Harris v DJD Earthmoving Pty Ltd (No. 2)
[2017] VCC 901
•4 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05083
| BRIAN HARRIS | Plaintiff |
| v | |
| DJD EARTHMOVING PTY LTD | Defendant |
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 June 2017 | |
DATE OF JUDGMENT: | 4 July 2017 | |
CASE MAY BE CITED AS: | Harris v DJD Earthmoving Pty Ltd (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 901 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury –– injury to lower back – pecuniary loss – suitable employment
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC Mr S Jurica | Zaparas Lawyers |
| For the Defendant | Mr J McKenzie | Thomson Geer |
HER HONOUR:
Preliminary
1 Mr Harris is a 48-year-old man who injured his lower back in October 2012, whilst working as an earthmover for the defendant. Following a hearing in this court in February 2015, it was determined that, as a consequence of this employment, Mr Harris had suffered a permanent impairment to his spine, and that his pain and suffering consequences were at least very considerable. However, Mr Harris failed to satisfy the court that his loss of earning capacity consequences were serious.
2 Mr Harris appealed the decision to the Court of Appeal, who accepted that the reasons of the trial judge were inadequate. The case was remitted to this court for fresh consideration. In such circumstances, the only matter for me to determine is whether the accepted permanent impairment of the spine has resulted in Mr Harris suffering a loss of earning capacity which is productive of a financial loss of at least 40 per cent, both now and on a permanent basis.[1] If I am so satisfied, then Mr Harris will be entitled to claim pecuniary loss damages under the Accident Compensation Act 1985.
[1]s134AB(38)(e)(i) and (ii) Accident Compensation Act 1985
3 Mr Harris claims that his back pain is constant and that his restrictions render him unable to perform any paid employment. The defendant disputes that Mr Harris is unable to perform any paid employment, and contends that there are numerous jobs for which he is suitably capable. It submitted that, should he undertake such suitable employment, Mr Harris would not suffer the requisite pecuniary loss.
4 Only Mr Harris was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 For the reasons which follow, I am satisfied that Mr Harris has suffered, and will permanently suffer, a loss of earning capacity productive of a loss of at least 40 per cent, and that he should therefore be given leave to claim pecuniary loss damages.
Relevant background material
6 Mr Harris is a 48-year-old man, with a very low level of education, who has only ever done physical, manual work.
7 Mr Harris attended Swinburne Technical Community College until Year 8, at which time he left with only basic writing and numeracy skills. He described the school as one for children who were academically disadvantaged.
8 Mr Harris initially obtained employment as a storeman, before later working as a forklift driver, truck driver, and labourer. He then obtained full-time employment with the defendant as a machine operator. Mr Harris said that he spent about 60 per cent of his time driving excavators, bulldozers, dump trucks, and rollers, over uneven ground and that he spent the balance of his time performing labouring work on the ground. Mr Harris remained in such employment for seven years, until he injured his lower back on 29 October 2012.
9 Mr Harris said that he normally worked eight hours a day from Monday to Friday, with two hours overtime every day, together with six hours of overtime on a Saturday. In the last full financial year prior to suffering his lower back injury (the year ending 30 June 2012), Mr Harris earned $71,933 gross per annum.
10 Mr Harris said that he has used cannabis and amphetamines, at times, since he was a teenager. However, he said this drug use did not interfere with his work. Mr Harris said that he and his wife had tried IVF for a number of years, during which time he took no drugs at all. Mr Harris also said that the defendant undertook occasional drug tests of its employees, and that he never tested positive.
11 Mr Harris has not worked since 29 October 2012. Since that time he has obtained regular certificates of capacity from his general practitioner, Dr Peter Williams. His treatment has included two epidural injections; one performed by Dr Williams, the other by neurosurgeon, Mr Craig Timms.
12 Since suffering his lower back injury, Dr Williams has prescribed a range of medications to assist Mr Harris in his pain relief. He was previously prescribed OxyContin, Endone, Tramal, Valium, and Norgesic. At present, Dr Williams prescribes a 40 milligrams slow-release Targin patch, which Mr Harris applies weekly to assist him with his lower back pain. Mr Harris said that he continues to take four tablets of Valium per day. In addition, Dr Williams has also prescribed anti-depressant medication.
