Jarvis v Woolworths Ltd

[2012] VCC 1329

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No. CI-11-03870

SARAH ELIZA JARVIS	Plaintiff
v
WOOLWORTHS LIMITED	Defendant

---

JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	12 and 13 September 2012
DATE OF JUDGMENT:	26 October 2012
CASE MAY BE CITED AS:	Jarvis v Woolworths Limited
MEDIUM NEUTRAL CITATION:	[2012] VCC 1329

REASONS FOR JUDGMENT

---

SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – back injury – loss of earning capacity – plaintiff under 26 years of age
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Humphries v Poljak [1992] 2 VR 129; Ansett Australia Ltd v Taylor [2006] VSCA 171; ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31; State of New South Wales v Moss (2000) 54 NSWLR 536; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
JUDGMENT – Leave granted for pain and suffering damages and loss of earning capacity damages.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J H Mighell SC with Ms M Pilipasidis	Maurice Blackburn
For the Defendant	Mr I S Gourlay	Gadens Lawyers

HIS HONOUR:

1 The plaintiff in this action seeks leave to commence common law proceedings against the defendant, her former employer, Woolworths Limited, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of both pain and suffering and loss of earning capacity damages.

2       The application relates to an injury to the plaintiff’s lumbar spine which she claimed she sustained in or about September 2009 whilst performing her duties as an “order picker”, which she alleges consisted of heavy work, especially when lifting boxes of goods from vertical lanes and then stacking them onto pallets behind her.  She would do about three pallets in half-an-hour and each pallet might have 150 boxes.  The boxes could weigh up to 16 kilograms.  The pallets were to be stacked to a height of 1.8 metres, which was above her head height.  It is alleged the work involved a lot of bending, lifting and twisting.

3 At the hearing, it was not in dispute that the plaintiff suffered a compensable injury in the course of her employment with the defendant on or about the date alleged. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the Act as a result of this compensable injury.  Paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.[1]

[1]Section 134AB(38)(b) and (c) of the Act

4       In his opening, Counsel for the defendant indicated that the main issue before the Court was whether the impairment subsisting at the time of hearing, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, can fairly be described as being more than significant or marked, and as being at least very considerable.[2]  This is colloquially known as a “range case”.

[2]          Humphries v Poljak [1992] 2 VR 129 at paragraph [140]

The Lumbar Spine Facts

5       The plaintiff is a twenty-seven year old married woman.  She completed Year 10 in Tasmania and then worked in a retail shop for a period and, thereafter, obtained a job at a local school, answering phones.  She did not particularly enjoy the first job as she considered herself “not very good at selling”.

6       At age nineteen, her first child was born, and in about 2007, she moved from Tasmania with her husband to Victoria.  She gave evidence that she took time off work for the birth of this child and returned to work after approximately six months.

7       Shortly after coming to Victoria, she commenced working for the defendant at their distribution centre in Mulgrave and was employed as an “order picker”.  Her hours of work varied between four and eleven hours.  She would frequently work a six-hour shift.

8       She has sworn that in the course of lifting and stacking boxes onto the pallets, she experienced back pain.  She reported it and attended the factory doctor.  She was given medication and placed on light duties.  She attempted to try to work on light duties for three days.  However, her back pain increased and she also started to develop leg pain.  Thereafter, she was on and off work, performing light duties, but was forced to cease work with the defendant in April 2010.  She made a claim for WorkCover payments, which was accepted, and she remained in receipt of weekly payments until approximately four weeks prior to hearing.

9       The plaintiff gave evidence that she was required to apply for a number of jobs by the defendant but she had no real belief in her ability to carry out same, and in fact she was never offered an interview with respect to any job.  In effect, under cross-examination, she stated that she considered herself totally incapacitated because of the constant pain that she suffers which she rates at about 5 or 6 out of 10.  In addition, this level of pain she is subject to constant flare-ups, such that she is totally disabled for periods of time lasting anything from an hour to a day.

