled to see Dr Muir, a pain management specialist, on 30 May 2011 and to have another epidural injection on 4 March 2011.
•
After the injury, he remained off work until early 2008. In January 2008, he attended a JSA rehabilitation program, but was unsuccessful in gaining employment. In mid-2008, he returned to work with the first defendant on light duties, but persistent lower spine problems caused him to cease work in late 2009.
• His medical history includes:
ƒ In December 2001, he fell heavily on his right side while at work. ƒ
In January 2002, he consulted Dr Raleigh and was prescribed Panadeine Forte, Digesic and Vioxx and referred for physiotherapy.
ƒ
On 11 January 2002, he had a CT scan, which showed degenerative disc changes with some radiculopathy. He continued to work at The Arab Restaurant, but suffered persisting spinal pain, which resulted in him suffering stress, anxiety and depression. He does not recollect receiving treatment for these symptoms.
ƒ
In June 1994, he fell and injured his right shoulder while working at The Arab Restaurant. He consulted Dr Beaumont in Lorne and received pain medication, but did not require time off work.
ƒ
In 1985 and 1986, he suffered a right leg injury and a right shoulder injury while working for TMP Electrics. He believes these injuries were resolved with no ongoing disability.
ƒ
On 10 October 1985, he consulted Dr Kounnas in Springvale for back pain after lifting a heavy pole while working for APPS Electricians. He had persistent problems with spinal pain, and on 21 October 1985, he had an x-ray of his lumbosacral spine, which suggested low-grade degenerative disc change. On 10 April 1987, he told Dr Kounnas that he was taking Panadeine when he had lower back pain.
ƒ
In about 1978, he suffered right hip and lower back pain caused by falling from a ladder while working for W Tolson & Co Pty Ltd. He had about two years off work. His claim was settled in about 1981.
•
He does not currently receive WorkCover payments but receives a NewStart allowance. He is concerned that the constant nature of his pain and disability combined with his age, education and vocational history means he will be unable to return to employment.
•
His social, recreational and domestic activities have been impaired. He avoids activities that strain his spine and has trouble sitting or standing for extended periods of time. He has difficulty getting comfortable in bed and has interrupted sleep. His increased pain makes him irritable, which has affected his relationship with his wife. He does not go out as much as he did before the injury and is restricted in his ability to undertake home and car maintenance. He used to enjoy fishing, but no longer goes fishing. Before the injury, he enjoyed swimming and participated in the Lorne ‘Pier to Pub’ swimming race, but has not done so since the injury.
20 Mr Christos Kominatos, a cousin of the plaintiff, deposed, on 27 July 2010, that:
• he is a qualified chiropractor; •
he is aware that the plaintiff suffered a lower back injury whilst working at the Pier Seafood Restaurant in Lorne on or about April 2006;
•
the plaintiff’s ongoing low-back pain has made it difficult for him to drive long distances without regular breaks. Prolonged sitting causes lower back pain. When getting out of the car he needs to support himself to lift himself up;
•
the plaintiff limps when he first gets up after being seated for some time. His walking improves after he has moved around a bit;
•
Since the injury, the plaintiff’s mood and demeanour have changed. He seems depressed and pessimistic. He is angry and frustrated.
The Plaintiff’s Evidence in Cross-Examination
21 The plaintiff was cross-examined and gave the following pertinent evidence:
•
He agreed he usually takes more medication than is prescribed if he needs it.
•
He was asked why he had omitted a detailed history of his medical condition from his first affidavit. He said “I left it to my solicitors to do it”.
•
He agreed that before April 2006 he had “a mental thing, but I wasn’t taking any medication for it”. He said it was not depression, “No, just blowing up a bit”.[13] He said he had not suffered from any depression before the fall in the Pier Restaurant.
•
He agreed that soon after the accident he was drinking heavily. He said it was because he was in pain. He did not know if it was a bottle of whisky. He said he might drink a few glasses but not a bottle. He then said, “The bottle of whisky is two, the little ones, you buy them”.[14]
• He said his memory had gone backwards.[15] •
He said when he last worked at the Pier Restaurant he was operating the cash register, folding serviettes and making coffee, as well as vacuuming. He said he did not work at the Pier Restaurant in 2010. He was asked whether he had done any vacuuming at the Pier Restaurant in 2010. He said, “I might be there, but I can’t recall it. It’s a year past now”.[16]
•
He was shown a film of him vacuuming. He said he was showing a young person how to do it.
[13] T 112
[14] T 120-121
[15] T 142-143
[16] T 148
22 In re-examination, the plaintiff said:
•
He returned to work, undertaking light duties at the Pier Restaurant in early 2008, which continued until late 2009 when symptoms deteriorated.
•
He agreed that he can go to the Pier Restaurant at any time. Sometimes he might go twice a week or three times a week. It was a family business of sorts.