13 In late 2015, Mr Harris consulted pain management specialist, Dr Ali Kian Mehr. However, his treatment with Dr Mehr was interrupted when Mr Harris was incarcerated for one month in June 2016 and for a further three months from August to November 2016. Since his release from jail, Mr Harris has sought a further referral to Dr Mehr, but said that he is still waiting for WorkCover to approve such treatment.
14 Mr Harris admitted that he significantly increased his marijuana use after suffering his lower back injury, and that he now smokes a joint every day. He said that the marijuana helps him cope with his pain, as well as helping him to relax and to get some sleep. Mr Harris also increased his amphetamine use for a time, but said that he has not used such drugs for the last one to two years.
15 Mr Harris also said that he significantly increased his alcohol consumption, and that for a period of time he was drinking up to four cans per day, possibly more and he said “there wasn’t a set number.” However, Mr Harris said that he has now significantly reduced his drinking, such that he would not have consumed more than 24 cans of alcohol in the last year.
16 Mr Harris said that his lower back pain is constant, and that his pain and symptoms are now “roughly the same” as they were when he swore his previous affidavits in June 2014 and February 2015. He said that his sleeping has recently improved, and that whilst he still gets up with pain, such occasions are now less frequent. Mr Harris said he remains stiff and sore in the mornings, and that he has naps throughout the day. He said that his ability to sit and stand is limited to about 15 to 20 minutes, and that he needs to frequently change his posture, as he suffers increased pain when standing for prolonged periods.
17 Mr Harris said that he has not looked for any work, as he believes his ongoing lower back pain has rendered him incapable of performing any work, including any lighter jobs.
Mr Harris’ medical evidence as to his capacity for suitable employment
18 Dr Williams has provided Mr Harris with certificates of capacity since October 2012. His current certificate states that Mr Harris has no capacity for work.
19 In a report dated 15 March 2017, Dr Williams stated that in his opinion, Mr Harris was unfit to return to his pre-injury duties as a machine and plant operator. He was also of the opinion that Mr Harris’ basic education levels were such that he would be unsuited to new fields or occupations. He believed Mr Harris would be capable of using his knowledge to supervise and monitor work within industries of which he had previous experience.
20 The defendant sought to rely upon a report of Dr Williams dated 9 October 2014, in which he considered the jobs of dispatch officer, warehouse clerk, purchasing and supply clerk, and safety officer, to be suitable Mr Harris. In the same document, however, he stated that Mr Harris was unable to lift more than 3 kilograms and that he could not do any climbing, squatting or repetitive bending.
21 In his report dated 28 May 2013, Mr Timms stated that in his opinion, Mr Harris was incapacitated for heavy manual work.
22 Mr Harris’ solicitors arranged for Mr Harris to be examined by neurosurgeon, Professor Richard Bittar, in September 2013 and January 2015. In his first report dated 3 September 2013, Professor Bittar stated that:
“In my opinion, he is currently incapacitated both for his pre-injury duties, and for suitable duties. Taking into account his age, education, training, skills and work experience, as well as the nature and severity of his work-related lumbar spine condition, he is likely to remain totally incapacitated for employment into the foreseeable future.”
23 In his further report dated 12 January 2015, Professor Bittar noted that Mr Harris’ pain was exacerbated by sitting for more than 15 to 20 minutes, standing for more than 15 to 20 minutes, bending, twisting, forceful pushing or pulling, and lifting more than 5 kilograms. He reiterated earlier sentiments in relation to Mr Harris’ incapacity for pre-injury duties and for suitable employment, and considered such incapacity to be permanent.
24 Mr Harris’ solicitors also arranged for Mr Harris to be examined by neurosurgeon, Mr David Brownbill, on four occasions from December 2012 until March 2017. In each of his reports, Mr Brownbill stated that as a consequence of his lower back injury, Mr Harris was restricted in his ability to perform activities involving lifting, twisting, bending or prolonged standing or sitting. Mr Brownbill considered that Mr Harris was unlikely to return to his pre-injury duties and thought that, realistically, he did not have the fitness to engage in alternative employment in the foreseeable future.
