Hayes v Victorian WorkCover Authority
[2017] VCC 867
•30 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02406
| NEIL ROBERT HAYES | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 May 2017 | |
DATE OF JUDGMENT: | 30 June 2017 | |
CASE MAY BE CITED AS: | Hayes v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 867 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left foot – economic loss damages – pain and suffering damages conceded – capacity for employment
Legislation Cited: Accident Compensation Act 1985, s134AB; Workplace Injury Rehabilitation and Compensation Act 2013, s3
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Richter v Driscoll [2016] VSCA 142; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Public Transport Corporation v Pitts [2007] VSC 356; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
Judgment: The plaintiff is granted leave to bring common law proceedings for both pain and suffering damages and pecuniary loss damages in respect of an injury to the left foot suffered during the course of his employment on 10 July 2006.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Morrow | Slater & Gordon Ltd |
| For the Defendant | Mr D Myers | IDP Lawyers Pty Ltd |
HER HONOUR:
1 This an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him in the course of his employment with Futuris Automotive Interiors (Australia) Pty Ltd (“the employer”), on 10 July 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 clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of body function.”
5 The body function relied upon in this application is injury to the left foot.
6 The plaintiff relied upon three affidavits: two sworn by the plaintiff on 1 February 2016 and 11 May 2017, and an affidavit sworn by his wife, Susan Burton, on 16 May 2017. I have not summarised the plaintiff’s or his wife’s affidavits or evidence; however, I will refer to their relevant evidence in my reasoning.
7 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
8 I was informed that the defendant conceded that the plaintiff has suffered a permanent serious impairment or loss of body function for the purposes of a certificate for pain and suffering damages.
9 The only issue was whether the plaintiff satisfied the criteria for economic loss.
The issues
10 Counsel for the defendant submitted:
(a)The plaintiff has a retained capacity for work and relied upon the jobs identified in the Nabenet report dated 27 November 2014. The defendant’s medical evidence is that the jobs are appropriate;
(b)The plaintiff has not discharged the onus under s134AB(38)(g) of the Act; that is, even with rehabilitation and retraining, he will still sustain a loss of earning capacity of 40 per cent or more.
The Plaintiff’s evidence
11 The plaintiff is fifty-five years of age. He is married with three children. He completed Year 11 at Templestowe Technical School. He commenced Year 12 at Swinburne but left before completing the year. He commenced an apprenticeship in landscape gardening and qualified as a landscape gardener in 1983. He also obtained a Certificate of Landscape Technology by studying at night school at the Victorian College of Agriculture & Horticulture at Burnley. He ran his own landscape gardening business. He used the following equipment: a bobcat, backhoe ditch witch, excavator and truck. Most of his contracts were from builders in the Hawthorn and Camberwell areas. His work included excavation, as well as very physical landscaping and earthmoving.
12 In December 2000, the plaintiff commenced work with the employer. He was based in Port Melbourne and his job was to build prototype parts for the interiors of future cars and, in particular, for seats. He was a stock controller and managed ingoing and outgoing stock and warehouse inventory. He was injured in July 2006 and continued performing his normal duties until November 2008, when he was made redundant.
13 The plaintiff was off work for a period of time until he obtained a short-term position with Workforce Extensions, a labour-hire company, who placed him with Pro-Pin Underpinning, operating a mini excavator, digging access shafts at a heritage listed primary school in Williamstown.
14 The plaintiff then obtained a casual position with Enviropacific Services Pty Ltd, where he was employed as a plant operator and labourer as part of a team treating and rehabilitating contaminated sites. He remained in that job between June 2009 and May 2012.
15 From June 2010 to 15 September 2010, the plaintiff worked at an RMIT job site through MC Labour.
16 In about September 2012, the plaintiff commenced work with Earthtrak at a tip at Ballan Road. He was employed casually. He performed tasks such as walking on uneven ground or climbing onto trucks to check loads. The pain on the top of his left foot worsened. He left that employment after four months due to ongoing pain in his left foot.
17 The plaintiff obtained a job at Craigieburn Central, working on rollers and compactors in road construction. He had trouble getting up into the machines or doing manual labouring tasks.