•
On 15 April 2010, he was vacuuming around the windows because there were flies and he was showing a young person how to vacuum. He agreed he vacuumed for thirteen minutes. He went home and could not lift anything. He lay down for the rest of the day. He received no payments.
•
He agreed that he uses Morphine patches, which last for five days. He takes two Lyrica and two Panadeine Forte, four times a day as required. He agreed that there were days when he was free of pain. He said if he had a good sleep he does not use as much medication. When he does not have a good sleep he is nervous. He said he had epidural injections in the past and was due to have one on 4 March 2011. They ease the pain and he can move freely and take less medication. He said he has blow-ups, when he just screams. He said at present little things annoy him, noise even. Sometimes, if he travels by train, he has to sit in the corner. He cannot be confined to small places. He says he sweats and gets sick and hits the walls.
•
He has spent a large part of his working life in hospitality. He said it is very important to get on with people in the hospitality industry, both staff and customers.
•
When he returned to work in 2008, an incident occurred at work when a co-worker had had a drink. He asked her to go out and have a cigarette and come back and she called him “a wog and everything and I gave her a backhand”, which resulted in him striking the co-worker.
•
He said he has had side-effects from medication. He becomes more “nervous, tense, and sort of blind in front of me”. He said since the injury, he had always taken tablets.
23 At the end of the re-examination, he said:
“I feel now I can hit somebody. I am tired, you know, I’m going to lose it.
That is what I feel like it now.”[17]
[17] T 189
Investigations
24 On 21 October 1985, a radiological report of the lumbo-sacral spine reported:
“The L4-5 disc space is slightly narrowed suggestive of low-grade
degenerative change.
No other abnormality seen in the lumbar spine and the sacro-iliac joints are within normal limits.”
25 A CT scan of the lumbo-sacral spine taken 16 May 2006 concluded:
“Multi-level posterior disc bulges with minor contact of the origins of the S1 nerve root and osteophytic contact of the left L5 nerve root. Extensive degenerative disease is noted within the facet joints.”
26 On 28 September 2006, an MRI scan of the lumbar spine concluded:
“Multi-level disc degeneration is present, maximal at L5-S1. This is thought to be a transitional level. There is a posterior annular disc bulge with end plate osteophyte formation, and a low density left foraminal disc protrusion seen at this level, but the L5 nerve roots appear to exit freely above this.”
27 A CT scan of the lumbar spine taken on 19 September 2007 concluded:
“1 L5-S1 disc degeneration with a small central and left sided disc
herniation involving the left S1 nerve root origin.
2 Right L5-S1 facet degeneration.”
28 On July 2010, an MRI scan of the lumbar spine was performed. The conclusion was:
“Multilevel disc herniations most notably at L2-3 where there is an inferiorly extending left paracentral extrusion which contacts the budding left L3 nerve root in the lateral recess.
Broad based disc bulges at L1-2, L3-4, L4-5 and L5-S1 with a subtle annular tear at the L4-5 level.
Central disc protrusion at T10-11.”
The Plaintiff’s Medical Evidence
29 Mr Lu Ton, orthopaedic surgeon, saw the plaintiff at the request of his general practitioner. He provided reports dated 1 September 2006, 27 October 2006, 11 May 2007 and 6 July 2007.
30 In September 2006, Mr Ton said the plaintiff presented with a four-month history of intermittent low-back pain radiating to the lateral aspect of the ankle and top of foot. He said the problem started after an accident at work. He viewed the CT scan of the lumbar spine taken in May 2006. His diagnosis was mechanical back pain with left L5 radiculopathy secondary to canal stenosis. He recommended continuing with anti-inflammatories and referred the plaintiff to physiotherapy. He organised a functional x-ray and an MRI scan of the lumbar spine.
31 In October 2006, Mr Ton said the plaintiff reported worsening pain despite intensive physiotherapy and medications.
“Clinical examination revealed the range of motion was poor due to pain
with persistent nerve root irritation.”
He was to be reviewed in three months.
32 In May 2007, Mr Ton reported to the plaintiff’s general practitioner there had been minimal change in the plaintiff’s symptomatology. He said clinical examination revealed the range of motion was poor due to pain. He organised for the plaintiff to have an epidural injection.
33 In a report of July 2007 following a review by the plaintiff’s general practitioner, Mr Ton reported worsening of the pain despite intensive physiotherapy and medications. He diagnosed mechanical back pain with L5 radiculopathy, secondary to disc herniation and foraminal stenosis at the L5- S1 level.
34 The plaintiff was referred to Dr Patrick Daniels, psychiatrist, by his general practitioner in May 2006 and was seen on nineteen occasions, the most recent being 24 September 2010. In May 2006, Dr Daniels said the plaintiff gave a history of a month of low mood, anxiety associated with loss of interest, irritability, poor sleep associated with early morning wakening, along with poor memory, concentration and panic attacks. The plaintiff said the symptoms coincided with the development of back pain and headache following a fall at his workplace. He was treated with anti-depressant medication. Dr Daniels diagnosed a Major Depressive Disorder, severe, without psychotic features.