25 Mr Harris’ solicitors also arranged for Mr Harris to be examined by occupational physician, Dr Joseph Slesenger, on two occasions in January 2014 and May 2017. In his first report dated 13 January 2014, Dr Slesenger recommended that Mr Harris be assessed by a pain specialist, as he was concerned with Mr Harris’ use of medication and other substances. At that time, Dr Slesenger considered Mr Harris’ prognosis to be guarded. From an employment perspective, he considered it unlikely that Mr Harris would be able to attain or retain employment without first significantly reducing his alcohol intake or use of prescribed medication.
26 In his second report dated 11 May 2017, Dr Slesenger noted that Mr Harris had consulted Dr Mehr for pain management advice, and that a recommendation had been made for him to change his medication, receive a ketamine infusion, and participate in a multidisciplinary pain management program. Dr Slesenger observed that Mr Harris had not received the injection nor participated in the pain management program, and considered it unlikely that either treatment would result in a significant alteration in his symptoms. In addition, he did not anticipate that such treatment would significantly alter Mr Harris’ capacity for work.
27 Dr Slesenger considered that Mr Harris should avoid the following:
· lifting over 5 kilograms
· repetitive bending or twisting
· exposure to whole-body vibration
· prolonged static postures.
28 In addition to these general work restrictions, Dr Slesenger considered it unlikely that Mr Harris would be able to return to work on a consistent and reliable basis, by virtue of the variability of his symptoms and his medical side effects.
Defendant’s medical evidence as to Mr Harris’ capacity for suitable employment
29 The defendant arranged for Mr Harris to be examined by musculoskeletal and pain management specialist, Dr Clive Kenna, on four occasions from March 2013 until May 2017. In his first report dated 13 March 2013, Dr Kenna was of the opinion that Mr Harris was unfit to work.
30 In both his second and third reports, Dr Kenna expressed the view that Mr Harris was fit for modified or alternative duties.
31 In his final report dated 10 May 2017, Dr Kenna considered Mr Harris’ long-term prognosis to be poor, in view of his vocational level and lack of mobility. He was of the opinion that Mr Harris remained permanently unfit for his pre-injury duties, and thought that he may, at best, be suited to performing light duties on a part-time basis.
32 In addition, Dr Kenna stated that any suitable employment would need to include restrictions; no lifting more than 5 kilograms, no bending, pushing or pulling repetitively. Further, he noted that walking and sitting would need to be limited to a period of about 20 minutes.
33 The defendant also arranged for Mr Harris to be examined by orthopaedic surgeon, Mr Ronald Haig, on three occasions from December 2014 until May 2017. On each occasion, Mr Haig considered Mr Harris to be unfit to return to his pre-injury duties, but thought that he had the capacity to perform alternative light duties. In his most recent report dated 22 May 2017, Mr Haig expressed a belief that Mr Harris may be addicted to his medications, and thought that it may be his choice to do virtually nothing throughout the day.
Mr Harris’ claim for loss of earning capacity
34 To succeed in his application, Mr Harris bears the onus of satisfying me that as at the date of hearing, that as a consequence of his lower back injury, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Mr Harris is capable of earning, whether in suitable employment or not.
35 In undertaking this task, I must compare what Mr Harris is currently earning, or capable of earning in suitable employment, with his pre‑injury earning capacity. To determine his pre‑injury earning capacity, I must decide which of the following scenarios most fairly reflects his earning capacity, had he not suffered the injuries:
(a)the gross income Mr Harris earned (or was capable of earning) from personal exertion in the three years before the injury;
(b)the gross income Mr Harris would have earned (or would have been capable of earning) from personal exertion in the three years after the injury, if the injury had not occurred.[2]
[2]s134AB(38)(f) Accident Compensation Act 1985
36 Mr Harris earned $60,258 in the year in which he was injured. Mr Mighell referred me to comparative employees who earned greater sums in the three years following. However, as I ultimately conclude that Mr Harris is permanently incapacitated for suitable employment, it is not necessary for me to determine which scenario most fairly reflects his without injury earning capacity. On any scenario, I am satisfied that Mr Harris meets the test.
What is Mr Harris capable of earning in suitable employment?
