Hadow v Victorian WorkCover Authority
[2014] VCC 65
•23 January 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01415
| ANNETTE WINIFRED HADOW | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2014 | |
DATE OF JUDGMENT: | 23 January 2014 | |
CASE MAY BE CITED AS: | Hadow v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 65 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the neck or cervical spine – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave to the plaintiff pursuant to s134(16)(b) of the Accident Compensation Act 1985 to commence a proceeding to recover pain and suffering and loss of earning capacity damages in respect of injury sustained by her in the course of her employment in August 2008.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Nightingale with Ms O Bromwell | Arnold Thomas & Becker Pty Ltd |
| For the Defendant | Mr D McWilliams with Mr B Penburthy | Thomsons Lawyers |
HIS HONOUR:
1 In this matter, Annette Hadow alleges that she suffered injury to her neck in the course of her employment with Robro Park Management Pty Ltd. She seeks the leave of this Court to issue a proceeding to recover pain and suffering and loss of earning capacity damages in respect of that injury. Her right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”).
2 In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that she suffered a “serious injury”. That term is defined in s134AB(37), insofar as it relates to this application, as “a permanent serious impairment or loss of a body function”. The body function relied upon in this application is that of her neck or cervical spine.
3 The term “permanent” is to be interpreted as meaning likely to persist in the foreseeable future.
4 Subsections (38)(b) and (c) provide that the impairment or loss of a body function shall not be held to be serious for the purposes of such an application unless the pain and suffering or loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.
5 In addition, with respect to loss of earning capacity damages, leave is not to be granted by the Court on the basis that Ms Hadow has suffered the loss of earning capacity required by ss(38)(b) unless she establishes that at the date of this application she has also suffered a loss of earning capacity of 40 per cent or more, calculated in accordance with ss38(e), (f) and (g).
6 Ms Hadow submits that the pain and suffering and loss of earning capacity consequences of her injuries can fairly be described as being more than significant or marked, and at least very considerable. The defendant concedes that the pain and suffering consequences are for her at least very considerable. However, the defendant denies that she has suffered a loss of earning capacity that is serious or which amounts to a loss of 40 per cent or more when measured in accordance with ss(38)(e), (f) and (g). These are the issues to be determined.
7 By way of background, Ms Hadow is fifty-one years of age. She is the mother of two children, currently aged about seventeen and twenty-six. She has been a single mother since separating from her husband in 1996, shortly before she learned that she was pregnant with her second child. She has Year 10 education only.
8 After school, she worked in a milk bar, in a number of factories and was also engaged in work as a cleaner. She did not work much, if at all, following the birth of her first child in 1987 until 2007, when she commenced work with Robro, a company which operated a cabin park, which I understand is similar to a caravan park. Her duties involved the cleaning of cabins, garden maintenance and other duties on occasions. She normally worked three days per week, 5.5 hours per day, or a total of 16.5 hours per week. It suited her to work those part‑time hours as it enabled her to be home for her youngest child, who at the time attended primary school. Occasionally she worked extra days when such work was made available for her.
9 Her evidence was that she intended to move into full‑time work when her youngest son commenced secondary school. In 2008, he was in Year 6, his final year of primary school. He was scheduled to start secondary school in 2009. The defendant submits that, on her evidence, she only intended to work 27.5 hours per week in any event, that is five days at 5.5 hours per day, and I was referred to her evidence to that effect at page 19 of the transcript.
10 I consider that that evidence related to her understanding that full‑time work at Robro would probably only amount to 27.5 hours per week. I do not consider that she was there saying that that was the extent of the full‑time work that she was intending to do once her son moved into secondary school. I accept that she intended to work full‑time, and by this she meant that she intended to work five days per week 9 to 5 and I consider that that would be the view that most persons would have of the meaning of full-time work. By this, I assume that she intended to work at least 35 hours per week. It was suggested that it meant 40 hours per week and possibly 38 hours per week, but in any event, I accept that it means at least 35 hours per week.
11 There was no suggestion that she had any injury or condition that would have prevented her working such full‑time hours prior to the accident of August 2008. I find that prior to August 2008, Ms Hadow had a capacity to work full‑time in the sort of occupations in which she had worked previously; factory work, cleaning and the like.
12 On 5 August 2008, she injured her neck at work. The defendant does not dispute this. The actual circumstances in which she was injured are not relevant to this application.
