Gommers v Woolworths Limited

[2013] VCC 827

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION

Case No. CI-10-05115

ALBERT GOMMERS	Plaintiff
v
WOOLWORTHS LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 13 and 14 May 2013
DATE OF JUDGMENT:	25 June 2013
CASE MAY BE CITED AS:	Gommers v Woolworths Limited
MEDIUM NEUTRAL CITATION:	[2013] VCC 827

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION
Catchwords:            Serious injury – back injury – loss of earning capacity
Legislation Cited:     Accident Compensation Act 1985, s134AB(16), (37), (38)(e), (38)(f);
Cases Cited:            Humphries & Anor v Poljak [1992] 2 VR 129

Judgment:                Leave granted for pain and suffering damages only. 

Application for leave to proceed for loss of earning capacity dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell SC with Mr D Purcell	Maurice Blackburn Pty Ltd
For the Defendant	Mr R Dyer	Gadens Lawyers

HIS HONOUR:

1 The plaintiff in this action seeks leave to commence common-law proceedings against the defendant, his former employer, Woolworths Limited, pursuant to s134AB(16)(d) of the Accident Compensation Act 1985 (“the Act”) in respect of both pain and suffering and loss of earning capacity damages. 

2       The application refers to an injury to the plaintiff’s lumbar spine which he sustained in the course of his employment, in particular, on 15 June 2004 while working as a butcher for the defendant at its premises at 224 Mount Dandenong Road, Croydon.  At the time of the injury, he was attempting to lift a heavy box of meat.

3 At the hearing, it was conceded by the defendant that the plaintiff had suffered a “serious injury” within the meaning of s134AB(37)(a) of the Act with respect to pain and suffering consequences.  Paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.  As a consequence of this concession, the defendant conceded that the impairment to the plaintiff’s lumbar spine, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable” and more than “significant” or “marked”.  Further, the concession includes that the consequences of the injury are serious to the plaintiff and the consequences will relate to the plaintiff’s pain and suffering such that leave should be granted under that particular head.[1]

[1]          Humphries & Anor v Poljak [1992] 2 VR 129 at page 140

4 In his opening, defence counsel indicated that the only issue was whether the plaintiff was able to prove that after the date of the hearing, he would continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more, pursuant to s134AB(e) and (f) of the Act.

5       In light of the concessions made, the facts of the case as relied upon by the plaintiff can be summarised as follows.  The plaintiff is a forty-two-year-old married man who completed a butchering apprenticeship after leaving school in Year 9 and since that time has essentially worked as a butcher.  In 1999, he commenced working for the defendant in various supermarkets in the eastern suburbs of Melbourne.  For the last few years of his employment, he was a manager at Monbulk, and then Croydon. 

6       On 15 June 2004, he was required to unload a pallet of boxes into a cool room and, as a result of lifting one of the boxes from a lower shelf, he experienced sudden low-back pain with symptoms in the left leg.  He attended his general practitioner and was placed off work.  He was sent for a CT scan that disclosed a L5-S1 disc prolapse with a sequestrated disc fragment.  He sought treatment from a number of neurosurgeons and surgeons.  He attempted to try and continue performing modified duties until being forced to cease in August 2005.

7       He eventually came under the care of Mr Wilde, a specialist orthopaedic surgeon, and in February 2008, underwent surgery in the form of a charite disc replacement at L5-S1.  He initially felt some improvement in his symptoms and was able to return to work.  He obtained some part-time work as a butcher with a friend who owned a butcher’s shop in Mornington.  He tried to work there for about a month, working five hours a day, three days a week and then ceased.

8       At about that time he opened his own small business called “A1 Knife Sharpening”.  This was approximately in mid 2008.  As time went on, he became increasingly depressed, such that by late 2011, there had been a number of suicide attempts and he was self mutilating, particularly his leg.  He was admitted to the Victoria Clinic under Dr Gelman where he was an inpatient for eight weeks and underwent repeated ECT therapy which helped for a period.  In approximately July of 2012, the plaintiff obtained work at the Oakleigh Market in a butcher’s shop through a friend.  The case was opened that he was working there one day a week, which was a Tuesday, about five or so hours, and was cutting up meat to put on trays for display. 