37 In assessing Mr Harris’ claim for loss of earning capacity, I am obliged to do so realistically, by reference to his physical limitations and by reference to what might or might not amount to “suitable employment” in the foreseeable future.[3] This is a test of physical capacity, not employability, and it involves a consideration of what Mr Harris might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after undertaking vocational education.[4]
[3]Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188 at [48]
[4]Ibid at [49]
38 I am satisfied that Mr Harris’ lower back pain is constant, and that it fluctuates in severity. I accept that Mr Harris suffers increased pain after sitting and standing for more than 20 minutes and that he finds it difficult to walk for more than 10 minutes.
39 I am satisfied that Mr Harris’ back pain, and the associated restrictions, are such that it would be very difficult for him to obtain and hold down regular employment. I also consider his pain levels and his need to sit and stand at regular intervals, would make it difficult for him to be a reliable employee.
Suitable employment options proposed by the defendant
40 In a report prepared by Healthe Work, dated 6 June 2017, the following jobs were listed as suitable employment options for Mr Harris:
(i)Product assembler
41 Healthe Work noted that this role did not require a minimum education level, and described the physical demands as “light to medium”.
42 In Appendix 1 to the Healthe Work report, “light” work was defined as exerting up to 9 kilograms of force occasionally, and/or 4.5 kilograms of force frequently, and/or exerting a negligible amount of force constantly. Further, “medium” work was defined as exerting 9 to 23 kilograms of force occasionally, or exerting 4.5 to 11.5 kilograms of force frequently, or exerting greater than negligible to 4.5 kilograms of force constantly to move objects.
43 Dr Slesenger did not consider this role to constitute suitable employment for Mr Harris, on the basis that he would not be able to sit or stand for prolonged periods.
44 Dr Kenna considered this role to constitute suitable employment for Mr Harris provided that he could sit and stand as required and that the job was self-paced. He was of the opinion that Mr Harris could perform this role on a part-time basis.
45 Mr Haig considered this role to constitute suitable employment for Mr Harris, and was of the opinion he could perform such work on a full-time basis.
46 In considering the evidence and the medical opinions in their totality, I do not consider the job of product assembler to constitute suitable employment for Mr Harris. I am satisfied that a lifting limit of 5 kilograms, as recommended by Dr Slesenger, Dr Kenna and Dr Williams (noting that Dr Williams previously recommended a 3 kilograms limit) to be appropriate in the circumstances. I note that light packing work involves light to medium work demands, and that Mr Harris might be expected to exert a force of up to 9 to 20 kilograms on an occasional basis or 4.5 kilograms to 11.5 kilograms on a frequent basis. I consider such weight to be inconsistent with his lower back injury, and do not therefore consider this role to constitute suitable employment for Mr Harris.
47 In reaching this conclusion, I have also had regard to the opinions of Professor Bittar and Mr Brownbill, that Mr Harris is unsuited to alternative employment.
48 I have significant reservations as to the opinion of Mr Haig. I consider him to be overly optimistic in his assessment of Mr Harris and his capacity to perform such a role, and I note that he expressed no opinion as to what might constitute a safe lifting limit for Mr Harris. In such circumstances, I gain little assistance from his reports.
(ii)Light packer
49 Healthe Work noted that this role did not require a minimum education level, and described the physical demands as medium work.
50 In considering the suitability of this role, Dr Slesenger, Dr Kenna and Mr Haig all expressed the same opinion as they did for that of the role of product assembler. That is, Dr Slesenger did not consider it to constitute suitable employment, Dr Kenna considered it to constitute suitable employment on a part-time basis, and Mr Haig considered it to constitute suitable employment on a full-time basis.
51 For the reasons previously detailed, I do not consider the role of light packer to constitute suitable employment for Mr Harris. I note that light packing work involves medium work demands, which I consider to be inconsistent with Mr Harris’ lower back injury.
(iii)Despatch officer
52 Healthe Work noted that this role requires qualification to Year 10, and describes the physical demands as medium to heavy work, including intermittent computer work.
53 In Appendix 1 to the Healthe Work report, “heavy” work was defined as exerting 23 to 45 kilograms of force occasionally, or 11.5 to 23 kilograms of force frequently, or exerting greater than 4.5 to 9 kilograms of force constantly
54 Dr Slesenger did not consider this role to constitute suitable employment for Mr Harris. He did not consider Mr Harris to possess the requisite computer skills, and was of the opinion the postural requirements, together with the need to inspect incoming and outgoing deliveries to be possibly outside Mr Harris’ capacity.