35 On 11 November 2008, Dr Daniels assessed the plaintiff’s depressive symptoms using the Hospital Anxiety and Depression Scale. These indicated high scores for anxiety and depression.
36 In March 2009, Dr Daniels was concerned about the severity of the plaintiff’s condition and the fact that he had increased his alcohol intake and become more depressed and had described an exacerbation of pain. Dr Daniels attempted to arrange a hospital admission for the plaintiff. There was a delay in obtaining approval and the plaintiff elected to continue to receive treatment on an out-patient basis.
37 Dr Daniels said that since 30 May 2009, he has continued to see the plaintiff intermittently. At each assessment he described symptoms of anxiety and depression that were associated with periods of substance abuse, which the plaintiff attributed to his increasing and widespread pain. The plaintiff described ongoing depressed mood and widespread physical discomfort. He reported that the pain made it difficult for him to sleep and at times he would use illicit substances, including marijuana and heavy alcohol to alleviate the pain.
38 In September 2010, Dr Daniels’ current diagnosis was Major Depressive Disorder and a Pain Disorder associated with a general medical condition, and psychological factors. Dr Daniels considered the plaintiff’s condition was related to the injury he sustained in April 2006. He considered the psychiatric condition was stable and was likely to persist into the foreseeable future. He considered the plaintiff would require ongoing psychiatric treatment, including psychiatric medications and psychological treatment for his condition, and ongoing anti-depressant medication. He said the plaintiff’s mood symptoms are associated with irritability, mild cognitive difficulties that affect his interpersonal and social relationships and have impacted on his ability to socialise appropriately and maintain his marriage. He considered that his psychiatric condition has had a considerable effect on the plaintiff’s ability to engage in his usual social, recreational and domestic pursuits. He said the restriction is likely to be of a long-term nature and as a consequence of his psychiatric condition, the plaintiff does not have a work capacity and is unlikely to have a capacity for employment for the foreseeable future.
39 In a letter to the defendant’s insurer dated 10 July 2006, the plaintiff’s general practitioner, Dr Nick Brayshaw, said that the plaintiff had two problems; namely, back pain/sciatica and depression. He said at that time the plaintiff was unable to work on account of either condition. He said the duration of his incapacity was difficult to predict, that he expected he would be able to return to work within the next month or two.
40 In April 2010, in a letter to the defendant’s insurer, Dr Brayshaw said that the plaintiff sought treatment on 11 May 2006 following his injury at work. He complained of lower back pain, which radiated down the lateral aspect of the left knee to the big toe; associated ‘pins and needles’ and his leg gave way at times. He said examination findings were consistent with nerve root irritation, with impaired straight leg raising; power and reflexes were intact initially. Currently the plaintiff was suffering ongoing back pain, leg pain, headaches and depression. He was subject to angry outbursts, so minor tensions or disagreements could easily provoke him to physical aggression. He manages to curb his aggression by walking away from a confrontation.
41 Dr Brayshaw was provided with employment options proposed by Konekt but believed that the plaintiff would be unable to perform any of the jobs listed for the following reasons:
• Despatch clerk, concierge and postal officer all involve levels of physical activity beyond his physical capability; • Sales assistant, events coordinator and ticket seller all involve interpersonal interactions with which the plaintiff struggles and which the doctor expects would be likely to result in frequent arguments with customers and/or workmates. 42 It was Dr Brayshaw’s view that the plaintiff was unable to return to any occupation based on his education, training and experience.
43 In February 2011, in a letter to the plaintiff’s solicitor, Dr Brayshaw reported that the plaintiff had two medical conditions, musculoskeletal and psychiatric, in relation to which he suffered low-back pain and leg pain due to lumbar spine problems; multilevel vertebral degenerative changes and multilevel lumbar disc degenerative bulges. He said the scans showed widespread degenerative disease in the lumbar spine, probable nerve root impingement, particularly left S1 and L5 and more recently L3, as well as a progression in severity of disease over time. He said that the presence of pre-existing degenerative lumbar spine disease helped explain, and was consistent with, the severe aggravation of symptoms by a relatively low impact injury. He considered the plaintiff’s symptoms were consistent with the demonstrated pathology. It was his view that the plaintiff’s pain was clearly related to organic lumbar spine disease. He noted that the plaintiff did have pre-existing degenerative changes in his lumbar spine, but said his reported symptoms clearly date from the date of injury. He said the plaintiff’s psychological suffering had been severe and a consequence of a Major Depressive Disorder. In Dr Brayshaw’s view, the plaintiff’s depression was largely as a consequence of his back injury. He thought that the depression had likely magnified his suffering of his physical pain. He said it was impossible to entirely unravel the contributions of his spinal pathology from psycho pathology. He said they are extremely entwined on many levels. However, he considered that each condition was currently contributing approximately equally to the plaintiff’s overall suffering.
