Hamilton v Victorian WorkCover Authority
[2018] VCC 1878
•14 November 2018
Russ
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted |
SERIOUS INJURY LIST
Case No. CI-18-01102
| PETER HAMILTON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 7 and 8 November 2018 | |
DATE OF JUDGMENT: | 14 November 2018 | |
CASE MAY BE CITED AS: | Hamilton v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1878 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering – economic loss – fracture and dislocation of the left ankle – fracture of the left tibia – scarring to the left ankle and left leg – consequential arthritic change – whether the plaintiff has capacity for pre-injury duties – whether the plaintiff has the capacity for full-time suitable employment – whether suitable jobs are available in the plaintiff’s area
Legislation Cited: Accident Compensation Act 1985, S134AB(16)
Cases Cited: Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
Judgment: Leave granted in respect of economic loss and pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell SC with Mr A Dimsey | Hounslow Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms F Spencer | IDP Lawyers |
HIS HONOUR:
1 This is an application pursuant to s134AB(16) of the Accident Compensation Act 1985 (the Act) by the plaintiff, Peter Hamilton, for leave to commence proceedings for damages in respect to the economic loss consequences and pain and suffering consequences of an injury suffered by him whilst employed as an operations manager by Keith Hamilton & Sons Pty Ltd, the authorised insurer of whom is the Victorian WorkCover Authority which, in these reasons, will be referred to as “the defendant”. The injury relied on by the plaintiff is a fracture and dislocation of the left ankle, a fracture of the left tibia, scarring to the left ankle and left leg, and consequent arthritic change. The body function relied on by the plaintiff is his left ankle and left leg.
2 Keith Hamilton & Sons Pty Ltd (KHS) is a construction and demolition company based in Ararat. The plaintiff is a director and shareholder of the company and has been employed by it since 1978. It is accepted by the defendant that he is a worker for the purposes of the Act. KHS is mainly engaged in civil contracting work and the plaintiff was engaged in the pouring of concrete slabs for houses, supermarkets, footpaths and the like.[1] In the course of his duties, he also drove trucks and construction machinery.[2]
[1]Plaintiff’s Court Book (PCB) 18
[2]PCB 18
3 On 24 February 2014, while pouring concrete at a construction site located at Bultes Timber and Hardware in Ararat, the plaintiff fell into an uncovered foundation pier hole, causing the fracture to his left ankle and left tibia. He was transferred to Ararat Hospital by ambulance and then to St John of God Hospital in Ballarat, where corrective surgery was performed by Mr Matthias Russ, an orthopaedic surgeon.[3]
[3]PCB 40
4 In support of the application, the plaintiff tendered three affidavits affirmed by him on 15 June 2015, 22 October 2018 and 25 October 2018. He attended the hearing of the application, gave evidence and was cross-examined. No other oral evidence was called and otherwise the parties relied on the medical and other evidentiary material tendered by them.
5 The plaintiff was born in Ararat on 24 July 1962 and is now aged 56. He left school without completing Year 9 and joined KHS, a company started by his father. By reason of his limited education, the plaintiff has correspondingly limited literacy and numeracy skills.[4] This was apparent during the course of his evidence and cross-examination. He has lived in Ararat for his entire life, is married and has three sons, two of whom are still at secondary school. He holds a demolition licence, vehicle testing licence, truck licence and a red card permitting construction site entry.[5]
[4]PCB 18
[5]Transcript (T) 43
6 At the time of the workplace injury he had been engaged in concreting and related work for approximately 36 years. He has limited computer and information technology skills.[6] Whilst I accept that at times during his cross-examination the plaintiff sought to minimise his daily activities and current capacity, a subject I will return to, in my opinion he was a generally truthful and honest witness who found the court process unfamiliar and demanding.
[6]PCB 18
7 The surgery performed on the plaintiff’s left ankle involved reduction and internal fixation with a fibula plate, diastasis screw and two medial malleolar screws.[7] Following the surgery and his discharge from hospital, the plaintiff was confined to bed for approximately eight weeks.[8] On 29 February 2014, further surgery was conducted to remove a displaced screw. The plaintiff was then referred to Mr Tony Crocker, a physiotherapist, for several months.[9] Whilst the plaintiff’s fracture healed in good position, he was left with chronic pain[10] requiring prescription medication, including Endone[11] and other codeine-based medications.[12]
[7]PCB 50
[8]T18; Defendant’s Court Book (DCB) 10
[9]T19
[10]PCB 45
[11]T21
[12]T21-22
8 In a medical report dated 25 August 2015, the plaintiff’s treating general practitioner, Dr Mark Deary, described his then condition in the following terms:
“… He no longer requires any specific treatment of his physical injury as the healing process has completed and there is no specific treatment that will help.