9       During cross-examination, defence counsel tendered into evidence, without objection, pay advice slips for the period 22 July 2012 until 20 January 2013.  This evidence disclosed the following information:

Week Ending	Number of Hours	Gross Pay
22 July 2012	38	$871.11
29 July 20012	38	$871.11
5 August 2012	38	$871.11
12 August 2012	38	$871.11
19 August 2012	5	$114.28
26 August 2012	5	$114.28
2 September 2012	5	$114.28
9 September 2012	30	$688.26
16 September 2012	30	$688.26
23 September 2012	30	$668.26
30 September 2012	30	$688.26
7 October 2012	17	$388.54
14 October 2012	19	$434.25
28 October 2012	19	$434.25
4 November 2012	16	$365.69
11 November 2012	8.5	$194.27
18 November 2012	6.5	$148.56
25 November 2012	6.5	$148.56
2 December 2012	6.5	$148.56
9 December 2012	6.5	$148.56
16 December 2012	6.5	$148.56
23 December 2012	30	$688.20
30 December 2012	24	$528.83
6 January 2013	20	$457.11
13 January 2013	6.5	$148.56
20 January 2013	17	$391.13
27 January 2013	7	$159.99
“The first period”

10      With respect to the first period, the plaintiff stated in cross-examination that the hours worked in that period were at the direction of his employer to him as a casual employee and that the hours worked were those that were available, rather than those he was able to work.[2]

[2]Transcript T27, L20 and see also T33, L5-8 with respect to the second period

11      The plaintiff then swore that he lost this job because another person who could speak Greek was hired in his place.  He then obtained another part-time casual job with another friend, being Mr Nicholas Malizia, who was the manager of Cut Fresh Meats in Bentleigh.  He still works there two to three days per week, five to six hours per day, and he is paid at the rate of $24 gross per hour.  He swore that he did some serving of customers and cutting up of meat.  He has an apprentice who lifts the meat and does any heavy work.  The work is light and the plaintiff believes that he is working as much as he can with his back injury (“the second period”).

12      Given the concessions made by the defendant and the state of the evidence referred to above, plaintiff’s counsel made the following submissions regarding loss of earning capacity. 

(1)The plaintiff is fit for suitable employment on a part-time basis performing light butchering work up to about 25 hours per week. 

(2)All medical practitioners are of the opinion that the plaintiff cannot resume his pre-injury employment.  The following medical evidence was relied upon:

(i)Mr Wilde, the treating surgeon – the plaintiff has a physical work capacity for sedentary or light duties at 20 hours per week.  The prognosis is poor.[3]

[3]Plaintiff’s Court Book (“PCB”) 97

(ii)Dr Clayton Thomas, rehabilitation specialist – the plaintiff could work with restriction 5 hours per day for four days per week or perhaps increase to 25 hours per week if the work was very light.[4]

[4]PCB 45

(iii)Mr Max Wearne, defendant’s orthopaedic surgeon – there is a current work capacity as at March 2013 of 5 hours per week.[5]  Mr Wearne was of the opinion that the plaintiff’s condition had deteriorated since his previous medical examination in September 2011, indicating to him that the disc replacement might already be beginning to fail.[6]

[5]Defendant’s Court Book (“DCB”) 103

[6]DCB 102

(3)The plaintiff’s “without injury” earnings are $57,383.17.[7]

[7]Exhibit N. Section 134AB(38)(f)(ii)

(4)The plaintiff’s “with injury” earnings are less than $662 per week, which would qualify him for leave pursuant to statute.[8]

[8]Section 134AB(38)(f)(i)

(5)The plaintiff has attempted to resume modified light duties in accordance with medical evidence.  His average earnings during the first period as disclosed by Exhibit 3 amount to $450 gross per week.

(6)The Court should find that the plaintiff has met the necessary economic loss threshold by reference to his part-time employment during the first period.

(7)The plaintiff is currently employed on a part-time basis at Cut Fresh Meats and he has deposed he works there two to three days per week for 5 to 6 hours per day at $24 per hour.  Last week, the plaintiff work on Monday and Thursday from 6.00am until 4.00pm and on Friday from 6.00am until 2.30pm, a total of 8.5 hours.  From these hours there should be deducted two hours for lunch and other breaks, for which the plaintiff is not paid on Monday and Thursday and also one hour on Friday.  It was submitted this results in a total number of hours he works to be 23.5 hours.  When this is multiplied by the hourly rate of $24, the weekly rate becomes $564, which is less than the putative threshold rate of $662 per week.

(8)Plaintiff’s counsel makes the following submissions on the evidence:

(i)Last week was an unusual week because of Mother’s Day.[9]

(ii)The plaintiff usually finishes “around lunch time”.[10]

(iii)The plaintiff requires daily medication that increases when he is working including OxyContin and Endone.[11]

(iv)The plaintiff was sent home early on Friday last week with back pain.

(v)The plaintiff has breaks every hour as well as a one-hour lunch break.

(vi)The employer knows the plaintiff has a “crook back” and cannot get work elsewhere.[12]

(vii)There is no evidence that the plaintiff could perform this work on a full-time basis or for any greater hours.

