Howden v SPC Ardmona Operations Limited (ACN 004 077 105) and Victorian WorkCover Authority
[2018] VCC 1035
•12 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-04260
| PETA JUNE HOWDEN | Plaintiff |
| v | |
| SPC ARDMONA OPERATIONS LIMITED (ACN 004 077 105) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7, 8 and 12 June 2018 | |
DATE OF JUDGMENT: | 12 July 2018 | |
CASE MAY BE CITED AS: | Howden v SPC Ardmona Operations Limited (ACN 004 077 105) & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1035 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left lower limb – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Dahl v Grice [1981] VR 513, Richter v Driscoll [2016] VSCA 142
Judgment: Leave granted to the plaintiff to bring proceedings for pecuniary loss damages and for pain and suffering damages for injury to the left lower limb suffered by her in the course of her employment 9 July 2014.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh with Ms N Crowe | Barbante Personal Injury Lawyers |
| For the Defendants | Mr P Scanlon QC with Mr S Martin | Russell Kennedy |
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 her in the course of her employment with the first defendant on 9 July 2014.
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 a body function.”
5 The body function relied upon in this application is injury to the left lower limb.
6 The plaintiff relied upon three affidavits, two sworn by the plaintiff on 27 April 2017 and 12 May 2018, and an affidavit sworn by her partner, Allan Richardson, on 17 May 2018. The plaintiff was cross-examined. I have not summarised the evidence, including the plaintiff’s evidence in Court, and the affidavit evidence of the plaintiff and Mr Richardson; however, I will refer to the relevant evidence of the plaintiff and Mr Richardson 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.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the first defendant;[2]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of her impairments to the left lower limb in relation to “pain and suffering” or “loss of earning capacity” 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”.[4]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c) of the Act
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]Section 134AB(19)(b) and 38E of the Act
(a) that at the date of hearing, she 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;[6]
[6]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[7] and
(c) that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more.[8]
[7]Section 134AB(38)(e)(ii) of the Act
[8]Section 134AB(38)(a) of the Act
10 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
11 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[10][2009] VSCA 181
[11](supra) at paragraph [42]
13 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[12]
[12]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
14 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
15 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[13]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[14]
[13]Section 134AB(38)(j) of the Act
[14] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issues
16 Counsel for the defendants informed the Court that the following issues arise:
(i) The plaintiff suffered a fracture of the left ankle which has healed in good position and union. The condition that the plaintiff now is suffering from is the osteoarthritic change which is not materially contributed to by the incident at work. The osteoarthritic change is pre-existing and does not arise from the fracture;
(ii) The plaintiff has an ongoing capacity for appropriate suitable employment and, as a result, the plaintiff cannot establish that she has lost a capacity to earn income to the extent of 60 per cent of her pre-injury earnings;
(iii) The plaintiff has not undertaken any rehabilitation or retraining.
Credit of the Plaintiff
17 There was no real challenge to the plaintiff’s credit by counsel for the defendants. The plaintiff is aged fifty-nine. She had limited education, having left school after Year 8. Her work experience was mainly manual work. She was employed by the first defendant in about 2001 and had worked until her injury. The plaintiff answered questions as best she could. On occasions, she required further information before answering her questions. She often made concessions. There was no suggestion by counsel for the defendants, or in the medical evidence, that the plaintiff’s credibility was in issue. Overall, the plaintiff impressed me as a believable witness.
Analysis of the evidence
18 There was no issue between the parties that the plaintiff suffered a work-related injury to her lower left limb. What was in issue was the extent of the current injury and whether it was work related.
19 Counsel for the defendants submitted that the plaintiff had suffered a displaced fracture of the lateral malleolus which was internally fixed with a plate and screws. The medical evidence is that the fracture resulted in good union. The plaintiff now complains of pain in the foot. The defendants submitted that the pain is not emanating from the fracture of the area of the injury. Any consequences of that pain, being the pain in the foot, are not related to the fracture of the lateral malleolus that was injured. I shall consider what the medical evidence is as to the extent of the plaintiff’s work injury.
The work injury
20 In September 2015, Mr Ian Critchley, orthopaedic surgeon, examined the plaintiff on referral from the plaintiff’s general practitioner. He said that in July of 2014, the plaintiff sustained a fracture of her lateral malleolus which was treated with internal fixation at GV Health. She sustained the injury at work. The pain she experiences currently is in fact in the midfoot and not related to her ankle. She does not describe any ankle pain but has spasms that radiate from the midfoot to the forefoot.