18 Over the period, since July 2006, the pain in his left foot worsened.
19 The plaintiff ceased paid work in May 2013 because of the pain.
The credit of the Plaintiff
20 The plaintiff’s credit was not in issue between the parties. The plaintiff answered questions directly, made concessions, gave his evidence without embellishment and was straightforward in his presentation. There was no suggestion by counsel for the defendant or in the medical evidence that the plaintiff’s credibility was in issue. Overall, the plaintiff impressed me as a believable witness. He was highly motivated to seek employment, but could no longer perform the physical work he had always performed.
Legislative framework
21 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 employer;
(b)the injury, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[1]
(c)the consequences to the plaintiff of his impairments to the left foot in relation to loss of earning capacity consequences must be “serious”, that is, “when judged by comparison with other cases in the range of possible impairments … be, fairly described as being more than significant or marked, and as being at least very considerable”.[2]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [33]
[2]Section 134AB(38)(b) and (c) of the Act
22 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[3]
(a)that at the date of hearing, he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[4]
(b)that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[5]
(c)that the conditions set down in s134AB(38)(e)(i) and (ii) are cumulative; and
(d)that even with rehabilitation and retraining, he will sustain a loss of 40 per cent or more.[6]
[3]Section 134AB(19)(b) and (38)(e) of the Act
[4]Section 134AB(38)(e)(i) of the Act
[5]Section 134AB(38)(e)(ii) of the Act
[6]Section134AB(38)(g) of the Act
23 The expression “suitable employment” which appears in s134AB(38)(f) and in s134AB(38)(g) of the Act is defined in s3 of the Workplace Injury Rehabilitation and Compensation Act 2013 in the following terms:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker’s pre-injury employment; and
(iii) the worker’s age, education, skills and work experience; and
(iv) the worker’s place of residence; and
(v) any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i) the work or the employment is available; and
(ii) the work or the employment is of a type or nature that is generally available in the employment market.”
24 If the plaintiff satisfies the tests laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[7]
[7]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraph [63]
Loss of earning capacity – the narrative test
25 It was not in issue between the parties that the plaintiff suffered a work-related injury to his left foot.
26 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time.
27 The up-to-date medical evidence of the plaintiff’s capacity for employment was expressed by Dr Sara Smeeton and Dr Desmond Wong, general practitioners, Dr Clayton Thomas, consultant in rehabilitation and pain medicine, Mr Andrei Cornoiu, orthopaedic surgeon, and Mr Peter Lugg, orthopaedic surgeon.
28 In 2016, Dr Alex Stockman, rheumatologist, examined the plaintiff but did not express a view as to employment.
29 In 2015, Dr Tony Kostos, rheumatologist, Dr Joseph Slesenger, specialist occupational physician, and Mr William Edwards, foot and ankle surgeon - orthopaedic, examined the plaintiff and provided reports. Dr David Elder, occupational medicine consultant, provided an impairment assessment. He did not address work capacity; accordingly, his report is of no assistance. As I am required to make the assessment at the time of hearing the application, I took the view that the abovementioned reports were not current, and of little assistance. Accordingly, I am less influenced by the reports of Dr Kostos, Dr Slesenger and Mr Edwards.
30 I place greater weight on the more up-to-date evidence of Dr Smeeton, Dr Wong, Dr Clayton Thomas, Mr Cornoiu and Mr Lugg.
31 Dr Smeeton said the plaintiff suffers osteoarthritis of the left foot. He has ongoing pain in his left foot and, over time, this has made manual work more difficult. He has difficulty standing and walking for long periods. He experiences foot cramp. His experience in the workforce is manual labour. It was her view he is currently unable to work. She said he had basic computer training but his skills are not at a level that would enable him to be able to work in an IT or office job.
32 Dr Wong said the plaintiff had no capacity for employment.
33 Dr Clayton Thomas examined the plaintiff in April and December 2015 and March and April 2017. He diagnosed osteoarthritic mid-foot on the left with some signs of central sensitisation. He said the plaintiff’s prognosis was poor, with ongoing pain and associated mobility problems. He said the future treatment is ongoing pain management. He referred the plaintiff to Dorset Rehabilitation Centre for a pain management program. Surgery could be performed but it is not straightforward and he may end up worse than his current position.