(viii)The Court should find that the plaintiff is fit for suitable employment as a butcher performing light work up to about 10 to 15 hours per week and, as such, he has suffered a loss of earning capacity of 40 per cent or more in accordance with the formula in s134AB(38)(f) of the Act.

[9]T35, L8

[10]T56, L5-9

[11]T32, L30-31; T63, L26-27

[12]T58, L10-11

13      In terms of the first and second periods, the defendant concedes that the plaintiff has made out a prima facie case for leave to claim economic loss, if the Court accepts that the evidence disclosed in Exhibit 3 with respect to the first period and the oral evidence of the plaintiff with respect to the second period, is to the effect that that evidence represents the limit of the plaintiff’s earning capacity.

14      It is also conceded by defence counsel that the prima facie case with respect to capacity is supported by the medical opinions, with the exception of Dr Baynes who had seen the plaintiff in 2009.[13]

[13]Exhibit 12

15      Defence counsel, however, has put a strong submission to the Court that the plaintiff has not discharged the onus of proof, particularly because he has not been prepared to be frank with the Court as to the extent of his work capacity during the first and second periods, such that he probably has a greater capacity than alleged; or alternatively, his evidence is so unreliable that the opinions expressed by the medical witnesses are similarly unreliable.  I shall return to this matter.

Medical Evidence

16      The treating surgeon, Mr Peter Wilde, last examined the plaintiff on 5 February 2013.  He was provided with the first affidavit of the plaintiff sworn 6 July 2010.  He took a further history that both the plaintiff and his wife are supported by Centrelink and the plaintiff himself is on a permanent disability pension.  The plaintiff told Mr Wilde he was now managing to work five hours per week as a part-time butcher at the Oakleigh Market.  He felt he could do more work, but such work was not available.  His current employer was not able to offer him more hours of employment at the moment.  Mr Wilde reiterated the history of injury on 15 June 2004 and it was recorded that the diagnosis was one of discogenic lumbosacral pain and a disc arthroplasty was recommended.  Surgery took place at Epworth Hospital on 18 February 2008. 

17      Further, the post-operative course was uneventful and the plaintiff completed a routine post-operative rehabilitation.  Thereafter, the plaintiff was able to do some work knife sharpening, approximately 15 hours per week.  Following some epileptic seizures in March of 2009, the plaintiff lost his licence and job hunting became almost impossible.  Mr Wilde recited:

“Nevertheless he did work in various part time positions and with the help of Dr Richard Barclay-Young, his psychologist, he was able to obtain some employment.  Indeed employment has continued until the present time where he told me he is doing five hours per week.  At various times he is able to do more work and he has recorded that in May 2011 for a number of weeks he did full time work in both a butcher’s shop and his own knife sharpening business.  This however resulted in a significant increase of pain.”[14]

[14]Exhibit F, 5 February 2013, page 3

18      At present the plaintiff reported less pain in his low back than prior to surgery by perhaps 30 per cent to 40 per cent.  Nevertheless, pain levels did fluctuate and on a good day he rated pain at 1 or 2 out of 10, and on a bad day, 7 or 8 out of 10.  There are referred symptoms into his right proximal leg with occasional tingling into his right foot.  His right foot feels cold.  There is no muscle wasting or weakness and bowel and bladder function is quite normal.  He is able to do tasks at home such as washing the dishes and vacuuming.  He is able to drive a car short distances only as he has received his licence back after the epileptic seizures.  Current medications are OxyContin, 50 milligrams per day; occasional Endone; Cymbalta; Crestor, 10 milligrams daily; Phenergan at night; Largactil, 75 milligrams; Marne, 100 milligrams nocte; Lyrica, 600 milligrams daily; Seroquel daily; Imovane nocte; Avanza, 45 milligrams daily; and Temazepam, 10 milligrams.  Pain severely restricted homemaking/employment tasks, except for light tasks. 

19      On this occasion, physical examination by Mr Wilde revealed good spinal posture, diminished movements of the lower back restricted by pain.  There was no deformity.  Neurological examination of the lower limbs revealed no definite neurological findings, but there were restrictions in movements of the spine.  At present, Mr Wilde considered the diagnosis was one of Chronic Pain Syndrome with mixed aetiology of physical and functional origin.  The physical contribution was the injury to the disc.  The physical component of his pain has reduced with a disc replacement; however, the perceived outcome of the surgical treatment overall has been disappointing, as the plaintiff has required ongoing narcotic medication and has gone on to develop anxiety and depression and has required further treatment.  The physical condition has stabilised. 

