Holley v Mansion Hotel and Spa at Werribee Park Pty Ltd
[2015] VCC 1607
•20 November 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-03060
| SCOTT GRAHAM HOLLEY | Plaintiff |
| v | |
| MANSION HOTEL AND SPA AT WERRIBEE PARK PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 September 2015 | |
DATE OF JUDGMENT: | 20 November 2015 | |
CASE MAY BE CITED AS: | Holley v Mansion Hotel and Spa at Werribee Park Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1607 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the neck – loss of earning capacity – pain and suffering conceded – disentanglement
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Public Transport Corporation v Pitts [2007] VSC 356; Giankos v SPC Ardmona Operations Limited [2011] VSCA 121
Judgment: Leave granted to the plaintiff to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of his employment with the defendant on 26 October 2011.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Adams QC with Mr R C Forsyth | Patrick Robinson & Co |
| For the Defendant | Mr D Masel QC with Mr J Angenent | Minter Ellison |
HER HONOUR:
1 This is 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 the defendant on 26 October 2011.
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) and clause (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function;
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The body function relied upon in this application is in respect to the neck.
6 The plaintiff relied upon his affidavit sworn on 1 September 2014. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavit and evidence. However, I will refer to the plaintiff’s evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issues
7 Counsel for the defendant conceded that the plaintiff’s physical injury was a “serious injury” in respect to pain and suffering. What was in issue was whether there was a loss of earning capacity within s134AB(38)(e), (f) and (g). Counsel for the defendant conceded he did not have the capacity for pre-injury duties. The question was what retained capacity he has for suitable duties.[1] Counsel for the plaintiff submitted that in reality, the plaintiff has a total loss of earning capacity, although he did not abandon the threshold or percentage test under the statute.
[1]Transcript (“T”) 56, L7-9
Relevant legal principles
8 The founding principles of law regarding serious injury applications are discussed in the many well-known case authorities.
9 In relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[2]
[2]Section 134AB(19)(b) and s138(e) of the Act
(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;[3]
[3]Section 134AB(38)(e)(i) of the Act
(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;[4] and
(c) that even with rehabilitation and retraining, he will still sustain a loss of 40 per cent or more.[5]
[4]Section 134AB(38)(e)(ii) of the Act
[5]Section 134AB(38)(a) of the Act
Video surveillance
10 The defendant included video surveillance of the plaintiff in the index to its Court Book. No video surveillance was shown. Nor was its absence explained. I infer that the surveillance did not assist the defendant’s case.
Credit of the Plaintiff
11 The plaintiff’s credit was not in issue. The plaintiff was consistent in reporting the injury and its consequences to the doctors whom he saw. There was no suggestion by medical witnesses that the plaintiff exaggerated or embellished his consequences. The plaintiff was vague as to dates and time. For example he thought he had been treated by Dr Khan, consultant physician in rehabilitation and pain medicine, for approximately two years. According to Dr Khan’s reports, he commenced treating the plaintiff in February 2014 and saw the plaintiff most recently in July 2015. There was no suggestion by counsel for the defendant that the plaintiff’s credibility was in issue. No medical evidence raised his credit or reliability as being in issue. Overall, the plaintiff impressed me as a credible witness.
The expert evidence
12 The plaintiff’s medical evidence was put forward from the following practitioners:
· Dr Naomi Bronzite, treating general practitioner
· Ms Jacqueline Bloder, treating physiotherapist
· Mr Tiew Han, consultant neurosurgeon
· Dr Saleem Khan, consultant physician in rehabilitation and pain medicine; and
· Associate Professor Kenneth Myers, Associate Professor of surgery and consultant general surgeon.
13 In addition, the plaintiff relied upon the vocational assessment report of FlexiPersonnel.
14 The defendant’s medical evidence was put forward from the following practitioners:
· Mr Gerald Moran, orthopaedic surgeon
· Dr Umberto Boffa, occupational practitioner; and
· Dr Dominic Yong, occupational physician.