34 Initially, Dr Thomas said the plaintiff had a work capacity. The issue is primarily the type of work that he could do, bearing in mind the ongoing chronic foot pain married with the background skill set and emotional problems that he has. He said future work capacity would be limited to work that does not involve being non-weight-bearing. He cannot climb ladders. He cannot work with machinery due to his medications. He imposed work restrictions of sedentary work, part time, self-paced, a maximum of 16 hours per week. He said the reality was that the plaintiff was not employable due to the severity of the restrictions.
35 In October and December 2016, Mr Andrei Cornoiu, orthopaedic surgeon, examined the plaintiff on referral from his general practitioner. In May 2017, Mr Cornoiu reported that the plaintiff had suffered a crushing injury to the left foot at work. Due to the nature of the injury, he would be significantly at increased risk of post-traumatic degenerative changes in the left foot, regardless of other factors. He said the plaintiff’s condition is progressive, which has two specific repercussions. First, a progressive flat foot deformity due to the collapse of mid-foot joints, which causes pain due to the pressure on the plantar aspect of the foot. Second, the patient can experience variable levels of pain due to the left foot degenerative changes. He said the foot is not likely to recover to a normal, completely asymptomatic, foot. The prognosis left untreated is generally very poor. He said the plaintiff’s condition can be managed non-operatively but it is very likely that he will require an extensive mid-foot arthrodesis in the future.
36 Mr Cornoiu said the plaintiff’s work history has involved standing and manual-type labour. He imposed restriction of not being suitable to engage in any manual labour, standing for long periods of time, prolonged walking or lifting/carrying/pushing. The plaintiff could perform suitable sedentary, sitting, office-type of work, as long as the site of employment is easily accessible, does not involve repeated climbing of stairs and has onsite parking. He concluded that the plaintiff could only perform suitable sedentary, sitting-type work with limitations on periods of standing/walking. Regardless of treatment, he is not suitable for labouring-type work in the future.
37 In April 2017, Mr Peter Lugg, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitor. He diagnosed osteoarthritis of the left foot. He said the plaintiff had post-traumatic degenerative changes in the left mid-foot and that he will continue to suffer pain. If the plaintiff is unable to control the pain by non-surgical management, effusion may be required. He accepted the injury has affected the plaintiff’s capacity to work. He said the pain in his mid-foot restricts his ability to stand and walk for prolonged periods of more than one hour. He said pre‑injury employment would be only possible if he were able to sit for rest breaks or for some other work activity so that he is restricted to less than one hour standing and/or walking. If this cannot be achieved, he would need to find employment which permits his restrictions.
38 Mr Lugg said the plaintiff could perform any of the jobs listed in the vocational assessments as the jobs are sedentary, assuming such jobs are available. It was unclear the date of the vocational assessment Mr Lugg considered.
39 In May 2015, Dr Tony Kostos, rheumatologist, examined the plaintiff at the request of the employer. He said the plaintiff had suffered a significant injury to his left foot. He could not return to pre‑injury duties and hours, if his work involved being on his feet all day. He said the plaintiff needed to work in a position where he had the opportunity to sit down as required. He did not believe he was totally incapacitated. He was provided with a report prepared by Nabenet dated 27 November 2014 which identified the following positions:
·Gatehouse/car park attendant
·Rental officer/hire control
·Spare parts interpreter
·Custom service representative; and
·Transport/despatch clerk.
40 Dr Kostos said the plaintiff could do the abovementioned positions provided he could sit and stand as required.
41 In August 2015, Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff at the request of the defendant. He said the plaintiff had suffered an aggravation of pre-existing degenerative disease of the left foot, with evidence of a Chronic Pain Disorder. He also presented with a psychological impairment, though this was outside his area of expertise.
42 Dr Slesenger said the plaintiff could not return to his previous form of employment. He said the plaintiff could return to work with the following restrictions:
·No push/pull/carry/lift over 5 kilograms
·No repetitive bending or squatting
·Sit and stand as required
·Full hours.
43 Dr Slesenger was provided with employment options listed in an occupation rehabilitation report of Nabenet dated 22 July 2014. It was his view that the plaintiff was suitable for the following:
·Transport despatch clerk
·Customer service representative
·Spare parts interpreter
·Hire controller.