44 He said the plaintiff’s pain caused significant disability and greatly limited the options in a physical sense.
45 Dr Brayshaw considered that the plaintiff’s physical incapacity had prevented him from performing most domestic tasks. He said the plaintiff could not contribute to his family either emotionally or financially or in terms of doing household chores. He said the plaintiff could only sit in the car for a limited time and he felt dependent on family to transport him. The plaintiff started using illicit drugs, mainly cannabis, gambling and escalating his alcohol abuse. He has become distant from many of his former friends. It was Dr Brayshaw’s view that the plaintiff’s quality of life had been diminished quite dramatically and across all facets of his life. He said the plaintiff had lost his sex drive and was impotent. He considered his progress had been disappointing over the last four to five years and he thought it clearly unrealistic to hope that there would be a dramatic improvement in the foreseeable future. Dr Brayshaw said the plaintiff would benefit from lumbar facet joint injections, hydrotherapy and exercises under supervision of a physiotherapist and more regular reviews by his general practitioner. Dr Brayshaw said the plaintiff was taking extensive medication for his back injury. Dr Brayshaw said the plaintiff had no realistic work capacity for pre injury duties, nor for any work duties as a result of his back injury.
46 He accepted that the plaintiff’s depression was a consequence of the injury in April 2006.
47 The plaintiff’s depression and associated emotional volatility and anger precluded other working environments. He considered the plaintiff had no realistic capacity for pre-injury duties, nor for any work duties. He reported that the plaintiff, whilst attempting to resume work duties at his brother’s restaurant, was unable to cope with the interpersonal communications and lashed out at a waitress. He thought the plaintiff would benefit from more frequent attendances at a psychiatrist and ongoing counselling and psychotherapy.
48 In June of 2010, the plaintiff was seen by Mr Thomas Kossman, orthopaedic surgeon, at the request of the plaintiff’s solicitor for the purpose of a medico- legal report. The plaintiff provided Mr Kossman with a detailed history of work-related injuries in 1981, 1985 to 1986, 1996 to 1997, 2001 and April 2006. Mr Kossman said that each of the accidents had added to the present condition. At the time he was examined by Mr Kossman, the plaintiff was working four to five hours per day for two to three days per week. The plaintiff complained of pain in the left side radiating into his left leg, buttocks, thigh, calf and left foot. He complained that he could not sit for too long or stand for too long. The pain caused sleeping problems. He was depressed and anxious.
49 Mr Kossman diagnosed back pain, multilevel degenerative changes, and multi disc bulges of the lumbar spine; depression and anxiety. He accepted the injuries were consistent with the accident and that the plaintiff’s injuries were stable. He accepted that each of the six different accidents had added to the plaintiff’s present condition and that some of them had led to the degenerative changes that are now obvious on a multilevel scale.
50 He said the significance of the MRI scan of the lumbar spine of September 2006 is that the plaintiff not only suffers from disc degeneration at the L5-S1 level, but throughout the entire lumbar spine. In comparison to the scans previously performed in 2001 and 2006, there seemed to be an acceleration of degenerative changes in the lumbar spine. He said this pathology is of clinical significance, because the plaintiff’s clinical symptoms and signs in the form of severe lower back pain are highly likely to result from these degenerative changes. The changes are responsible for the pain which radiates into his left leg. It was Mr Kossman’s view that there is an organic basis for the plaintiff’s complaints. He said the plaintiff’s injuries are stable, and physical symptoms are connected to his employment which was a significant contributory factor. He considered the plaintiff’s injuries are permanent and likely to persist into the foreseeable future. He noted that the plaintiff was working limited hours, two to three days per week, on light duties. The plaintiff informed him that he tried to avoid twisting movements or bending during his work. Mr Kossman believed he had an optimal work capacity as described by the plaintiff so long as he worked on light duties.
51 Mr Kossman accepted that the plaintiff’s injuries had a substantial affect in relation to his social, domestic, recreational and employment activities and the restrictions were likely to be of a permanent nature.
52 The plaintiff was seen by Associate Professor Warren Boling, neurosurgeon and spinal surgeon, at the request of the plaintiff’s solicitors in June 2010 and again in February 2011. The plaintiff provided Mr Boling with a detailed history of his injuries since 1981. Mr Boling referred to April 2006 as the plaintiff’s major work injury. It was his view that the plaintiff had a pain syndrome involving the back and left leg, which was consistent with discogenic disease, possibly facet arthropathy of the lumbar spine with left leg radiculopathy. He said the pain the plaintiff described is typical for an organic disc disease and radiculopathy. He considered that the plaintiff’s symptoms and injury were stable. He accepted the plaintiff’s injury was causally related to his employment and that the plaintiff’s pain syndrome is chronic and likely to continue into the foreseeable future. He accepted that the plaintiff’s pain does and will impact on his ability to engage in social, domestic and recreational activities. He was of the opinion the plaintiff would not be able to return to his pre-injury employment, as it was manual, labour-type work, and his pain symptoms would not allow this. He noted that the plaintiff had no additional training and he thought his ability to learn new skills would be very limited given his low level of education. His general prognosis was the plaintiff was unlikely to be able to return to employment and particularly unable to return to his pre-injury employment into the foreseeable future.