55 Dr Williams considered this role to constitute a possible option for Mr Harris, provided it did not involve lifting more than 3 kilograms and did not require any repetitive bending, climbing or squatting.
56 Dr Kenna considered this role to be potentially within the capacity of Mr Harris, and Mr Haig considered that Mr Harris had the capacity to perform the role on a full-time basis.
57 I do not consider this role to constitute suitable employment for Mr Harris. I note that he does not have the necessary qualification level and further, that the demands of this role are described as medium to heavy work, which I consider to be well beyond his lifting capacity.
58 In circumstances in which Dr Williams, Dr Kenna and Mr Haig all consider this role to constitute suitable employment for Mr Harris, I am of the opinion that each of the doctors was either unaware, or simply did not pay close attention to the requisite qualification level for this job or the physical demands.
(iv)Warehouse clerk
59 Healthe Work noted that this role required qualification to Year 10 and described the physical demands as medium to heavy work, specifically involving the handling of stock of varying weights up to 20 kilograms.
60 Dr Slesenger expressed the same reservations as to the suitability of this role as he did for that of the role of despatch officer.
61 Dr Kenna, Mr Haig and Dr Williams each expressed the same support for the suitability of this role as they did for that of the role of despatch officer.
62 For the reasons previously detailed above, I do not consider this role to constitute suitable employment for Mr Harris.
(v)Purchasing and supply logistics clerk
63 Healthe Work noted that this role requires a qualification to Year 10, and described the physical demands as sedentary. However, the role required good communication skills, an aptitude for working with computer systems, good planning and numeracy skills and an enjoyment of clerical and administrative activities.
64 Dr Slesenger did not express an opinion as to the suitability of this role. Dr Kenna, Mr Haig and Dr Williams each expressed the same support for the suitability of this role as they did for that of the role of despatch officer.
65 I do not consider this role to constitute suitable employment for Mr Harris. I accept that it is beyond his qualification level and well beyond his basic literacy and numeracy levels.
(vi)Quality controller
66 Healthe Work noted that this role did not require a minimum qualification level, and described the physical demands as light. It was also said to involve approving and confirming specifications and measurements, sending products back for improvement, documenting inspection results and inputting information, as well as possibly conducting training sessions.
67 Dr Slesenger did not express an opinion as to the suitability of this role.
68 Mr Haig considered this role to constitute suitable employment.
69 Dr Kenna considered that Mr Harris had the potential to work as a quality controller, provided he could sit and stand as required and that the job was self-paced.
70 I do not consider this role to constitute suitable employment for Mr Harris. Whilst the physical demands of this role may be consistent with a lifting limit of 5 kilograms, I am not satisfied that they are consistent with Mr Harris’ sitting and standing tolerances. Further, I note that this role involves a requirement to document inspection results and input information, as well as to conduct training sessions with staff. I am satisfied that Mr Harris’ very low level of reading, writing and numeracy, is such that this would not be possible.
71 In a report prepared by Nabenet, dated 16 August 2014, the following jobs were listed as suitable employment options for Mr Harris:
(i)Machine operator
72 Nabenet noted that this role involves a range of duties including fitting and removing attachments, raising, lowering and manipulating attachments using manual and hydraulic controls, as well as servicing, lubricating, cleaning and refuelling plant and performing minor adjustments and repairs. I note that this is the job Mr Harris had when he was injured.
73 I note that Dr Slesenger advised Mr Harris against returning to work in this role, and that Dr Kenna was also of the opinion that Mr Harris was permanently unfit to return to work as a machine operator. In his report, I note that Mr Haig was of the opinion that Mr Harris should not return to his pre-injury duties, whilst also noting, in response to this job proposal, that he had the capacity to perform the duties of a machine operator.
74 I do not consider this role to constitute suitable employment for Mr Harris. I accept that it would essentially require him to return to his pre-injury duties, and that he has been advised by all his doctors not to do so.