15 In addition, the defendant relied upon the vocational assessment of Work Able Consulting in its NES Vocational Assessment report, and the report of CoWork Pty Ltd.
16 I have read the material tendered by the parties.
The Plaintiff’s evidence
17 The plaintiff’s evidence was that he commenced work for the defendant in 2005. Initially, he was employed by the defendant as a storeman. However, when the defendant came to realise that the plaintiff had a background ‘on the tools’, he was employed to undertake storeman and maintenance work. After about four years, he left his job with the defendant and drove trucks for approximately two-and-a-half years.
18 The plaintiff returned to work for the defendant again in September 2010. The defendant employed him as a maintenance manager. In that role, he oversaw the plant and machinery at the defendant’s site. He was required to undertake repairs, painting, minor plumbing and look after the grounds.
19 In October 2011, he was injured at work when a tilt-a-door came down in the wind and struck him on the forehead. He experienced pain in his neck and left shoulder. He thought the pain would resolve. He remained at work for approximately ten days, but was struggling.[6] He then went on holiday to Thailand with his daughter for ten days. His neck pain did not resolve.
[6]T28, L12
20 In late November 2011, the plaintiff consulted his general practitioner, who referred him to a physiotherapist. He was referred for x-ray and a CT scan and in 2012, he was referred to a neurosurgeon, Mr Tiew Han.
21 The plaintiff’s evidence was that he continued working for a further two years with restrictions of light duties: no work on ladders and no work in confined spaces; no woodcutting or jolting work and, initially, no lifting anything greater than 10 kilograms. He struggled with the light duties, and was reporting pain to his general practitioner.
22 On 12 March and 3 May 2013, the Certificates of Capacity signed by his medical practitioner referred to the plaintiff slipping in the kitchen at work on 8 March 2013. The plaintiff could not remember slipping in the kitchen at work. The plaintiff said he had not hurt himself again at work. He lodged no claim form, which he knew was required if he had injured himself by slipping.
23 On 3 May 2013, the plaintiff was certified as fit for work at 4 hours per day, light duties. Accordingly, in May 2013, the plaintiff reduced his hours to 20 hours per week. This continued until his work was terminated on 30 September 2013. The plaintiff’s evidence was that while he was at work until September 2013, he was unable to perform the restricted duties because of the pain. The work he performed involved tasks such as fixing locks and obtaining quotes from contractors for the new general manager.
24 At the time his work was terminated, the plaintiff was struggling with the pain. He was undertaking light duties and hoping that he would improve.
25 The plaintiff gave evidence that approximately two years ago, Dr Khan commenced to treat him. Dr Khan prescribed medication of orphenadrine, known as Norflex, and Lyrica. Both medications assisted the plaintiff with pain. Norflex helps him sleep through the night, it rests the muscles and spasm, and Lyrica assists with nerve pain and burning. However, the medication has significant side effects, which the plaintiff described as “pretty ugly”.[7] He suffers confusion and difficulties concentrating.
[7]T13, L13-31
26 The plaintiff gave examples of the confusion he suffers. For example he got into his car and did not know where he was supposed to go. He forgot his PIN number, which he has used for twenty years. Recently, he went to operate the remote control, which he has had for ten years, and could not operate the controls. He feared he was suffering from dementia. If he takes the medication, he avoids driving. He attended a computer course, which was a two-hour session per week over ten weeks. He did not take the medication to avoid the feeling of confusion, but was in pain, which was distracting, and affected his ability to concentrate. He said he cannot cope without the medication.
27 The plaintiff’s evidence was that his work experience has been in manual work, other than two short-lived jobs, years ago at the commencement of his working life. He was off work for approximately ten years caring for his children. He performed voluntary work of a manual nature during that period. [8]
[8]CoWork Pty Ltd – Defendant’s Court Book (“DCB”) 86
28 The plaintiff’s evidence was that he was keen to work. He said he wants to be the breadwinner of the family. He feels pretty low not being able to provide properly. In evidence he said:
“… that’s my job, my duty to do that. …
If that means a new career and starting somewhere on lesser hours and building up, that’s what I’ll do.