21 He said, on examination, the range of motion of the left ankle was about 60 per cent of that on her normal side. The subtalar joint range of movement was restricted.
22 Mr Critchley reviewed new x-rays taken in September 2015 he had organised of the ankle and foot. He said the x-rays show a plated fracture of the left malleolus which appears to have healed. X-rays of the foot show quite marked tarsometatarsal joint osteoarthrosis affecting the third and, to a lesser extent, the second joint. Her ankle x-rays show early signs of post-traumatic osteoarthrosis.
23 He provided her with a certificate for a month off work.
24 In May 2018, Mr Critchley reported to the plaintiff’s solicitor that the plaintiff sustained a fracture of the lateral malleolus during this injury. She had signs of osteoarthrosis of her ankle radiologically, although they were less marked clinically apart from the restriction of motion. He said the plaintiff also has osteoarthrosis of her ankle joint and osteoarthrosis of her mid-tarsal joint which is significantly affecting her mobility.
25 Mr Critchley said, of her ankle joint, it probably relates to post-traumatic osteoarthrosis sustained following the fracture of her ankle. There is a possibility rather than a probability that the osteoarthrosis of the tarsometatarsal joint is secondary also to this injury, but it is more likely to have been present pre-operatively, and may have been exacerbated by the injury.
26 In May 2018, Dr Kashif Ahmad, general practitioner, diagnosed post-traumatic stiffness of the left hindfoot, post-traumatic osteoarthrosis and ongoing left ankle pain. It was his opinion that the plaintiff’s injuries are consistent with the alleged trauma and most probably the injuries sustained were caused by the work accident.
27 In September 2017, Associate Professor Bruce Love, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Professor Love diagnosed a post-traumatic stiffness of the left hindfoot, and ongoing left ankle pain of imprecise cause. He said the pain is organically based and is a reasonable consequence of the injury the plaintiff suffered. Further, he said, in such an injury, all the structures adjacent to the ankle will be stretched and injured and those injured parts may not necessarily recover and may well remain symptomatic.
28 Professor Love said, based on the history as given to him, his opinions expressed are consistent with the alleged trauma, in that there is a certain probability that the injuries sustained were caused by the accident. He concluded that the injury was a significant contributing factor to her ongoing symptoms, the injury occurring as a consequence of employment
29 Mr Garry Grossbard, orthopaedic surgeon, examined the plaintiff at the request of the plaintiff’s solicitor and provided two reports dated May 2016 and May 2018.
30 In May 2018, Mr Grossbard said the current ongoing pain appears to be arising in the mid-tarsal area, probably at the talonavicular joint, and radiates into the greater toe. The plaintiff has an osteoarthritic great toe with restricted motion and palpable osteophytes. He said the plaintiff’s injury is the direct result of the incident at work on 9 July 2014. She is incapacitated, particularly in her ability to walk or stand. She is not able to lift or carry objects. Further, the plaintiff has probably developed a spontaneous fusion in the subtalar area, and most of her current symptoms relate to the midfoot. Mr Grossbard said, based on clinical grounds, he believed the plaintiff had a spontaneous ankylosis of the subtalar joint in neutral alignment.
31 In October 2015, Dr Sanjay Joshi, orthopaedic surgeon, examined the plaintiff at the request of the defendants’ solicitor. He reported that the plaintiff complained of aching in the left foot, which gets worse on activity. She reported pain on prolonged standing, prolonged sitting and stairs.
32 Dr Joshi said the plaintiff had been recommended sick leave, physiotherapy and a shoe insert. This treatment is recommended for degenerative changes in the foot and not for an ankle fracture and, in his opinion, is not for a work-related injury. He said the current treatment is recommended for mid-tarsal arthritis of the foot which is unrelated to her work injury. He said the plaintiff had a fractured lateral malleolus of her left ankle which has been treated surgically and has healed well, with normal ankle function. He said her current problem is pain in the foot which is unrelated to her injury. It was unclear whether he reviewed the plaintiff’s x-rays of 2014, but did not review the x-rays of 2016.