53 The plaintiff was medically examined in January 2011 by Dr J Richard B Ball, psychiatrist, at the request of the plaintiff’s solicitor. Dr Ball commented only on his psychiatric injury. He said the plaintiff had:
“… a depressive illness which in the old terminology could be regarded as a reactive depression or chronic adjustment reaction with depression and anxiety consequential upon his physical problems. In addition, he has a problem with alcohol misuse.”
He was aware that the plaintiff was drinking heavily before the accident.
54 He said that the depressive illness appeared to have occurred following the exacerbation of his back problems associated with the work injury. He considered the psychiatric condition was very much secondary to his physical problems and the associated limitations and, while they continued, he is likely to continue having psychiatric difficulties. He accepted the plaintiff’s depression was quite severe and that the plaintiff’s alcohol consumption had been at a dangerous level. He said the plaintiff’s secondary psychiatric condition does affect his overall situation, in that it affects motivation and volition. The combination of his physical and psychiatric conditions has led to major deterioration in his psycho-social situation and family relationships.
55 He accepted that the psychiatric component has had a marked influence on the overall situation. In respect to the plaintiff’s work capacity, he said that if the plaintiff’s physical difficulties improved, this would have a positive effect on the secondary psychiatric problem. He thought associated more intensive psychiatric/psychological management and possible modification of medication could maximise the possibility of any return to the workforce. However, he said that the plaintiff should not work in hospitality/restaurants unless it is clear that his alcohol intake is well controlled for a considerable time. He was unable to say that the plaintiff’s incapacity is indefinite at this time.
The Defendants’ Medical Evidence
56 The plaintiff was medically examined by Dr Carol Newlands, psychiatrist, at the request of the defendants’ insurer in 2006. She provided a history of alcohol consumption which has increased after his injury, a lack of motivation and energy. Dr Newlands diagnosed an Adjustment Disorder with Depression and Anxious Mood, secondary to his back injury. She accepted that the plaintiff’s condition was contributed to by his back injury and the consequent limitations that this has had upon him. From a psychological perspective, she said the plaintiff was not unfit for all work.
57 In November 2009, Mr Michael J Dooley, orthopaedic surgeon, at the request of the defendants, examined the plaintiff. Mr Dooley said the plaintiff had a mild to moderate loss of lumbar spine function as a consequence of the compensable injury. He said the loss of function will persist for the foreseeable future. He expected the plaintiff’s condition to deteriorate with time over and above the natural evolution of his degenerative disc disease. He thought he was unfit to perform heavy physical work or work that involved a lot of lifting. He thought he was capable of suitable employment, working in a bar tending and barista capacity as long as he avoided regular heavy lifting or a lot of bending.
58 In 2010, Mr Dooley said that his views were as previously outlined. He accepted that the plaintiff’s work-related episode in April 2006 aggravated an underlying degenerative disc disease of the lumbar spine. He said that the constancy and intensity of the plaintiff’s ongoing pain were out of proportion to the injury sustained and to the degree of underlying degenerative disc disease. He noted that there had been a psychological reaction to the injury and that the plaintiff had been treated for depression. He considered that there had been a mild to moderate loss of lumbar spine function which would persist for the foreseeable future. He thought the plaintiff’s condition could be self-managed. He thought the plaintiff was unfit to carry out regular heavy physical work or work that involved bending and lifting. From an orthopaedic view, he thought the plaintiff could carry out light physical work and clerical duties. He thought much of his current presentation related to his psychological condition.
59 In July 2009, the plaintiff was examined by Dr Steven Stern, psychiatrist, at the request of the defendants’ solicitor. He considered the plaintiff was suffering from a Major Depressive Disorder, which was related to his work injury of April 2006, and the continuing pain. He accepted employment was a material and significant contributing factor. He noted that he had no history of any pre-existing psychiatric disorder and that there had been alcohol and gambling problems since his injury. He thought the plaintiff was, from a psychiatric aspect alone, fit for his pre-injury employment. His psychiatric prognosis was guarded.
60 In June 2010, he said the plaintiff had a worsening of his Major Depressive Disorder since his previous examination. He thought his worsening depression, agitation and anger would make any regular work difficult. He thought this working capacity was likely to persist into the foreseeable future. He said that the plaintiff’s psychiatric prognosis is guarded; the plaintiff may be left with chronic depression in reaction to his chronic pain.