… if the pain doesn’t go away, I’ve got no hope. If I continue with this sort of pain there’s problems.”[9]
[9]T43
29 In re-examination, the plaintiff said he loved working with the defendant:
“… the reality of being unemployed and losing a job at a place I love, so a bit of a double whammy.”[10]
[10]T45
30 The plaintiff doubted whether he could work part time without medication. He said he is in pain and he needs the tablets. He said:
“If I want to concentrate properly… I can’t take a tablet. But if I want to get rid of the pain, I’ve got to take a tablet, so it’s around in circles.”[11]
[11]T46, L31 – T47, L2
31 On the first day of hearing, the plaintiff gave evidence that he had taken one tablet the night before and he was still a bit dopey in the morning. His evidence was that the medication makes him clumsy, so he cannot drive and uses public transport.
32 The plaintiff said he has not tested the medication with work. He said that his short study courses were the most comparable activity to work, but during the course, he was only required to concentrate for an hour or two, and was able to walk around during the session.
33 The issue was whether the plaintiff had capacity for suitable employment and, if so, whether he satisfied the statutory test for loss of earning capacity.
34 I find that the plaintiff has satisfied the statutory test, on the basis that he has a total loss of earning capacity. I turn now to detail my findings.
Analysis – earning capacity
35 The plaintiff relied upon his general practitioner, Dr Bronzite, who discussed whether the plaintiff may be able to work locally for about 20 hours per week performing light office duties, although this has not yet been put to the test. She said the plaintiff would not make a full recovery and his symptoms have plateaued.
36 Dr Bronzite listed the plaintiff’s current disabilities as:
§ difficulty looking to the left, looking upward (from his neck) and crouching
§ continual stiffness and pain in the neck
§ daily headaches
§ tingling fingers on the left hand
§ pain after sitting still for 20 to 25 minutes
§ inability to undertake heavy lifting (for example food shopping)
§ driving is limited to about 30 minutes.
37 Dr Khan said, in September 2015, the plaintiff had no capacity for employment. Dr Khan did not go on to consider whether that was permanent. However, he treated the plaintiff on four occasions in February, June and September 2014 and July 2015. This did not change Dr Khan’s prognosis. It is unclear from his reports whether Dr Khan was aware of, or knowledgeable about, the plaintiff’s re-training and part-time work after the injury.
38 Associate Professor Myers said the plaintiff will suffer permanent pain and suffering. He did not anticipate any future improvement in the problems relating to the neck. The plaintiff will be restricted in his capacity to perform any type of work, full time or part time, as a result of his physical injuries.
39 Counsel for the defendant took issue with Associate Professor Myers’ report. It was submitted that Associate Professor Myers obtained a false history, or misunderstood the facts, because he recorded that the plaintiff ceased work due to an inability to cope. Counsel for the defendant submitted that in fact, the plaintiff persevered at work with restrictions for approximately two years, without significant absences, until his employment was terminated. It was submitted that Associate Professor Myers’ opinion is coloured by this misunderstanding, or falsity. I do not accept this submission, taking Associate Professor Myers’ report as a whole. It is not fatal to Associate Professor Myers’ considered opinion. Further, it is not inconsistent with the plaintiff’s evidence to the Court that he was having difficulties with tasks at work prior to ceasing.
40 Counsel for the defendant further submitted that a disentanglement was required in respect to Associate Professor Myers’ findings, and also the findings of Dr Bronzite. That is, the defendant submitted that both Associate Professor Myers and Dr Bronzite intermingle findings about the plaintiff’s physical injury, together with a mental component. I do not accept that submission. Taking the reports as a whole, it is clear the medical witnesses make their findings based on the plaintiff’s physical injury. In particular, I accept that Dr Bronzite’s reference to a Chronic Pain Syndrome refers to chronic physical pain for this plaintiff. I accept that Associate Professor Myers did disentangle the physical consequences from the mental component.