The Injury

10      It is virtually common ground that in the course of her employment with the defendant, the plaintiff has suffered injury to the lumbar spine in the form of damage to the L4-5 intervertebral disc, with a possible annular tear and possible referred pain into the legs from time to time.  It is not claimed that there is any true sciatica.

11      Counsel for the defendant has referred the Court to the opinion of Associate Professor Anthony Buzzard, general surgeon specialising in spine and upper and lower limbs, who raises the prospect of a degree of functional overlay superimposed on physical injury.  He describes this opinion as the “high point” of his case with respect to injury.  Professor Buzzard, in his first report dated 3 February 2011[3] opined that there was –

[3]in Exhibit 6

“… some evidence of her having discogenic pain but this evidence is not great”. 

He further stated:

“It is possible that there is some degree of functional overlay associated with her presentation.”

12      Professor Buzzard considered that it was reasonable to accept that the plaintiff did have a “light work back” which would preclude her pre-injury employment but would not prevent her from carrying out full-time suitable employment in work not involving the lifting of weights greater than about 10 kilograms.  I note in passing that he accepted that there was a causal relationship between her employment and her physical injury.

13      I accept Counsel for the defendant’s submission that the examination findings were not remarkable.  However, there is no suggestion by Professor Buzzard that there was exaggeration by the plaintiff or that she was in any way trying to mislead him.  The plaintiff herself conceded under cross-examination that she had near full movement of her spine but that it was accompanied by constant pain.  Professor Buzzard does not call into question that her claims of pain are genuine.  Further, in opining that she was capable of full-time suitable employment, he has not considered the underlying level of pain and the propensity to flare ups as attested to by the plaintiff.  I consider this is significant in light of the history he took from her that she had been on light duties with the defendant up until March/April 2010 but ceased because “of too much pain”.

14      In his second report dated 30 November 2011,[4] Professor Buzzard took a history that the plaintiff continued to suffer from pain in the low back and had been so since 25 September 2009.  Although he took a history that the she was not presently on any medication, the plaintiff has given sworn evidence that she was pregnant at the time and did not wish to take a full complement of medication because of this fact.  Similarly, since the birth of her child in May of this year, she has been breastfeeding and is similarly mindful of the effect of her medication on the baby.  Once again, the examination was largely unremarkable, although he felt it was reasonable to accept that she had “non-specific low-back pain with a functional overlay”. 

[4]Exhibit 6

15      Further, he held to his previously expressed opinion that she had a “light work back” which would preclude her from her pre-injury employment.  He further considered she would be able to carry out suitable employment such as had been identified in a report from Co-Work Pty Ltd, dated 28 July 2011.[5]  Once again, he thought the aetiology of the injury was “probably discogenic”.  Once again, there was a lifting limit of 10 kilograms.  He then stated: “In other words, she could would [sic] four hours”.   There was a range of submissions by Counsel as to what was intended by this sentence.  It was common ground it was probably a misprint, but could have meant anything from “she could work full hours” to “she could work four hours (per day)”.  Counsel for the plaintiff urges me to disregard wholly his opinion about work capacity because of this misprint and urges me not to construe a meaning, in any event, which is disadvantageous to the plaintiff.  On balance, I am inclined to accept the submission of Counsel for the defendant that he intended to mean that the plaintiff could work full hours, but for reasons which I will express later, this will not disadvantage the plaintiff in the outcome of the action.

[5]Exhibit 1

Credit of the Plaintiff

16      I am urged to find that the plaintiff should be accepted as a credible and reliable witness whose evidence was not successfully attacked.  It is urged that her evidence on oath before the Court was frank and without inconsistencies or attempts by her to embellish her symptoms.  I accept this submission.  I do not necessarily accept the plaintiff’s opinion that she is totally incapacitated but I accept that this is her honest belief at present.

Permanency

17      It is not in contention that the plaintiff has a permanent impairment in terms of the issues before the Court but that the level of permanency is not such as to bring it within the required “range” as earlier postulated by Counsel.