61 In July 2008, the plaintiff was seen at the request of the defendants’ solicitor by Dr Terry M Chong, psychiatrist. Dr Chong said the plaintiff was unwell, drinking excessive alcohol. He diagnosed an alcohol abuse and Adjustment Disorder with Mixed Anxiety and Depressed Mood. His prognosis was uncertain. He said the plaintiff needed to be in an alcohol rehabilitation treatment program. He said his Anxiety and Depressed Mood was likely to continue and might even deteriorate. He accepted that the plaintiff’s employment was a major contributing factor to his Adjustment Disorder but was not sure in relation to the alcohol abuse. From a psychiatric point of view, Dr Chong said the plaintiff had a partial capacity for suitable employment within his physical capacity and for work for which he has the required skills and training. When he was examined by Dr Chong, he was working light duties, four hours a day, in the restaurant. Dr Chong thought he could probably work four hours a day, five days a week, and more hours when he resolved his alcohol abuse problem.
62 In June 2008, the plaintiff was examined by Mr Michael Shannon, orthopaedic surgeon, at the request of the defendants’ insurer. It was Mr Shannon’s view that the plaintiff had sustained an aggravation of a pre-existing lumbar disc degeneration. He noted that he had left sciatic symptoms. His diagnosis was the plaintiff had chronic lumbar disc degeneration with disc protrusion at L5-S1. He thought his employment was a material contributing factor to the aggravation of the condition. He considered he was not fit for pre-injury employment, but had a capacity for suitable part-time supervisory duties.
63 In July 2006, the plaintiff was examined by Dr James Rowe, specialist occupational physician, at the request of the defendants’ insurer. It was his view the plaintiff had suffered injury to the lower back, more than likely at the L5-S1 disc, or the L4-5 disc, causing irritation of the S1 and/or L5 nerve root on the left. He accepted that the contributing factor was the fall that happened at work and that age-related degenerative change in the back was also contributing. He thought the plaintiff probably suffered some sort of disc derangement. Dr Rowe noted that he was depressed but he thought he was fit for alternative duties that do not involve constant standing or heavy lifting and if such work could be found, there is no reason why he could not return to work on a part-time basis.
64 In December 2006, Dr Rowe thought that the plaintiff was fit for alternative duties. He had had an epidural and there had been substantial improvement.
Vocational Assessment Report
65 In April 2007, a vocational assessment was conducted by Konekt. The following jobs were identified as suitable employment options for the plaintiff: despatch clerk; sales assistant; concierge; events coordinator; mail sorter and ticket seller.
66 In September 2009, Konekt reported that the plaintiff should continue with vocational rehabilitation services, together with physiotherapy and psychiatric treatment, and that he should be re-assessed for return to pre-injury employment either in two to three months, or when his capacity improves.
67 A vocational assessment report dated July 2010 was provided by Katrine Green Consulting Pty Ltd. Ms Katrine Green had access to medical reports from the following: Mr M Dooley; Dr P Daniels; Dr N Brayshaw; Dr S Stern; Mr M Shannon; Mr L Ton and Dr J Rowe, and reports by Konekt Pty Ltd. She noted that there was a mixed view on the plaintiff’s symptoms and work capacity.
68 Ms Green said Mr Dooley considered that the plaintiff has a capacity to undertake suitable employment but he would not be able to perform heavy physical work that involved a lot of lifting. Mr Dooley suggested clerical duties, bar tending and barista occupations as suitable employment options. In contrast, Dr Brayshaw said the plaintiff was physically unfit for work and that his progress was poor. Dr Shannon thought the plaintiff could perform a supervisory role in a restaurant but not physical work, and that he did not have a capacity for pre-injury employment.
69 She disregarded the reports of Mr Ton and Dr Rowe, as she considered they were too old to be relevant to his current situation. She also noted that the plaintiff had been diagnosed with a psychological condition and that Dr Daniels considered the plaintiff did not have a capacity for any suitable employment, whilst from a psychiatric perspective, Dr Stern considered he could undertake his pre-injury employment.
70 She noted the plaintiff’s education, which she described as very elementary, both in Greece, and for a short period in Australia. She noted that he often worked two jobs, that he had mainly worked in the restaurant/café industry. She noted that he had been dependent on physical capacity, not academic attainment, for his employment. She said he had reasonable English language conversation skills; however, his literacy skills are limited. His reading skills are adequate only and he has difficulties with writing including spelling. She said the plaintiff did not have sedentary transferrable skills that would allow him to work in an occupation where he would be able to organise his daily duties around his physical tolerances. She noted he was computer illiterate and that he did not have the required literacy skills or work history to be eligible for clerical/administration occupations.
71 She said that given his education, vocational training, work history and transferrable skills, the occupations which should be considered are: café and restaurant manager; café worker; bar attendant; kitchen hand; courier; trade assistant/electrical labourer and factory process worker. She conducted an analysis of each of those occupations and concluded that, having regard to the medical opinions provided and the physical demands of the core duties, with the plaintiff’s current physical capacity, he would be unable to perform the inherent duties of his previous occupation or any suitable employment.