44 Dr Slesenger said he had reservations as to the plaintiff’s capacity to work as a rental officer as the position may require heavy manual labour and tasks that are outside his capacity. Otherwise he could perform the duties within the occupational rehabilitation report. He also thought he had the capacity to work as a call centre operator.
45 In November 2015, Mr Edwards, foot and ankle surgeon - orthopaedic, examined the plaintiff at the request of the plaintiff’s solicitors. He diagnosed mid-foot arthritis, which is likely to stay as it is, or get worse. He said the plaintiff was limited to sedentary or semi-sedentary duties. There are aspects of his personality that very much limit this form of work.
46 Based on the up-to-date medical evidence, I accept that all medical witnesses express the view that the plaintiff could not return to pre-injury employment. Dr Smeeton, Dr Wong and Dr Thomas accepted the plaintiff had no capacity for work. Dr Thomas imposed restrictions of sedentary, part-time, self-paced work, a maximum of sixteen hours per week but said, in reality, he was not employable due to the severity of the restrictions.
47 Mr Cornoiu said the plaintiff could perform suitable sedentary, sitting office-type work with limitations on periods of standing/walking.
48 Mr Lugg said he could perform any of the jobs listed in the vocational assessments that were forwarded to him as the jobs are sedentary. He assumed such jobs were available.
49 The defendant relied upon the jobs identified in the vocational assessment of Nabenet dated 27 November 2014.
50 In a joint return to work/job-seeking plan of March 2016 of Mr Steven Christie, employment placement consultant with Recovre, he said the suitable job options identified by Nabenet were car park attendant, hire controller/retail officer, spare parts interpreter, customer service representative, clerk/despatch clerk, call centre operator. In addition, Recovre suggested work as a gatekeeper, caretaker, mechanics assistant, equipment hire manager, a car parts assembler, chauffeur and delivery driver.
51 The plaintiff relied upon a report from Mr Paul Hartley, senior rehabilitation consultant and vocational assessor of Vocational Directions, dated 27 July 2017. Counsel for the defendant objected to the report on the basis that Mr Hartley’s formal training was as a social worker based on Mr Hartley’s professional profile.[8] He is an occupational rehabilitation consultant with eighteen years’ experience working in the occupational rehabilitation industry, primarily in worker’s compensation and Transport Accident Commission, as an approved provider of return-to-work programs, engaged in vocational assessments, labour market analysis, and re-education and placement services. He has conducted vocational assessments and labour market analysis within the worker’s compensation area. I accept that he has the relevant experience to express an expert opinion contained in his report.
[8]PCB 93
52 The second objection was that he was asked to direct his mind to the wrong questions.
53 Counsel for the plaintiff referred me to the recent Court of Appeal decisions of Richter v Driscoll[9] and Harris v DJD Earthmoving Pty Ltd.[10] These authorities discussed the matters to take into account in respect to no current work capacity and suitable employment. In the case of Richter, the Court of Appeal said:
“One is to say that whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances — these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.”[11]
[9][2016] VSCA 142
[10][2016] VSCA 188
[11]See Richter v Driscoll (supra) at paragraph [95]
54 And in paragraph [97], the Court of Appeal said:
“Employment’ is a relationship in which a prospective employee must have something — a capacity to work in employment — to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker, as outlined in these reasons, lead the employer to conclude that the worker has nothing to sell.”
55 In Harris, the Court of Appeal said, of the judge:
“He was obliged to do so realistically, by reference to Mr Harris’ physical and mental limitations and by reference to what might or might not amount to ‘suitable employment’ for Mr Harris in the foreseeable future. … .”[12]
[12]Harris v DJD Earth Moving Pty Ltd (supra) at paragraph [48]
56 And at paragraph [49]:
“Given the evidence, the arguments (on both sides) and the findings in this case, we consider that his Honour needed to identify at least one particular full time job which could be regarded as ‘suitable employment’ for Mr Harris and which Mr Harris had failed to show would be beyond him for the foreseeable future. The reasons that the judge gave do not identify any such job.” (Footnotes removed)
57 I accept that based on the above decisions of the Court of Appeal, Mr Hartley was asked, and commented on, the correct questions.