13 She worked on for a time with some difficulty before finally going off work in about October 2008. She has not worked since. She saw her general practitioner, Dr Jansen, underwent CT and MRI scans, was later referred to Mr Xenos, an orthopaedic surgeon, and also went for physiotherapy. She underwent surgery at the hands of Mr Xenos in June 2009 by way of a discectomy and fusion of the fourth and fifth cervical vertebrae.
14 The nature of her injury is not disputed. On the basis of the medical evidence tendered, I find that she suffered a disc prolapse at the C4‑5 level which compressed the C5 nerve root, and that such injury was associated with underlying but previously asymptomatic cervical spondylosis. She developed and still has symptoms of radiculopathy affecting her right upper limb.
15 I now turn to the consequences of her injury. The defendant has conceded that Ms Hadow has suffered a loss or impairment of her cervical function, the consequences of which are, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked and as being at least very considerable.
16 I accept that the consequences of her injury currently are that she suffers from pain in her neck which is present all of the time, although it does vary in intensity; she suffers pain in the right shoulder, which radiates down the right arm as far as the right hand; she suffers numbness of the right hand, thumb and the first three fingers; she has difficulty performing housework, domestic chores, and other physical activities because of her neck and arm pain, and that she has suffered an inability to return to work. I will return to that subject of work shortly.
17 I note Mr Xenos’s comments regarding the prospects of what he describes as “adjacent level disease deterioration” in his report at page 48 of the Plaintiff's Court Book. I accept his evidence that such deterioration at an adjacent level of her cervical spine is a possibility. However, I do not consider that the evidence establishes that such a potential problem is a probability.
18 The extent of Ms Hadow’s loss of earning capacity is the principal area of dispute between the parties. It is not in dispute, as I understand it, that there has been some loss or impairment of earning capacity. It was conceded that Ms Hadow could not return to her pre‑injury employment as a cleaner as a consequence of her injury.
19 However, the defendant submitted that she was capable of performing the duties of a school crossing attendant or supervisor. Counsel for Ms Hadow submitted that such a job was not suitable employment for her, and that even if it was, she would still suffer a loss of earning capacity of more than 40 per cent if she was able to perform such work. For the reasons that follow, I accept both of those submissions.
20 I am required to have regard in particular to s134AB(38)(b), (c), (e), (f) and (g). The starting point is her wage at the date of injury. She was working 16.5 hours per week generally at an hourly rate of $17.10 per hour, which amounts to $282.15 gross per week, which is the equivalent of $14,672 per annum. There was agreement concerning the wage rate relevant to her for the period referred to in ss(38(f)(ii). It was agreed that on a “without injury” basis an hourly rate of $20 should be adopted for the purposes of ss(38)(f)(ii).
21 The defendant submits that the figure to be applied for the purposes of ss(38)(f)(i) is that applicable to that of a school crossing supervisor who would be paid $28.80 per hour and would work 15 hours per week for 41 weeks per year. That equates to $432 for each of those 41 weeks, $17,712 per year or, averaged over 52 weeks, $340.60 per week.
22 The defendant says that ss(38)(f)(ii) is a lesser figure of $330, being what Ms Hadow could have earned at Robro without injury, that is 27.5 hours per week at $20 per hour, or $550 per week. Sixty per cent of $550 is $330 per week. That 27.5 hours is calculated as being 5.5 hours per day for five days per week.
23 It follows, counsel for the defendant submitted, that Ms Hadow has not suffered a 40 per cent loss because she is presently capable of earning approximately $340 per week as a school crossing attendant, whereas 60 per cent of her “without-injury” earnings at Robro would be $330. So it follows, according to counsel for the defendant, that she has not suffered a 40 per cent loss. I do not accept that submission.
24 I find as follows. Without injury, Ms Hadow, in August 2008, had a capacity to work full‑time or at least 35 hours per week. She had a capacity to earn at least $36,400 a year, or $700 per week. That is, 35 hours at $20 per hour. As a school crossing supervisor she could, if such employment was suitable for her, earn $17,712 per annum or $330 per week. The evidence did not disclose any other employment that was said to be suitable for her. Earnings as a school crossing supervisor would be, accordingly, less than half of what she could have earned in full‑time employment in the same sort of work that she had previous experience in: factory work or as a cleaner.