20      The prognosis regarding his back is poor.  Mr Wilde expected that he will continue to experience lumbar pain and stiffness.  He will have to modify personal and work activities to accommodate his symptoms and to avoid further deterioration.

21      Relevantly, when examined on 5 February 2013, the plaintiff was managing to work 5 hours per week as a part-time butcher at the Oakleigh Market.  There is no physical reason why he could not increase his hours to 20 hours per week over the next twelve months.[15]  

[15]Exhibit 5, 5 February 2013

22      Finally, he considered that his current status was not likely to improve or to deteriorate substantially in the foreseeable future.

23      The plaintiff was also examined for the defendant by Mr Max Wearne, orthopaedic surgeon, on 13 March 2013.[16]  He similarly took a history that the plaintiff was working 5 hours one day per week.  He considered that this was probably the extent of his capacity, although he could probably progress his hours up to 15 hours over a period of time. 

[16]Exhibit 11

24      The plaintiff also relied on Dr Clayton Thomas, rehabilitation specialist, who saw the plaintiff on 18 February 2013.  He too took a history that the plaintiff was only working 5 hours per week but thought that he could increase it up to 20 hours per week.[17]

[17]Exhibit D

25      There is no doubt that the current medical evidence relied upon justifies the concession made by the defendant regarding pain and suffering consequences and supports a prima facie case for economic loss on the basis postulated by plaintiff’s counsel. 

Credit

26      This matter came on for hearing originally on 2 May 2013, at which time the plaintiff was relying on two affidavits sworn 6 July 2010 and one sworn 1 May 2013.  Defence counsel sought an adjournment because the defendant wished to investigate the information revealed in the latter affidavit about the work performed during the first and second periods.  The matter was subsequently adjourned part-heard until 13 May 2013, with costs reserved.  No further affidavit material was filed by the plaintiff and he subsequently swore that the contents of the affidavits were true and correct at hearing on 13 May 2013. 

27      An admission was sought from the plaintiff that the plaintiff had served an affidavit from the employer with respect to the second period and when the defendant gave notice of cross-examination, the affidavit was withdrawn.  No further evidence was received as to its contents.  Accordingly, there was no documentary or other evidence from the plaintiff’s employer for the second period with respect to earnings or capacity et cetera.  Having obtained the admission from the plaintiff to the above effect, defence counsel asked the Court to infer that the document in question would not have assisted the plaintiff’s case and I am disposed to make that inference.

28      By paragraph 11 of the affidavit sworn 1 May 2013, the plaintiff attested that he worked one day a week at the Oakleigh Market during the first period for a duration of five hours on Tuesday, “when the market was closed just cutting up meat for meat trays.”  Under cross-examination, when Exhibit 3 was put to him, he disagreed that he had in fact worked as extensively as the document purportedly discloses.  The document was subsequently received into evidence without objection from plaintiff’s counsel and no further evidence was adduced as to the actual earnings or work performed during the first period. 

29      That evidence discloses that the plaintiff was able to work 38 hours a week for four weeks in the latter half of last year and 30 hours per week for a further four weeks.  Thereafter, the exhibit discloses he worked for various periods between 6.5 hours and 19 hours per week.  This evidence is at marked variance with paragraph 11 of the affidavit sworn on 1 May 2013 and confirmed as true and correct at the hearing in evidence-in-chief.  When asked if there was any other explanation other than reflecting the plaintiff’s credit with respect to this variance, plaintiff’s Senior Counsel advised there was not. 

30      Although the plaintiff’s viva voce evidence with respect to the second period is consistent with paragraph 11 of his affidavit, the fact that there is no evidence from the employer during the second period which would corroborate hours of work, remuneration paid and/or extent of duties, is quite significant.  The plaintiff has given a history to the three doctors referred to above this year that he worked five hours per week during the first period.  He has sworn an affidavit on 1 May 2013 to similar effect and affirmed same in the witness box on 13 May 2013.  No explanation has been forthcoming as to an alternative inference to be made other than the plaintiff’s credit in this regard.

31      Accepting plaintiff’s counsel’s submission that the “without injury” earnings sum is $57,383.17 annually, or $1,103 per week, the 60 per cent threshold becomes $662 per week, or 27.58 hours at $24 per hour.  Given that the plaintiff worked for at least eight weeks late last year in excess of this period, and agreed that the hours were those stipulated by the employer rather than relating to his capacity, I regrettably find that he has not discharged the onus of proof with respect to his capacity to only be able to work less than 27 hours per week. 

32      Accordingly, the application for leave to proceed for economic loss is dismissed and leave will be granted to the plaintiff to issue proceedings at common law with respect to pain and suffering damages.

33      I will hear the parties as consequential orders.

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