33 In February 2018, Dr Dominic Yong, occupational physician, examined the plaintiff at the request of the defendants’ solicitors. The plaintiff reported she has pain in her left foot and ankle, over the dorsum of the left foot. He said the plaintiff had a significant traumatic injury to her left foot and ankle, leading to a left ankle fracture which was treated surgically. She has left ankle and foot dysfunction and features of a post-traumatic arthritis in the region.
34 Dr Yong said the plaintiff described the nature of the alleged incident. She described being hit by a forklift whilst being a pedestrian. It was his opinion that it would be a reasonable mechanism of injury leading to the onset of the left foot and ankle condition. As this occurred whilst performing the inherent requirement of the role, her employment has contributed to the onset of the condition. Her condition has been treated surgically. She continues to have post-operative dysfunction and a post-traumatic degenerative process in the left foot and ankle. The employment continues to be a material contributing factor to the plaintiff’s current condition.
35 In May 2018, Dr Ian Dickinson, orthopaedic surgeon, examined the plaintiff at the request of the defendants’ solicitor. He said the plaintiff had an ankle fracture at work. She has very significantly flat feet. There is thick valgus at the left hindfoot. There is osteoarthritis of the midfoot and of the metatarsophalangeal joint of the left big toe. He had reviewed an x-ray. He said there is earlier osteoarthritis of the left ankle. The left ankle is in anatomical position following the fracture. The osteoarthritis does not appear to be related to the fracture. There is osteoarthritis of the talonavicular joint in the mid-tarsal region and there is also flattening of the foot with osteoarthritis of the left big toe metatarsophalangeal joint.
36 Dr Dickinson agreed with Dr Joshi that the degenerative change in the ankle joint was not materially contributed to by the plaintiff’s employment. It was premorbid in nature and has the appearance of gradual degenerative change. The ankle joint was fixed in good position and the arthritis does not give the appearance of being post traumatic in nature. The significant issues in relation to the plaintiff’s ankle and foot are in the hindfoot stiffness, and forefoot pain. He completely agreed with Dr Joshi. When he reviewed the plaintiff, as well as the midfoot and hindfoot pain, she also had forefoot pain. He said none of these conditions were related to the injury.
37 In Dahl & Anor v Grice,[15] the Court of Appeal said that proof by expert evidence is not required of the plaintiff to establish a causal connection between the act and the injury to the requisite degree of probability because that is for the tribunal to decide as an ultimate issue, taking account of the evidence of experts as to the existence of a link between the medical condition and the accident.
[15][1981] VR 513
38 Based on Mr Critchley’s report, supported by Professor Love, Mr Grossbard, Dr Ahmad and Dr Yong, I accept there was sufficient evidence to conclude that there is a causal link between the accident and the osteoarthritis. Accordingly, I accept that the osteoarthrosis of the plaintiff’s ankle joint relates to the post-traumatic arthrosis sustained following the fracture of her ankle, and that the osteoarthritis of the tarsometatarsal joint is secondary to this injury and was present pre-operatively and was exacerbated by the injury. I take into account, Dr Ahmad’s evidence that prior to the work injury, the plaintiff did not complain of any pain in the left foot.
39 On the basis of the medical evidence, the majority of the medical witnesses[16] accepted that the osteoarthrosis of the plaintiff’s ankle joint and osteoarthrosis of the tarsometatarsal joint and ongoing pain in the midtarsal joint are consistent with the trauma and are work related. Accordingly, I reject the defendants’ submission on this point.
[16]Mr Critchley, Mr Grossbard, Professor Love, Dr Ahmad and Dr Yong
Loss of earning capacity – the narrative test
40 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time.
41 The up-to-date medical evidence of the plaintiff’s current capacity for employment was expressed by Dr Ahmad, general practitioner, Mr Grossbard, Professor Love and Dr Dickinson, orthopaedic surgeons, and Dr Yong, occupational physician. Dr Joshi was the only medical witness to suggest the plaintiff could return to employment. However, I note that he last examined the plaintiff in October 2015.
42 Based on the up-to-date medical evidence, I accept that all medical witnesses expressed the view the plaintiff could not return to pre-injury employment.