25 I am satisfied that she would, in those circumstances, suffer a loss of more than 40 per cent when calculated in accordance with ss(38)(f), even if she was suitable to work as a school crossing supervisor. I considered the fact that Ms Hadow was only earning some $282 per week up until the date of her injury as merely one of the factors to be taken into account in determining Ms Hadow’s “without‑injury” earning capacity as referred to in ss(38)(f)(2).
26 In written submissions, counsel for the defendant submitted that her without‑ injury earnings would be $330 per week; that is, 16.5 hours per week at $20 per hour, 60 per cent of which was $198 per week. In oral submissions, he submitted that the figure would be calculated on the basis of 27.5 hours per week at $20 per hour, $550 per week, 60 per cent of which was $330 per week.
27 However, I find no reason to base the “without‑injury” earning capacity figure on either 16.5 or 27.5 hours per week. Her evidence, which I accept, was that she intended to work full‑time from the year following the accident when her son entered secondary school. Although she acknowledged that the full‑time work at Robro was likely to be 27.5 hours per week, I see no reason why it should be assumed that she would only have worked for that employer or only had a capacity to work for that employer. Her evidence was that if she assumed full‑time work it would be 9.00am to 5.00pm five days per week.
28 Further evidence supporting the view that it would be inappropriate to base her earning capacity solely on employment with Robro comes from the affidavit of Victoria Brown tendered by the defendant. She is an employee of Robro and states that Ms Hadow was likely to have been made redundant in that employment with Robro as early as December 2008. The wording of ss(38)(f)(ii) requires me to assess her “without‑injury” earning capacity. It does not require me to assess what income she was likely to have earned without injury over the relevant period. There is no reason, in my view, to read down the plain words of the subsection.
29 In any event, counsel for Ms Hadow disputes the suitability of the position of a school crossing supervisor for her. Amongst the material tendered by the defendant were documents entitled “Work Site Assessment and Task Analysis of a School Crossing Supervisor”, appearing a page 136 of the Defendant's Court Book, and “Physical Demands of Job”, which appeared at page 137 of the Defendant’s Court Book. The documents spell out that the physical environment in which such a job is performed is that there may be high volume vehicle traffic, it may be noisy, and that it is open to the elements. It is expressly stipulated that good vision and hearing are essential.
30 I find that Ms Hadow has poor hearing. Her evidence, which I accept, was that she is required to wear a hearing aid in her left ear, and this provides some assistance to her. She has very little hearing in her right ear and it is too badly affected to be assisted by a hearing aid. I observed her give evidence in this court room. She was able to understand the majority of questions asked of her. But the court is a quiet room with relatively good acoustics and only one person talking at a time, at least generally so. Even so, she needed to have a number of questions repeated in order for her to understand them. She stated that she has learned to lip read to an extent and this assists her to understand what is being said to her. She stated that in a situation where there is a background noise it is difficult to understand conversation, for example in a restaurant. When she met someone in the street, it was necessary for that person to be on her good, or left‑hand side, for her to hear what they were saying.
31 The school crossing supervisor’s job would involve supervision of numbers of young children approaching from different directions, and I assume exhibiting different qualities of discipline and commonsense. It is not surprising that good vision and good hearing are considered essential for the job. I consider that Ms Hadow’s hearing could not be described as good and that it is most unlikely that she would qualify for employment in such a position. This was the only position suggested by the defendant that would be suitable employment for her.
32 I further note the evidence of Dr Jansen, Mr Klug, Dr Castle and Professor Teddy, and consider that their opinions confirmed that, from a practical point of view, there is unlikely to be any employment suitable for Ms Hadow now or in the future.
33 I acknowledge the report of Mr Nye, who opined that she had a capacity for light work with physical restrictions as set out in pages 13 and 14 of the Defendant’s Court Book.
34 However, I note the evidence of Ms Bryant, the occupational therapist engaged by the defendant, that realistically the only position considered suitable for Ms Hadow was that of a school crossing supervisor. The defendant did not rely upon the earlier report of Ms Bryant, and submitted that only her second report of 17 December 2013 was relevant. For the reasons previously set out, I do not consider that position is suitable for her.
35 In conclusion, for the reasons set out above, I am satisfied that Ms Hadow has suffered a “serious injury” as defined in the Act. I am satisfied that she suffered a loss of earning capacity of more than 40 per cent, calculated in accordance with s134AB(38).
36 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 for her to commence a proceeding to recover pain and suffering damages and loss of earnings damages in respect of injuries suffered by her in the course of her employment with Robro Park Management Pty Ltd.
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