He requires occasional analgesia but is restricted in the amount he can do on his ankle due to residual pain.
Work Capacity.
He is unable to return to his pre-injury work on a full-time basis as a result of his physical injury.
He has problems getting moving in the morning but then his ankle settles and he is able to do about 4 hours in a day before it becomes painful and he needs to rest it.
He does have some days that are better than others, and the 4 hours is an average maximum.”[13]
[13]PCB 45-46
9 In an effort to address the ongoing pain experienced by the plaintiff an arthroscopy and removal of screws and plates were performed by Mr Russ on 21 June 2016.[14] The arthroscopy revealed:
“… extensive scar formation and anterior osteochondral damage. This was debrided with a shaver at the time and we expect Peter to have a better range of movement and less pain in his left ankle.”[15]
[14]PCB 41
[15]PCB 41
10 In a recent medical report dated 12 October 2018, the plaintiff’s treating general practitioner states:
“He has, however, been left with chronic pain in the ankle if he does too much on the ankle.”[16]
[16]PCB 47
11 And, further:
“He requires analgesia on an as-needs basis for the ankle pain.
He also requires shoes and shoe inserts in order to give his ankle the support it requires.
The arthritis is likely to worsen with time and there may come a time when he would then benefit from further surgery, probably in the form of a joint fusion.”[17]
[17]PCB 47
12 The evidence establishes that the plaintiff continues to suffer from pain in his left ankle and this has significantly impaired his quality of life. He no longer plays golf or lawn bowls.[18] His sleep is disturbed,[19] and his capacity to carry out domestic tasks has been reduced.[20]
[18]PCB 24
[19]T24
[20]T26
13 On 23 August 2018, the plaintiff was examined by Dr Robyn Horsley, an occupational physician, who concluded that the plaintiff’s functional tolerances were as follows:
“• A sitting tolerance of 1 to 2 hours;
• A driving tolerance in an automatic vehicle of 1 to 2 hours;
• A dynamic standing tolerance of up to an hour, provided he can take rest breaks;
• A static standing tolerance on a good day of 15 minutes;
• A walking tolerance of 15 minutes before he takes a rest break.”[21]
[21]PCB 76
14 Whilst Dr Deary stated that the plaintiff may benefit from ankle fusion surgery, it is accepted that such surgery would result in significant physical restrictions and it was not submitted on behalf of the defendant that the injury relied upon in support of the application has not stabilised. I am satisfied that the injury may properly be described as permanent.
15 Whilst it was not conceded by the defendant that the pain and suffering consequences of the plaintiff’s injury may fairly be described as being “more than significant or marked” and as being “at least very considerable”, it was not submitted that I could not arrive at that conclusion and the application proceeded on the basis that the question to be resolved concerns the plaintiff’s residual capacity for suitable employment.
16 It is the case for the plaintiff that he has no capacity for his pre-injury duties and, further, that he has no residual capacity for full-time suitable employment.
17 In Giankos v SPC Ardmona Operations Ltd,[22] the Court of Appeal stated that an applicant was required to prove, on the balance of probabilities, that no suitable employment was available to him in which he could earn 60 per cent or more of his pre-injury earnings. In the circumstances of that case, the Court of Appeal also concluded that the defendant bore an evidentiary onus to adduce evidence that there were other jobs in the area where the appellant resided, for which he was suited.
[22][2011] VSCA 121
18 At the time of his injury, the plaintiff’s duties as an operations manager involved “hands-on” physical work at construction sites where he would pour concrete from an agitator, as required, having driven the vehicle to the site and positioning it for a pour. This was the work he was performing when he was injured.[23] He would also lay steel mesh for concrete reinforcement and undertake form work and screening of concrete.[24] His duties also involved driving mobile plant and machinery, which required accessing that plant and operating heavy vehicle controls.[25] His standard working hours were 40 hours per week with an average of 6 hours per week in overtime,[26] although the evidence also discloses that the plaintiff worked considerably more hours than formally recorded.[27]
[23]PCB 19
[24]PCB 78
[25]PCB 78
[26]PCB 114
[27]PCB 18
19 I accept that only a relatively small proportion of the plaintiff’s pre-injury duties involved what may be described as administrative work. The defendant tendered an affidavit sworn by the plaintiff’s brother, Bruce Hamilton, in which the plaintiff’s usual duties were described as including:
“… supervisory duties, preparing tenders for work, conducting on·the job training, overseeing work conducted in the workshop, preparing paperwork including quotes, invoicing, drafting Job Safety Analysis' (JSA's) and Safe Work Method Statements (SWMS).”[28]
[28]DCB 62
20 However, as I have observed, the plaintiff has limited education and I accept that the formal administration of KHS is carried out by his brother, Bruce Hamilton, who is educated to a tertiary level, and other office staff.