43 In January 2016, Mr Critchley said the plaintiff could not resume her normal occupation. He said it was conceivable with surgery to the midfoot component of her condition, she would get some relief of her pain but whether or not this would be sufficient to allow her to wear the appropriate footwear and go back to the activity that she was doing before remains doubtful. He thought she may be able to obtain a more sedentary employment such as office work.
44 I place greater weight on the more up-to-date evidence of Dr Ahmad, Mr Grossbard, Associate Professor Love, Dr Yong and Dr Dickinson.
45 A number of the medical witnesses said that in effect, the plaintiff has no current capacity for work. They are Dr Ahmad, Mr Grossbard and Associate Professor Love.
46 In March 2017, Dr Ahmad said the plaintiff would be able to undertake activity of a sedentary or semi-sedentary nature provided she had some assistance with getting to her workplace. He imposed restrictions of not being able to stand or walk for long distances or periods of time, squat, kneel or climb ladders and stairs repeatedly. However, in May 2018, he said she had no capacity for employment in the near future.
47 In September 2017, Associate Professor Love said the plaintiff had no capacity to work in the future, which includes part-time work.
48 In May 2018, Mr Grossbard said the plaintiff cannot return to pre-injury employment. Suitable employment may be appropriate. He said her chances of returning to work are small, bearing in mind the plaintiff’s age – fifty-nine – level of education, together with her place of residence, living in Undera, with a population of 400, and limited driving capacity.
49 Given the plaintiff’s age, fifty nine years, her place of residence, Undera, with a population of 400, and her basic level of education, I accept that the plaintiff only has a theoretical capacity for work.
50 In 2018, Dr Yong and Dr Dickinson said the plaintiff could return to suitable employment. Both imposed restrictions, and Dr Dickinson said she could return to employment which would need to be largely sedentary.
51 In March 2018, Dr Yong, occupational physician, said the plaintiff had a current capacity to perform tasks within the following restrictions:
· Avoid prolonged standing and walking tasks
· Avoid repeated climbing duties
· Avoid repeated squatting and kneeling tasks
· Avoid repeated firm pushing and pulling tasks
· Initial reduction in working hours
· Avoid lifting more than 5 kilograms on a repeated basis.
52 He said examples of duties which would comply with the restrictions would include:
· Supervisory tasks
· Paperwork tasks.
53 Dr Yong reviewed the vocational assessment report by Co Work dated March 2018. The report identified the following employment options:
· Home-based ironer
· Courier.
Home-based ironer
54 In respect to the home-based ironer, the duties described included the following:
· Receiving job orders and making arrangements with client to collect clothing for ironing
· Driving to location and collecting clothing
· Iron clothing using steam iron and/or press with spray-on fabric stiffener, if required
· May sew on buttons and make minor repairs to garment
· Either fold or place clothing onto hangers
· Deliver laundered garments to client and confirm completion of job with employer.
55 Dr Yong thought minimal manual handling is likely in this role. A workstation could be set up so this is done in a standing or seated position. He thought the role is likely to comply with recommended restrictions and this would be considered suitable to perform.
Courier
56 In respect to the courier role, the duties described included the following:
· Sort and sequence items for delivery
· Deliver items to customer’s premises
· Receive orders for delivery from customers
· Collect signatures and charges for cash-on delivery orders
· Issue and collect receipts for pick-up and delivery items
· Keep records of items received and delivered
· Maintain workbooks, directories and other delivery records.
57 In respect to both employment options, Dr Yong thought it would be reasonable for the plaintiff to initially work reduced hours such as four-hour shifts for four days per week. These hours could be increased on a graduated basis, aiming to return back to pre-injury hours over a four to five-month period.
58 In May 2018, Dr Dickinson said the plaintiff is not fit to return to her full duties. She could return to suitable employment which would need to be largely sedentary. Dr Dickinson reviewed the Co Work report. He said the plaintiff would not be able to be a courier due to her left foot, which is stiff and painful. He did not expect that the plaintiff would be able to work more than a few hours per week at most.
59 In respect to home-based ironing, he said the plaintiff could work as an ironer for one or two hours’ standing time. She would not be able to do the ironing job for any greater time, and not full time. She would manage four to five hours per week.
60 The plaintiff relied upon vocational assessment reports from Mr Bill Radley, psychologist and vocational assessment specialist, dated August 2017, May and June of 2018. Mr Radley has over forty years’ experience living and working as a Rehabilitation Consultant, Employment Officer and Psychologist in rural Victoria.