Pain and Suffering Consequences

18      It is submitted by Counsel for the plaintiff that the consequences for the plaintiff can fairly be described, when judged by a comparison with other cases in the range of possible impairments or losses, as being more than significant or marked and as being at least very considerable.  It is submitted that this is so for the following reasons:

(a)   The plaintiff has damage to the L4-5 disc.  This is probably a rupture.  It is permanent in a women who is currently only twenty-seven years of age;

(b)   The plaintiff has required various different types of medication without substantial benefit, including Durogesic patches, Endone and Panadeine Forte;

(c)   The plaintiff has constant back pain with flare ups that are at times severe and that require:

§   her to lie down and use hot packs; and

§   substantially interfere with her ability to function;

(d)   The plaintiff has interference with her ability to sleep;

(e)   The plaintiff has restrictions on her ability to sit, stand, bend, lift or twist;

(f)   The plaintiff is restricted in her ability to care for her infant daughter, her husband and her home.

19      I accept this submission.  I also accept that the plaintiff does suffer from permanent daily pain, requiring frequent medication, and that this does in fact raise a real prospect of a “very considerable” consequence, as cited by Kyrou J in ACN 005 565 926 Pty Ltd v Snibson.[6]  Further, the plaintiff has sworn that she has only been able to bathe her infant once since the birth in May of this year because of back pain, and her husband has bathed the infant on every other occasion.

[6][2012] VSCA 31, at paragraph [71]

20      I find that the plaintiff is entitled to leave to proceed at common law for pain and suffering damages.

Loss of Earning Capacity

21 It is common ground the plaintiff was under twenty-six years of age at the time of suffering her injury and as such, the formula in s134AB(38)(f) of the Act does not apply.  This means the Court “may have regard to the probable income from personal exertion which the plaintiff would have earned but for the injury over the worker’s probable earning life.  This means the usual common law position prevails.”[7]

[7]See Accident Compensation (Common Law and Benefits) Bill, Second Reading Speech (23 May 2000); M Gould

22      Accordingly, in considering a loss of earning capacity and whether the plaintiff has a permanent loss of earning capacity of 40 per cent or more after the date of hearing and into the future,[8] I find:

[8]Section 134AB(e)(iii) of the Act

(i)    the “3 years before and 3 years post injury period” is irrelevant;

(ii) the issue of “suitable employment” is not relevant save for by reference to s134AB(38)(g) of the Act;

(iii)   A court can have regard to the availability of employment.  In this regard, I note that the plaintiff applied for a number of jobs and was not successful in obtaining an interview.

23      As to the principles applicable concerning loss of earning capacity, I was referred to the judgment of Heydon J (as he then was) in State of New South Wales v Moss,[9] as follows:

[9](2000) 54 NSWLR 536

(i)    

evidence of past economic loss is some, though not

conclusive, evidence of reduced earning capacity;[10]

[10]at paragraph [64]

(ii)   

it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what [she] is likely to

earn after it;[11]

[11]at paragraph [66]

(iii)   where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work [she] can perform, a court can, without
specific evidence as to what other persons with that kind of disability can
earn, make a judgment and assessment, on a percentage basis or
otherwise, of the value of the lost capacity;[12]

[12]at paragraph [69]

(iv)   the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss.  It is an issue of calculating the damage to a capacity to carry on various careers.  It is an exercise in estimation of possibilities, not proof of probabilities;[13]

[13]at paragraph [71]

(v)   the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum;[14]

(vi)   the task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.[15]

[14]at paragraph [72] and [74]

[15]at paragraph [87]

24      The following evidence concerning loss of earning capacity, in my view, is of relevance in determining whether the plaintiff has suffered a permanent 40 per cent loss:

(i)    at the time of suffering her injury, the plaintiff was engaged in heavy, repetitive work of a type that she cannot return to;