72 She said that from a psychological/psychiatric perspective, he was unable to perform the inherent duties of his previous occupation or the inherent duties of any suitable employment.
Video Surveillance
73 The plaintiff was surveilled for a total of 116.75 hours, of which there was a total of 68 minutes of film. I accept that a video is a snapshot in time and that a plaintiff with injuries as the plaintiff described, may have days when he is able to do more activities than on other days. The film showed the plaintiff walking slowly, driving a car and having coffee with people. It also showed the plaintiff vacuuming at the Pier Restaurant. However, given the number of hours of surveillance, if the plaintiff was cleaning on a regular basis, I would have expected that surveillance would have uncovered this. Apart from the vacuuming, the surveillance did not disclose anything inconsistent with the plaintiff’s capacity as described in his evidence. The surveillance did not assist the defendants.
Credit of the Plaintiff
74 Counsel for the defendants said the plaintiff’s credit was in issue in the proceeding. First, the defendant cross-examined the plaintiff at great length on his first and second affidavits, despite the fact that there was a third affidavit which was more complete and which the Court was told was sworn to overcome the defects in the earlier affidavits. Further, the plaintiff said in evidence-in-chief and re-examination, that he was entirely dependent on his solicitors to provide him with competent legal advice as to the matters which were required to be included in his affidavit relevant to his application. Second, counsel for the defendants cross-examined the plaintiff, again at great length, particularly in relation to the medical histories that he had given to the various doctors. The defendants submitted that the plaintiff had significant undisclosed problems of a psychiatric and physical nature which were not fully disclosed to specialists, and as a result, their opinions are impaired.
75 In Franklin v Ubaldi Foods Pty Ltd.[18] The Court of Appeal said:
“Concerning the history as recorded, two observations may be made. First, the question what history was given to a doctor potentially raised questions both as to what the history-giver said, and what the history- taker recorded. To assume an inevitable monopoly of right on one side or [over] the other would run counter to experience. Second, in the present case it would have been remarkable if there had not been some variations in the appellant’s history as recounted to the very large number of doctors who had examined him over the years.”[19]
[18] [2005] VSCA 317 (21 December 2005)
[19] at paragraph 22, footnote 5
76 In the present case, the plaintiff had a history of work accidents, in particular, two years absence from work in 1978 and another year or fourteen months in 1985. He had a medical history that was complex and it is to be expected that there may be some variations in his history.
77 There were a number of inaccuracies in the medical reports which are difficult to reconcile; for example, the number of children he had and whether or not he had travelled overseas. There were many inconsistencies in the evidence he gave in cross-examination. I find the plaintiff is unreliable and I must look at his evidence cautiously. However, I am required to consider the whole of the evidence, including medical and vocational assessment reports, to determine whether the plaintiff satisfies the relevant test.[20]
[20] Grace v Elmasri and Anor [2009] VSCA 111
Analysis of the Evidence
78 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course, of his employment with the first defendant. All of the medical witnesses accepted the injury was work- related.
79 Under s.134AB(38)(h) of the Act, the Court, in assessing pain and suffering consequences of a physical injury, must exclude the psychological or psychiatric consequences of the injury.[21]
[21] S.134AB(38)(h)
80 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s.134AB(37), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically-based: see Barwon Spinners Pty Ltd & Ors v Podolak.[22]
[22] (supra) at paragraph [70]
81 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and (b) loss of earning capacity. 82 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[23] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[24] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[25]
[23] S.134AB(38)(b) and (c)
[24] S.134AB(38)(e), (f) and (g)
[25] Advanced Wire & Cable Pty Ltd & VWA v Abdulle (supra),at [63]
83 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
The Narrative Test
84 I shall consider the narrative test first. Section 134AB(38)(b) of the Act requires the term “serious”:
“… to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function … [as the case may be] with respect to—
…
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible
impairments or losses of a body function … .”
85 Section 134AB(38)(c) then provides:
“An impairment or loss of a body function … shall not be held to be serious for the purposes of subsection (16) unless … 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 … [as the case may be], fairly described as being more than significant or marked, and as being at least very considerable.”
86 The Court of Appeal has emphasised that the task of a Judge in making a serious injury determination involves a “fact, degree and value judgment”.[26] In determining whether the narrative test is met, a court is required to evaluate the consequences of the impairment not the injury itself. A court must evaluate the consequences of the particular impairment and then make an objective determination, by comparing the consequences with other cases in the range of possible impairments. In addition, the court must be satisfied that the consequences are “more than significant or marked”.
[26] Humphries v Poljak (1992) 2 VR 129, 167; Dwyer v Calco Timbers Pty Ltd (2006) VSCA 187 ([41]
87 The plaintiff has sustained an injury to his lumbar spine. The consequences of that impairment are that he can no longer return to his pre-injury employment, nor can he engage in employment which requires him to perform his pre-injury duties.