41 Counsel for the defendant submitted that Associate Professor Myers did not actually report that the plaintiff lacked earning capacity. I take into account the fact that Associate Professor Myers did consider the NES Vocational Assessment Report of 10 October 2013 and the CoWork Vocational Assessment Report of 17 July 2013, and concluded that the jobs identified as suitable employment options would cause strain upon the plaintiff’s neck, or would lead to worsening disability that would impair his ability to hold down a position long term.
42 Associate Professor Myers said the plaintiff should be encouraged to continue with his present attempts to learn skills to become involved in administration. However, I do not accept that this translates into an earning capacity for the plaintiff, particularly in the context of Associate Professor Myers’ report overall, together with the plaintiff’s evidence. I accept that Associate Professor Myers went on to state that the plaintiff is permanently restricted in terms of any type of work, full time or part time.
43 In respect to the reports of Ms Bloder and Mr Han, I take into account that they are not up-to-date. I place less weight upon them when assessing the plaintiff’s current earning capacity.
44 I accept that most of the plaintiff’s employment roles have involved manual work. The plaintiff’s evidence was that his employment history is predominantly in manual work.
45 The defendant relied upon a report of Mr Moran, who opined that the plaintiff has a current work capacity, albeit with restrictions. The report of Mr Moran is dated 2012 and I place less weight upon it when assessing current earning capacity.
46 There were two Vocational Assessment Reports relied upon by the defendant. The first is the WorkAble NES Vocational Assessment Report dated 10 October 2013. In that report, suitable employment options were identified which included:
§ maintenance/facility officer
§ hire control machinery
§ hire assistant, trade counter salesperson
§ inventory controller
§ stock clerk, cashier
§ console operator; or
§ customer service/enquiry clerk.
47 Co-Work Pty Ltd provided a Vocational Assessment Report of 17 July 2013 and identified the following occupations:
§ maintenance co-ordinator
§ product assembler (electronics)
§ radio despatcher/transport co-ordinator; or
§ road traffic controller.
48 The vocational assessment reports relied upon by the defendant were considered by Dr Boffa and Dr Yong.
49 Dr Boffa, occupational physician, said the plaintiff was fit for a graduated return to maintenance co-ordinator and transport co-ordinator roles, which must avoid prolonged neck posture or repetitive movement and high impact activity. He said the plaintiff could not perform roles as a product assembler, or in traffic management as a road traffic controller.
50 Dr Yong, occupational physician, said the plaintiff could return to maintenance co-ordinator role. He thought the description of the role was likely to comply with the plaintiff’s restrictions and would be considered reasonable. He also considered the plaintiff could return to radio despatcher/transport co-ordinator. He noted that both positions required computer-based duties.
51 Dr Yong considered the plaintiff could return to work on a graduated return to work program. He suggested initially working reduced hours such as 20 hours per week, and increasing progressively, with the aim of returning to pre-injury hours over a four to five-month period.
52 Associate Professor Myers considered the employment options identified in the Co-Work Vocational Assessment Report of maintenance co-ordinator, product assembler and radio despatcher/transport co-ordinator and radio traffic controller. He noted these roles would require a degree of physical activity that would place strain upon the plaintiff’s neck, and lead to worsening disability. Associate Professor Myers said the work options were not appropriate. I accept the evidence of Associate Professor Myers on this point, it is consistent with the plaintiff’s evidence. It is also consistent with the conditional view or qualification expressed by Dr Boffa.
53 Accordingly, I accept the plaintiff cannot return to pre-injury employment, nor can he perform suitable employment as discussed in the vocational assessment reports of WorkAble and CoWork Pty Ltd. The remaining issue is whether the plaintiff can perform suitable administrative work.
54 I accept the plaintiff’s experience of clerical employment was basic, and occurred in the 1970s, many years ago. After leaving school, he obtained employment with a firm of architects, where he operated the printer, similar to a big photocopier. He then obtained employment with Customs Victoria, undertaking office work, and putting records on a microfiche machine, but did not like working indoors. Since then, he has been employed in manual work.