21 Dr Deary describes the plaintiff’s current work capacity as:
“… He is unable to return to his pre-injury work on a full time basis as a result of his physical injury.
5. He is able to perform very little work whilst standing and is largely restricted to sedentary work, which he could perform with the appropriate training.”[29]
[29]PCB 47
22 On 19 January 2016, the plaintiff was examined by Professor Vernon Marshall, a professor emeritus of surgery, who then described his work capacity as:
“He has no capacity for return to pre-injury duties either on a full-time or part-time basis. He has continuing physical limitations and restrictions caused by his injuries, which would allow only light office work in the future if such was available.”[30]
[30]PCB 53
23 In a medical report dated 2 July 2018, Mr WHB Edwards, a foot and ankle surgeon, described the plaintiff’s work capacity, following an examination of him, as “suitable for sedentary work or at best semi-sedentary work”.[31]
[31]PCB 68
24 In her medical report dated 23 August 2018, Dr Horsley described the plaintiff’s current work capacity as follows:
“Mr Hamilton is permanently unfit to return to his previous role as a Concrete Pourer and Civil Construction Worker. I note that he is unable to balance on the 8mm rods, involved with metal square reinforcement. He would also have considerable difficulty climbing in and out of a truck on a regular basis. Mr Hamilton would also not cope with the physical component of shovelling and screening.
Unfortunately the relationship between Mr Hamilton and his two brothers has deteriorated. They are a major construction company within the Ararat community. He believes that in terms of other construction companies and other potential roles, he is now an ‘untouchable’.
Mr Hamilton's opportunities for re-deployment are very limited. I note that he has worked for the last 40 years as a Civil Construction Worker in a 'hands on' role.”[32]
[32]PCB 75
25 During the course of his cross-examination, the plaintiff was taken to CCTV footage of him at KHS on 12 February 2016 and 22 February 2016, and surveillance film taken on 22 September 2017 at Mitre 10 in Ararat and at his home. On 7 October 2017 he was filmed in the street in Ararat.[33] The film establishes that the plaintiff has retained a range of physical capacity including squatting and standing for an extended time. He also gave evidence, himself, that he carried out renovations at the family home.
[33]Exhibit B
26 As I have already observed, I accept that the plaintiff has, to a degree, sought to minimise his work and physical capacity, but the overwhelming preponderance of the medical evidence is that his work capacity is limited to part-time sedentary duties.
27 The defendant relied on an opinion of Dr David Ho in report dated 8 May 2015 that the plaintiff was then able to resume his normal duties and hours.[34] That opinion is over 3 years old and plainly outweighed by the medical evidence relied on by the plaintiff. There was no other relevant medical evidence relied on by the defendant.
[34]DCB 30
28 The evidence establishes that the plaintiff and his brothers, in particular, Bruce Hamilton, have fallen out and do not speak to one another. It would appear that this, in part, is a result of the plaintiff returning to work in 2014 to perform part-time administrative duties but being unable to return to his pre-injury duties, if only on a part-time basis. The evidence establishes that this caused the breakdown in his relationship with his brothers[35].
[35]PCB 28
29 It is not necessary for me to resolve whether an administrative or supervisory position is in fact available to the plaintiff at KHS as stated by Bruce Hamilton in his affidavit, as the medical evidence establishes that, at best, he is only capable of part-time work, and that capacity is described by Dr Horsley as follows:
“Mr Hamilton is currently off work. He is unable to return to his previous role. He worked with the family business for 40 years. There are considerable barriers to return to work. In theory, Mr Hamilton probably has physical capacity within the restrictions as outlined above, to work in the vicinity of 15 to 20 hours per week. However, when one considers him holistically, in an open and competitive marketplace in the Ararat environment, I believe that the reality is that he is likely to remain off work into the foreseeable future.”[36]
[36]PCB 76
30 Furthermore, there is no evidence before the Court of other suitable jobs that are available in the Ararat area which, if taken up by the plaintiff, would result in an income in excess of 60 per cent of his pre-injury earnings.
31 Accordingly, for the reasons set out above, it follows that the plaintiff is entitled to the order sought in the application, namely, leave to commence a proceeding claiming damages for both the pain and suffering consequences and the loss of earning capacity consequences of the injury relied upon by him in support of the application.
32 I will hear the parties as to the precise form of orders sought in the matter and also upon the issue of costs.
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