58 Mr Hartley undertook a skills audit of the plaintiff. He noted that he had difficulties with spelling. In respect to numeracy skills, he said the plaintiff could only use the basic functions on a calculator. He could manage simple mental arithmetic tasks and manage his own budget. He had very basic computer/digital skills, which he described as rudimentary at best, if seeking office or sales-based work.
59 Mr Hartley said the plaintiff demonstrated a range of soft transferable skills such as organisation, communication, interpersonal skills, adaptability, customer service skills, ability to work in a team, punctuality and ability to work in a self-directed manner. He was aware that the plaintiff now suffers argumentativeness, irritability and aggression. Mr Hartley said that these symptoms would significantly diminish the plaintiff’s soft transferable skills base.
60 Mr Hartley noted that the plaintiff had participated in two episodes of NES assistance by Nabenet over 2014, but was not provided with any form of retraining, even though it was recommended that he undertake a range of employment options for which he did not have the requisite skills, education or experience.
61 Mr Hartley considered the physical demands of each employment option identified by Nabenet. He concluded that from a physical perspective only, and not factoring in the plaintiff’s pain and other barriers he faces, the only job for which the plaintiff is suited based on his reported capacity and based on the medical opinions, is that of customer service representative, which is a job designation which is actually titled enquiry clerk/information officer.
62 Mr Hartley said the plaintiff has a paucity of transferable skills to bring to suitable employment. He needs retraining, such as computer training up to an intermediate level, and keyboard/data entry competency at a level approximating an industry standard. He would require an advanced vocational certificate, most likely up to Certificate IV level, in order to gain the competencies and marketable skills required to access a form of sedentary employment for which he may have an aptitude and ability. He said, in the absence of the successful completion of appropriate retraining, he will not have a suite of skills and experience that will allow him to fulfil the inherent vocational requirements of physically suitable employment. He concluded that at this time, he was unable to suggest any casual part-time or full-time options for which the plaintiff may be able to fulfil the inherent requirements at some time in the future. Given his age of fifty-five years, he said the plaintiff will remain substantially disenfranchised from the workforce.
63 The plaintiff’s evidence was that he wanted to return to work. This is what he told doctors, Nabenet, and the Court.
64 The plaintiff’s evidence was he has always worked outside. He said: “I’ve worked in the dirt”. “… ever since I was a kid I’ve worked in the dirt … I’m an outside person.” “… my old jobs have been outside, either landscaping, driving machinery … .” He said: “It’s hard to take, I’ve worked outside all my life.” In clarification, he said: “I’m just used to being outside, and I don’t [like] being - like enclosed inside … ..”[13]
[13]T63-64
65 The plaintiff’s evidence was that he was a competent operator of outdoor machinery. He now cannot load machinery onto a truck and cannot climb onto the machinery nor operate the pedals because of the increased pain in his left foot. He said most machinery is American designed and requires entry on the left side. The type of work he performed required him to walk on uneven ground, and that aggravated the pain. He said, over the last few years, his foot has “got much worse”. He is “on much more medication”.[14]
[14]T64
66 The plaintiff said he was not capable of computer work in a business office setting, as his grammar and typing are no good. He is a one-finger typist. He said he could cut and paste but his children and wife will “tune it up for me”.[15]
[15]T45
67 The plaintiff’s evidence is that he is on so much medication that he falls asleep, and made comments such as “I’m not made for computers and even though they make them easier, I’m still no good for them”.[16]
[16]T65-66
68 The plaintiff agreed he could fiddle with his car part of the time but he cannot do it day in day out, forty hours a week. He said he can only last about an hour before he needs to stop and rest. He often has a bad night’s sleep because his foot is aching. He falls asleep, and he is not a reliable employee. He is just grumpy. This was supported by his wife, Susan Burton. She said that since the plaintiff stopped work, he has become increasingly frustrated and angry. He is prone to mood swings and is often grumpy. The children have moved out of the house, in part or totally, because of his mood swings, although one has come back temporarily.
69 Ms Burton’s evidence was that the plaintiff’s mood makes him difficult to live with. His grumpiness means he does not get on with people very well anymore. From her observation, he would not be suited to working in any people-orientated work such as customer relations or sales. She said, knowing him as well as she did, the plaintiff does not have the skills and aptitude for customer service type work. He is very much a hands-on worker. Further, to work in an office environment or sales environment is just “not Neil”.