55 Based on the plaintiff’s evidence, he has attended two computer short‑courses over ten weeks, being one day per week, for two hours. The plaintiff’s evidence was that the computer courses he completed involved:
“Just learning basic Word … Office and Excel, PowerPoint, and just playing on the computer really, just learning where the keys are and what not ... .”[12]
[12]T43, L19-22
56 At the time of hearing, the plaintiff was about to commence a third short-course called Advanced Digital Literacy. He hopes it will make him more proficient. He said the insurer agreed to pay the $35 cost of the course. I accept the plaintiff’s evidence that the computer courses are basic and, moreover, that he forgets what he has learnt when not using a computer. The plaintiff’s evidence was that he enrolled in a Certificate IV in Occupational Health and Safety, but was unable to complete the course, as he could not concentrate due to the medication.
57 I accept, given the basic nature of the computer courses, this is unlikely to translate into an earning capacity for the plaintiff. I rely upon the report of Ms Forster of Flexi Personnel Pty Ltd, who said the plaintiff would be limited in performing administrative work as he has no functional, commercial computer and administrative skills. The author of the report, Ms Forster, is a human resources consultant with extensive experience in occupational rehabilitation and recruitment for over thirteen years. Her education is a Bachelor of Arts degree and Graduate Diploma in Business Systems. I accept that her report is based on the medical opinions of Associate Professor Myers and the treating general practitioner. Whilst I accept that Ms Forster cannot comment directly on the plaintiff’s functional capacity, she is able to comment on his computer and administrative skills based on the courses he has attended and his experience.
58 The plaintiff’s evidence is that he has difficulty concentrating because of the medication he is taking. If he wants to treat the pain, he must take medication. If he takes the medication at night, he is still dopey the next morning and a little bit clumsy. He has not tested the medication with work.
59 Given the medical evidence and my observations of the plaintiff and his lack of administrative skills, I accept that the plaintiff’s employment capacity was limited because of the disabling effect of his injury and his lack of commercial computer or administrative skills. I rely on what Smith J said in Public Transport Corporation v Pitts[13] and followed in Giankos vSPC Ardmona Operations Limited.[14] 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.’”
[13][2007] VSC 356
[14][2011] VSCA 121 at paragraph [115]
Conclusion
60 I note the plaintiff has been out of employment for almost four years, and based on my impression of the plaintiff’s presentation in Court, I consider it unlikely that he will be able to return to work. I also take into account the effects of the medication the plaintiff was taking.
61 The evidence was that the plaintiff had been in continuous employment, other than a period of ten years when he was the primary carer for his three children, most of which had been in heavy manual work.
62 The plaintiff’s evidence was that he misses work. He enjoyed working, it was his duty to work and be the breadwinner. He also spoke about the sense of accomplishment of doing a good job.
63 The plaintiff can no longer work in pre-injury employment. I am also satisfied that the plaintiff cannot return to any suitable employment. Given his age of fifty-four years, the fact that he cannot return to his pre-injury employment or suitable employment represents a significant loss to the plaintiff, both with respect to his enjoyment of life and self-esteem.
64 I am satisfied that the plaintiff’s impairment is permanent, given the medical evidence, and that it has continued since 2011.
65 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by a comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments. 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.
66 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. Given the medical evidence and the plaintiff’s injury has continued since 2011, I find that the plaintiff is effectively excluded from any suitable employment as a result of the neck injury and the consequences flowing from that. Accordingly, there is no need to enter into an analysis of wage rates. I do not accept that the plaintiff has any residual capacity, when the medical restrictions placed on him by the medical witnesses are looked at in the context of the real commercial world. The plaintiff has been offered re-training and has undertaken the re-training offered. I accept that the re-training does not qualify him to obtain administrative-type work. Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
67 In view of the matters I have described, the plaintiff has discharged the onus with respect to his impairment of the neck regarding his loss of earning capacity. It is unnecessary to examine the claim for severe mental or behavioural disturbance or disorder.
68 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
69 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of his employment with the defendant.
70 I will hear the parties on costs.
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