61 In August 2017, Mr Radley said that the plaintiff had no current capacity to return to her pre-injury employment or to any type of alternate employment. She has no capacity to undertake any type of occupational retraining and no capacity for any type of employment in the future.
62 In May 2018, he was asked to consider further material. He said, from an employment perspective, the two occupations suggested as suitable employment for the plaintiff of home-based ironing and courier are neither realistic nor likely to be reasonably viable or available in her residential area.
63 Mr Radley provided a supplementary report in June 2018 and considered the Co Work report, namely the home-based ironing. He took into account the lack of such employment in the plaintiff’s residential area. He highlighted the fact that the plaintiff was interviewed by Co Work in Melbourne and by Dr Yong in Coolaroo. Neither visited the plaintiff at her residential area in the small rural community of Undera with a population of 440 people, about 210 kilometres north of Melbourne. To collect and deliver ironing in this part of Victoria would involve a round trip of 40 kilometres (Kyabram), 50 kilometres (Shepparton) and 100 kilometres (Echuca, Kyabram and Rochester) from the plaintiff’s home in Undera.
64 Mr Radley said, the time and cost to travel in rural areas will make employment as a home-based ironer uneconomical and unviable. In metropolitan Melbourne, such a person is typically employed on a contract, piecemeal or self-employed basis. The plaintiff has a low level of education and has no skills, training or aptitude for any type of self-employment.
65 Further, neither Co Work nor Dr Yong had a realistic understanding of the unique characteristics of employment in rural communities. He referred to the fact that the report suggested the plaintiff could drive and would be able to collect and deliver ironing jobs from customers in her local suburbs. He pointed out that the nearest reasonable sized rural centre is Shepparton, approximately 25 kilometres one way from the plaintiff’s residence, a round trip from the plaintiff’s home in Undera to Kyabram would be 40 kilometres, to Shepparton, 50 kilometres and 100 kilometres to Echuca. I accept the amount of travel time to collect and return ironing in rural areas would make employment as a home-based ironer uneconomical and unviable.
66 I agree with the Mr Radley’s comments that it is unrealistic to suggest the plaintiff could remain seated while performing her duties of ironing. She would have insufficient room to put her legs under the ironing board/press. Ergonomically it is probably not appropriate. Further, it seemed to me that one needs to stand when one irons, particularly to apply the appropriate pressure if one is ironing on a commercial basis.
67 Further, my understanding of delivering the ironing is that the completed job usually involves a number of items per customer, hanging on coat hangers which would involve the plaintiff manually handling loads, more than likely in excess of 5 kilograms. Given the pain the plaintiff reports in her left foot, and the restrictions imposed by Dr Yong, I consider the position of home-based ironer totally unsuitable employment. Further, I note in the Co-work report, according to Stinson, the total estimated number of jobs for ironers/pressers in the Campaspe, Echuca, Kyabram, Rochester, Greater Shepparton and Greater Moira area is four. The area described covers an area over 14,000 square kilometres.
68 In respect to courier, Mr Radley said the position would be unsuitable for the plaintiff.
69 Mr Radley considered in detail the position of courier in rural areas. He said that in rural areas, a driver collects and delivers “general freight” not just “light” freight.
70 First, the physical work demands are of a medium nature which involves lifting of up to 22.7 kilograms occasionally, with frequent lifting and or carrying of objects weighing up to 11.3 kilograms. Such work would be outside the restrictions imposed by the medical witnesses. Co Work described this occupation as short-distance driving and stated that goods to be transported are light in weight. Given the fact the plaintiff lives in the country, 25 kilometres from the nearest reasonably sized provincial city, Shepparton, to drive to and from work would involve a minimum of 50 kilometres per day.
71 Secondly, most deliveries will be from a base in one of the regional centres around the local district to and from other regional centres that will involve considerable driving and it would not be hard to imagine a delivery driver in a regional area driving up to 500 kilometres per day.
72 Thirdly, the physical demands of this position. Co Work suggested deliveries of Uber Foods, spare parts, pharmacy or pathology. Uber Foods rarely operates in rural areas. In rural Victoria, pharmacy and pathology deliveries are usually done on regional basis and involve collections or deliveries around a regional district and can involve delivering pathology specimens in Melbourne or collecting bulk pharmacy items from Melbourne, a distance from Shepparton of 195 kilometres.