70 In September 2015, Associate Professor Saji Damodaran, psychiatrist, said, of the plaintiff, that it was her view that his irritability, short temperedness and angry outbursts mean that he may not be suitable to work in a customer relationship role. She concluded by saying that his ability to work as a customer service representative will be affected because of his irritability, his angry outbursts and his rigid thinking style, which is of premorbid origin.
71 In February 2017, Dr Sunil Datta, treating psychiatrist, reported that she was working with the plaintiff to address his argumentativeness, irritability, aggression and his social interaction. She referred to the plaintiff as having a relapse, characterised by anger and irritability and lack of motivation.
72 The plaintiff told the Court of the difficulty he confronted and the effect it had upon his family.
73 I accept the plaintiff’s evidence, which is supported by the evidence of his wife, that his employment has been physical work, in large part, performed outdoors. He impressed me as a man who took great pride in the physical work he performed.
74 I accept that the plaintiff’s evidence as to his computer skills. I accept they would not qualify him for office work. This is supported by Mr Hartley.
75 I accept the plaintiff’s evidence that his personality has changed and that he gets grumpy with his family on a regular basis. He is rude to people, and abuses people who try to sell him things. He said he is so rude to people that his wife is embarrassed to be with him out of the house. I accept this evidence. It was supported by his wife and medical witnesses.
76 The issue is whether this particular plaintiff, given his past work experience and his personal circumstances, has capacity, in this case, working as a customer service representative.
77 By reference to the definition of “suitable employment” found in s5(1) of the Act, regard is required to be had to “the nature of the worker’s pre-injury employment” and “the worker’s age, education, skills and work experience”.
78 Recent Court of Appeal decisions in Richter v Driscoll[17] and Harris v DJD Earth Moving Pty Ltd[18] have considered suitable employment and no current work capacity. In Richter, the Court of Appeal considered the question of whether a worker is able to return to work in suitable employment specifically requiring a consideration of matters travelling beyond the physical capacity to perform a task.
[17]Supra
[18][2016] VSCA 188
79 In Richter, the Court said the issue of current work capacity and suitable employment requires a consideration of the worker’s ability to work having regard to the entirety of the worker’s personal circumstances – that is, his injury caused incapacity, and other relevant personal circumstances which were discussed – meant that he would be unlikely to be successful in obtaining employment because he had nothing “‘merchantable to sell”.[19]
[19]Richter v Driscoll (supra) at paragraphs [95] and [106]
80 The Court made it clear that capacity for work to return to pre-injury employment, or otherwise, requires a consideration of matters over and above just a physical capacity to carry out tasks. Ashley and Kaye JJA clarified that the current law expressed in Barwon Spinners Pty Ltd & Ors v Podolak,[20] did not limit the definition of “suitable employment” to focus solely on a worker’s physical capacity to undertake a task. Instead, it requires a holistic assessment of the plaintiff.
[20]Supra
81 However, in Harris v DJD Earthmoving Pty Ltd,[21] the Court adopted a different approach to “suitable employment”, where it stated, at paragraph [49], that it was:
“… incumbent on the judge to demonstrate by his statement of reasons that he had considered in detail what, if any, specific job or jobs 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 a pain management program and/or a drug treatment program and/or the undertaking of vocational education.”
(footnotes omitted).
[21]Supra
82 Counsel for the plaintiff submitted that the plaintiff was not capable of taking on a job in the real world on the basis that he:
·Was a fifty-five year old man with a history of manual employment, who now had limitations in using his left foot
·Suffered increased pain which required substantial levels of medication which affects his ability to perform and concentrate
·Has no computer skills
·Has no capacity to engage in customer interaction: he has characteristics of anger, irritability, lack of motivation, for which he is being actively managed
·Is limited in his capacity to stand and sit
·Has applied for a number of jobs without an interview.
83 Applying the principles of Richter, taking into account a holistic assessment of the plaintiff – he is 55 years of age, he has manual work experience only, he is limited by the use of his left foot. He is limited in his capacity to sit and stand. He suffers increased pain, requires substantial levels of medication which affects his ability to perform and concentrate. His personality is such that he is not suited to a customer relationship role. It does not appear on the evidence that the plaintiff has merchantable skills to sell in the employment marketplace.