(ii)   prior to the relevant employment, the plaintiff had been engaged as a retail sales person for women’s clothes.  She had not pursued this line of employment thereafter as she felt she was “not very good at selling”;

(iii)   the plaintiff ceased schooling at the end of Year 10 and has no other formal training or tertiary education apart from a Certificate II and Certificate III qualification which she studied “in-house” whilst employed in the above retail business;

(iv)   all of the medical evidence supports the proposition that the plaintiff cannot resume her pre-injury employment or heavy, repetitive physical work;

(v)   the plaintiff attempted to perform modified duties with the defendant between September 2009 and April 2010.  During this period, the plaintiff was required to reduce her hours to the point where she was only working two hours per day, and was still forced to cease this work;

(vi)   at this point, the defendant accepted the plaintiff’s claim for total incapacity payments under the provisions of the Act.  Such payments had continued until approximately four weeks prior to hearing;[16]

[16]See Ansett Australia Ltd v Taylor & Anor [2006] VSCA 171

(vii)    Dr Clayton Thomas, the plaintiff’s treating rehabilitation physician, opined:

“Vocational limitations apply.  She is twenty five years old now.  She must be considered to be partially incapacitated.  Retraining is required.  She will need considerable support in order to be able to enter the workforce in a non-physical capacity.”[17]

[17]Exhibit E

(viii)   Professor Bittar, neurosurgeon, opined that the plaintiff has a capacity to work in a very sedentary position part time with regular breaks.  However, she would require retraining.  His opinion was that it would be unlikely that she would be able to work more than three to four hours per day, three days per week;[18]

[18]Exhibit F

(ix)   Associate Professor Buzzard’s opinion concerning work capacity is probably to the effect that the plaintiff is capable of full-time alternative duties.  As already indicated, he has not commented on what effect full-time work may have on her pain levels;

(x)   in relation to the plaintiff’s pre-injury employment, for the financial year ending 30 June 2010, the plaintiff earned $46,318.00 gross or an average of $735.00 net per week.  It is common ground that if she was still employed in her pre-injury position she would have earned $50,858.00 as at 30 June 2012;

(xi)   in relation to the Co-Work report dated 28 July 2011,[19] there are various jobs that have been suggested, including bank teller, pharmacy technician and sales consultant (gym and fitness industry). In contrast, the evidence of Ms Katrine Green, vocational psychologist,[20] and Ms Kaye Angel, human resources consultant, dated 14 August 2012,[21] are to the effect that the plaintiff’s pain levels and skill levels are such that any full-time employment would not be suitable.

(xii)    the defendant’s Co-Work report[22] at page 2 thereof, notes that since leaving work, the plaintiff had applied for the “required” ten jobs fortnightly and told Co-Work that her medical restrictions, depression, fatigue and pain prevent her from gaining employment.  It would be fair to state that any attempts at retraining or rehabilitation have not been successful to date in returning the plaintiff to any form of employment.

[19]Exhibit 1

[20]Exhibit H

[21]Exhibit 6

[22]Exhibit 1

Findings

25      It is common ground that the plaintiff has suffered a compensable discogenic back injury in the course of her employment with the defendant in September of 2009 which has produced pain and limitation of movement such that she has a permanent “light work back”.  The effect of all the evidence is that she will be permanently unable to return to her pre-injury employment requiring physical, repetitive work on a full-time basis.

26      The plaintiff’s evidence that she is not capable of any part-time work I find is honest, but unlikely to pertain on a permanent basis.  However, I find that her pain due to the injury will be permanent and that she is likely to be able to return to light physical work only in the future, but probably no more than that stated by Professor Bittar, to the effect of some twelve hours per week.  Twelve hours per week at $17.53 per hour for light bench-type work would amount to a figure in the order of $210.00 per week, which is well below the threshold required at law.

27      Accordingly, there will be leave for the plaintiff to issue proceedings at common law for loss of earning capacity.

28      I will hear the parties as to consequential orders.

- - -