73 Finally, I note that Co-work reports the median age of a courier is thirty-nine years.
74 I accept that based on the report from Mr Radley, that the position of a courier would not be suitable for the plaintiff. I note that Dr Dickinson agreed.
75 Given the medical evidence and the vocational assessment reports, I am satisfied that the plaintiff cannot return to work. The plaintiff is aged fifty-nine years. She has been out of the workforce for four years. I accept that the plaintiff attempted to return to work. I accept that her inability to return to work represents a loss to this plaintiff. Given the length of time her injury has persisted and the medical evidence as to the permanency, I am satisfied that the plaintiff’s impairment is permanent.
76 I am satisfied it is fair to describe the consequence 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 satisfied 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.
77 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.
78 Given the medical evidence, the vocational assessment reports and that the plaintiff’s injury has continued since 2014, I find the plaintiff is effectively out of the workforce for any suitable employment as a result of the impairment of her left lower limb and the consequences flowing from that. There is no need to go into any analysis of wage rates, as I do not accept she has any residual capacity when the medical restrictions placed on her by the medical witnesses are looked at together with the vocational report of Mr Radley, in the context of the real commercial world.
79 Pursuant to s134AB (38) (g) of the Act, I am required to consider rehabilitation and retraining.
80 There was no evidence that rehabilitation has been offered to the plaintiff or that rehabilitation would assist the plaintiff. Accordingly, I am satisfied that the plaintiff will continue to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
81 Counsel for the defendants submitted that there has been no attempt by the plaintiff at retraining. She has made no attempt to make herself work ready, through voluntary work, undertaken no course and no activity to pursue employment. Counsel for the plaintiff submitted that she attempted to continue with the job she had at the time of the injury, the job she had done for fourteen years. The plaintiff is aged fifty-nine years. Her work history has been manual work. She left school after Year 8. Mr Radley said a course of higher education occupational retraining is not a viable option for the plaintiff given her age of fifty-nine, low level of general education, limited literacy skills, low level of intelligence, limited ability to sit or stand for more than a short period, significant impairment of concentration and short-term memory.
82 I accept that the plaintiff would not be able to complete vocational training.
83 I accept the best counsel for the defendants could argue was that the plaintiff had a “theoretical” capacity for work tasks.
84 In Richter v Driscoll,[17] the Court of Appeal said that return to work in employment requires more than a physical capacity to engage in a task or tasks. The Court said:
“Second, we agree with the applicant’s submission that the word ‘employment’ carries with it the idea, as King CJ put it in Philmac, of return to work ‘as a settled or established member of the wage earning workforce’. In Philmac, the legislation simply referred to return to work. Even so, King CJ in substance found within that concept an implication of return to work in employment (which is expressly stated in the definition now under consideration); and return to employment in what might be described as a meaningful way, so as to obliterate a continuing need for weekly payments of compensation.”
[17][2016] VSCA 142 at paragraph [75]
85 I accept that the Court of Appeal in Richter stated that it was necessary to look further than the medical restrictions or the job tasks usually put forward by the doctors and consider each of the elements of suitable employment. First, if the nature of the work is incapacity and the details provided in medical information, including, but not limited to, the Certificate of Capacity supplied to the worker. It was accepted by the medical evidence that the plaintiff cannot perform her pre-injury employment and she has substantially reduced physical tolerances which include sitting, standing, lifting, manual handling and going up and down stairs. The second element of suitable employment is age, education, skills and work experience. In this case, the plaintiff is aged fifty-nine, having completed her schooling to the level of Year 8. She has not undertaken any further education. The plaintiff’s work history has always been manual work.
86 I accept counsel for the plaintiff’s submission that the plaintiff has a theoretical capacity for work tasks at best, which ranges between no hours and four or five hours per week. Further, I accept that in a real and practical sense, there is no one who would employ her.
87 In view of the matters I have described, the plaintiff has discharged the onus with respect to her impairment of the left lower limb regarding her loss of earning capacity.
88 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
89 In accordance with Advanced Wire & Cable Pty Ltd v Abdulle,[18] it follows I also grant leave to bring proceedings for pain and suffering damages.
[18]Supra
90 I will hear the parties on costs.
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