84 Applying the principles of Harris, and taking into account the medical restrictions imposed and the plaintiff’s basic computer skills, it appears that the defendant has not identified a suitable job that the plaintiff may obtain.
85 Taking into account a holistic assessment of this particular plaintiff, he has limited work experience which is confined to physical work. I accept the argument of the plaintiff that he has no work capacity for suitable employment.
Conclusion
86 Given the medical evidence and my observations of the plaintiff, I accept the fact the plaintiff’s employment capacity is limited because of the disabling effect of his left foot injury. I rely on what Smith J said in Public Transport Corporation v Pitts[22] and follow Giankos v SPC Ardmona Operations Limited.[23]
[22][2007] VSC 356
[23][2011] VSCA 121 at paragraph [115]
87 Smith J said:
“The case was one where it was plainly open to the learned magistrate to conclude that the plaintiff had established a prima facie case that no suitable employment as defined in the legislation existed and so was entitled to succeed in his case unless the defendant produced evidence sufficient to raise some specific alternatives for consideration. In my view, the reality was that the defendant had to adduce evidence sufficient to raise as a real possibility that there were particular types of employment available in the community which the plaintiff was capable of performing. If it did not it would lose. Thus there was an evidentiary onus on the defendant on that issue.”[24]
[24]Public Transport Corporation v Pitts (supra) at paragraph [17]
88 The plaintiff is now fifty-five years old. The plaintiff’s working life has been in manual employment. I accept the plaintiff is a man who has derived his livelihood and his character from the strength of his body throughout his life. He has always been a manual worker. He has no capacity to return to any employment for which he is suited. The plaintiff impressed me as a man who wanted to work. In fact, the plaintiff continued to work after his injury for a number of years, with the result that his foot pain has deteriorated. The plaintiff continued to work until mid 2013, and he described to the Court the specific difficulties that he had in terms of increasing pain and in using equipment, in particular, in climbing up and using his left foot, which was entirely consistent with the medical report at the time.
89 The injury suffered by a stoical plaintiff is not to be viewed any less seriously, merely because he manages to remain more active than might have been expected, given the level of pain. I accept that the plaintiff was stoical.
90 The plaintiff told the Court and medical witnesses that he wanted to return to work. He outlined the applications he had made for employment without being offered a formal interview. I accept that his inability to return to work represents a significant loss to this plaintiff, both with respect to his enjoyment of life and his self-esteem.
91 Given the length of time the injury has persisted, and the medical evidence, I am satisfied that the plaintiff’s impairment is permanent. I am satisfied that it is fair to describe the consequence of the plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by comparison with other cases in the range.
92 The plaintiff, therefore, satisfies the narrative test.
93 No element of the mental component is taken into account in this assessment. Indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
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.
95 Given the medical evidence and the vocational report of Vocational Directions, and that the plaintiff’s injury has continued since 2010, I find that the plaintiff is effectively out of the workforce for any suitable employment as a result of the impairment of the left foot, and the consequences flowing from that. Accordingly, there is no need to go into any analysis of wage rates as I do not accept that he has any residual capacity, when the medical restrictions placed on him by the medical witnesses are considered in the context of the real commercial world.
96 The plaintiff has been fully engaged with Nabenet in 2014 and the commencement of 2015, attending interviews, assisting with the construction of job applications and in some instances, sending those job applications off himself, or authorising Nabenet to do so. He has attempted to secure employment. He said he had spoken to the workers at Bunnings about obtaining employment but was told he required customer service experience. He went for an interview with Masters, a group interview, but did not get past the second stage.
97 The plaintiff said he was enrolled in a basic computer course in 2014 by the WorkCover rehabilitation agent. He completed that course and, in 2015, he did a Word and Excel courses which he paid for himself. The courses were conducted at a Neighbourhood Community House. I accept that the plaintiff has been offered limited retraining in the form of a basic computer course. He has undertaken that retraining. I also accept that he has undertaken all rehabilitation that has been offered to him.
98 In view of the matters I have described, the plaintiff has discharged the onus with respect with his impairment of the left foot regarding his loss of earning capacity.
99 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages in respect of the left foot.
100 Having made these findings, it is appropriate to make any order granting the plaintiff leave to commence a proceeding at common law seeking damages.
101 I will hear the parties on costs.
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