88 Mr Dooley, in June of 2010, said the plaintiff was capable of light physical work and clerical duties.
89 In 2011, his general practitioner, Dr Brayshaw, said the plaintiff had no capacity for any work duties due to the pain which causes significant disability and greatly limits his options in a physical sense.
90 Professor Warren Boling, in February 2011, agreed that the pain symptoms would not allow the plaintiff to return to his pre-injury duties which were manual-labour type work. He said that the plaintiff had no additional training and his ability to learn new skills would be unlikely given his low level of education and ongoing cognitive side-effects from medication. He thought it very unlikely that he would return to the workforce in the foreseeable future. This is consistent with the view of Ms Katrine Green, in the report provided by Katrine Green Consulting Pty Ltd. Ms Green had assessed a number of medical reports, as well as interviewing the plaintiff. She described the plaintiff’s education as very elementary, and noted that he had been dependent on physical capacity for his employment. She noted that whilst he had reasonable English language conversation skills, his literacy skills were limited, his reading skills were adequate only and he had difficulties with writing and spelling. She said he did not have skills for clerical/administrative occupations. She concluded, due to his physical capacity, he was unable to perform the inherent duties of any suitable employment.
91 In June 2010, Mr Kossman thought the plaintiff was working light duties, four to five hours per day, two to three days per week. However, that light duty work ceased in 2009. Mr Kossman said he could continue on light duties. I accept that he misunderstood the current position of the plaintiff’s employment. Accordingly, I do not take Mr Kossman’s view on work capacity into consideration.
92 The plaintiff is aged fifty-nine years. He had been employed for many years before the injury, other than for periods following work injuries in 1978 and 1985. For much of the time he has worked in the hospitality industry managing restaurants. As a result of the aggravation to the lumbar spine he has now lost the ability to be employed in the hospitality industry. Further, the evidence is that the plaintiff can no longer perform manual work, the only work for which he is qualified or has work experience. He has very few transferrable skills. This represents a significant loss to the plaintiff, both with respect to his enjoyment of life and self-esteem.
93 I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being more than significant or marked and properly regarded as serious when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test.
94 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory Test – Loss of Earning Capacity
95 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 96 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury earnings”; and (ii) “after injury earnings”. 97 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
98 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
99 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity.
100 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) of s.134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[27]
[27] (supra) at paragraph [70]
101 In terms of timing, the comparison between “without injury earnings” and “after injury earnings” is not necessarily consistent. The “after injury earnings” are calculated as at the date of trial (s.134AB(38)(e)), whilst the “without injury earnings” are calculated by reference to the six-year period specified in s.134AB(38)(f). So if the hearing to determine the question of serious injury takes place more than three years after the date of injury, it would not necessarily be an equivalent or parallel comparison: see Acir v Frosster Pty Ltd.[28]
[28] [2009] VSC 454 at [157]
102 I am therefore required to determine a “without injury” earnings figure based on a six-year period specified in s.134AB(38)(f).
103 The plaintiff’s current earnings from personal exertion are nil.
104 The evidence is that the plaintiff has not returned to work. All doctors expressed the view that the plaintiff could not return to his pre-injury employment due to his physical injury.
105 Of the most up-to-date reports, the plaintiff’s general practitioner, Dr Brayshaw, and Professor Boling, were of the view that the plaintiff had no realistic work capacity. Given his low level of education and his ongoing cognitive side-effects from medication, he does not have the ability to learn new skills, which fits in with the vocational assessment report from Katrine Green Pty Ltd. Mr Dooley thought the plaintiff was capable of light physical work and clerical duties.
106 Based on the plaintiff’s presentation in Court and the views of his general practitioner, Professor Boling and the Green report, I think it highly unlikely that the plaintiff would obtain, in the open market, light duties of a type which would enable him to return to work.
107 Accordingly, I find that the plaintiff satisfies the arithmetical formula established by the Act.
108 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g) of the Act.
109 None of the medical reports suggested that further rehabilitation would assist the plaintiff. As to re-training, that has been considered by a number of the medical practitioners and vocational assessment reports. All conclude that due to the plaintiff’s low level of education and his difficulties with reading, re- training would not assist him.
110 Accordingly, I do not consider that re-training and rehabilitation will alter the situation that the plaintiff has a loss of earning capacity of 40 per cent or more.
111 I accept that the consequences of the injury are permanent within the relevant section, that is, for the foreseeable future. There is no medical opinion that any treatment will alter the current course.
112 The above position is reached purely by reference to the plaintiff’s physical condition. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act.
113 Accordingly, I am satisfied that the plaintiff has established that he has met the requirements of paragraph (f).
114 I have not considered the application under paragraph (c) as the plaintiff has established a serious injury under paragraph (a).
115 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering and loss of earning capacity is successful.
Findings
116 Finally, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law against the defendants seeking damages for pain and suffering and loss of earning capacity as a result of his employment with the first defendant.
117 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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