(ii)Forklift driver
75 Nabenet noted that the duties for this role include transporting goods on a forklift, together with servicing and performing minor repairs and adjustments to the forklift.
76 Dr Slesenger and Dr Kenna did not consider this role to constitute suitable employment, whereas Mr Haig did consider Mr Harris to be capable of performing such work.
77 I do not consider this role to constitute suitable employment for Mr Harris. I consider his limited sitting and standing tolerances would not be accommodated in this role.
78 In a further report prepared by Nabenet, dated 13 October 2014, the following jobs were listed as suitable employment options for Mr Harris:
(i) Dog trainer/animal attendant
79 Nabenet noted that the duties for this role involved teaching animals, as well as bathing, cutting and combing animals.
80 This job was considered to be unsuitable by Dr Slesenger, by virtue of the manual handling requirements, as well as by Dr Kenna and Dr Williams, but was considered to constitute suitable employment by Mr Haig.
81 I do not consider this role to constitute suitable employment for Mr Harris. Whilst he enjoyed training his own dog, I consider this role would involve the manual handling of animals beyond his safe lifting capacity.
(ii)Safety officer
82 Nabenet noted the duties of this job involved examining equipment specifications, inspecting and testing machines and assisting in conducting safety meetings and campaigns and organising training in general safety principles.
83 Dr Slesenger did not consider this role to constitute suitable employment on the basis Mr Harris does not have the requisite computer skills nor the relevant qualifications.
84 Dr Kenna considered that Mr Harris would be ill-suited to work as a safety officer.
85 Dr Williams considered the role would constitute a good option, provided the restrictions he stated on 9 October 2014 were complied with.
86 Mr Haig considered the role to constitute suitable employment.
87 I do not consider this role to constitute suitable employment for Mr Harris. I consider his very low level of education would effectively render this employment impossible for Mr Harris to undertake.
Conclusion as to Mr Harris’ capacity for suitable employment
88 For the reasons detailed above, I am not satisfied that any of the jobs identified by the defendant would constitute suitable employment for Mr Harris.
89 In reaching that conclusion, I have considered the opinion of Mr Haig in relation to each role, but given little weight to it. Besides stating that Mr Harris should avoid his pre-injury duties and should not undertake “work of an essentially physical nature”, Mr Haig did not express any restrictions in relation to Mr Harris’ standing or sitting tolerances, or his lifting capacity. His opinion is in contrast to that of all the other doctors, including Dr Kenna, who accepted that there should be reasonable restrictions imposed on Mr Harris, as a consequence of his lower back injury.
90 Having therefore concluded that none of the proposed jobs constitute suitable employment for Mr Harris, I accept that there is no employment which is suitable for Mr Harris, given his lower back injury and the restrictions it places upon him. I am satisfied that he is totally incapacitated for all suitable employment and that, in such circumstances, he currently suffers a total loss of earning capacity.
91 As stated above, I accept that this constitutes a permanent loss of earning capacity. I accept Dr Slesenger’s opinion that any improvements Mr Harris may obtain from undergoing a pain management course, would likely be minimal. Further, I consider any such improvements would likely relate to Mr Harris’ capacity to cope with pain and would not likely lead to a functional improvement. I therefore accept that his work restrictions will be permanent. In such circumstances, the abovementioned jobs would all remain unsuitable for Mr Harris on a permanent basis.
92 The defendant suggested that Mr Harris had been uncooperative in undergoing further study, as recommended by Nabenet, and referred me to approval given in December 2014 for Mr Harris to undertake a Certificate in General Education for Adults, to improve his reading and writing capacity. I accept that Mr Harris would have difficulties with prolonged sitting in undertaking such a course. Further, even if Mr Harris had undergone this Certificate, I accept the difficulties he experienced at school in Year 8 are such that he would be unlikely to gain very much from any such course. I have also considered this limitation in determining that Mr Harris’ loss of earning capacity is permanent.
93 I am satisfied that Mr Harris’ incapacity will remain for the future and be permanent. As the loss is total, Mr Harris has suffered the requisite loss of 40 per cent.
94 Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[5] Given my acceptance that the plaintiff’s injury prevents him from returning to any form of suitable employment, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
[5]s134AB(38)(c)
95 I will now make consequent orders.
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