Jayme v Jobwire Employment Services No. 1 Pty Ltd

[2009] VCC 1019

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-04095

ANGELO JAYME	Plaintiff
v
JOBWIRE EMPLOYMENT SERVICES NO. 1 PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	16 & 17 June 2009
DATE OF JUDGMENT:	14 August 2009
CASE MAY BE CITED AS:	Jayme v Jobwire Employment Services No. 1 Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1019

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages and pecuniary loss damages – back injury – plaintiff has capacity for suitable part-time work – calculation of earnings and assessment of hours that could be worked – whether a statutory test satisfied – factors to be considered

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Moore QC with	Zaparas Lawyers
Ms N. Wolski
For the Defendant	Mr J. Parrish SC	Lander & Rogers
with Mr I. Gourlay
HIS HONOUR:

General background

1          The plaintiff seeks leave to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. In so doing, he relies upon paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. The particular injury relied upon is one to the low back.

2          I will not set out here the numerous authority decisions of the Court of Appeal which are relevant. The specific incident of injury occurred on or about 23 October 2006. There was no argument but that the plaintiff bears the burden of proof in this matter.

3          Mr J. Moore QC with Ms N. Wolski of Counsel appeared on behalf of the plaintiff. Mr J. Parrish SC with Mr I. Gourlay of Counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The balance of the evidence was documentary in nature and was tendered by consent, which was a most successful and cost-effective manner in which to run an application such as this. In addition, counsel made thorough and very helpful submissions.

Factual background

4          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

5          On balance, I found the plaintiff to be a reasonably credible witness. A video was shown of him. As I observed from the Bench, in this video his movements appeared to be normal, but he did not engage in any activity that was particularly strenuous. On a few occasions he appeared to make reasonable bends without great difficulty. However, the overall impression was of someone behaving in a normal fashion whilst going about his daily activities of walking, driving and the like but engaging in no particularly stressful or demanding occupational activity. I could not say that he demonstrated the “slow guarded gait” noted by his treating surgeon, Mr de la Harpe, when reviewing the plaintiff on 5 June 2009. There was also no apparent restriction in back movements. I should add that the lengthy videos were taken on 15 October 2008 and 10 April 2009, and a very brief video fleetingly showing the plaintiff bending in order to fill a tyre at a service station was taken on 10 June 2009.

6          My overall impression is that the video material did no fatal damage to the plaintiff’s application, but did demonstrate that his range of movements may be greater than has sometimes been observed at medical examinations and that he goes about his everyday, non-strenuous activities, such as driving, walking, shopping and the like in a normal fashion.

7          Mr Parrish SC was also critical of the plaintiff’s credit insofar as he allegedly tended to minimise the significance of a back injury previously suffered by him in 2004. Again, there may be some force in this but I do not regard it as a major blow to the plaintiff’s application. There may indeed have been a tendency on his part to downplay the dimensions of the previous injury when describing events to some medical examiners, but the evidence does not establish that such prior injury predisposed the plaintiff to the subject injury or otherwise contributed to the consequences of it. As with the video, the minimising of the significance of the prior injury may be something which causes me to view the plaintiff’s overall evidence with caution, but does not entirely destroy his credit.

8          In summary, I am prepared to accept much of the evidence given by the plaintiff, whether it be in affidavit form or in oral evidence, but I do have some reservations as to whether the level of symptomology that he has sometimes displayed represents the true picture.

9          On balance, the overall impression made by him was a favourable one even if the caution referred to above does have to be exercised.

(ii) The plaintiff’s background, training and pre-injury employment

10        The plaintiff is thirty-two years of age, having been born in the Philippines on 4 September 1976. He came to Australia in 1987. His schooling ended when he left during Year 11.

11        The plaintiff originally worked as an assistant plasterer and then as a labourer. He also performed casual factory work, mixed with periods of unemployment. He worked as a cleaner at a meatworks for some four years. He has also worked in a metal foundry as a labourer and a supervisor and also as a stock picker with Australia Post.

12        The defendant was a labour hire company. In early 2006 the plaintiff commenced working for it, and was sent to TNT where he worked in a warehouse stock picking and packing. I accept that this work involved handling parts, some of which were quite heavy, pushing trolleys, reaching for and lifting parts and duties which, in general terms, involved physical activity and exertion.

13        Thus, as at the time of sustaining injury on 23 October 2006, the plaintiff was a young man of limited education who had primarily been involved in physical work and who had no particular qualifications.

(iii)	The injury
(a)	The state of the plaintiff’s lower back prior to the injury

14        The plaintiff had previously suffered an injury to the back in 2004 whilst employed by Australia Post when hit by a stone thrown up by a ride-on mower. It would seem that the plaintiff was conveyed to the Dandenong Hospital by ambulance and was off work for some two or three days. He saw a chiropractor who arranged for x-rays of his lower back and also continued to see that chiropractor weekly for approximately 12 months. In cross- examination, the plaintiff said that he was getting pain in the back over that period “on and off”, but claimed that it did not prevent him from going to work, whilst also describing his condition as “severely restrictive”. The chiropractic treatment over 12 months was needed to maintain his back.

15        I was not totally persuaded by the plaintiff’s evidence in relation to his reasons for stating in his claim form in respect of the subject injury that he had not had any previous pain or disability in the area of his present injury or condition. His explanation that he had answered in this fashion because he did not think the previous injury was relevant as he had continued to work full-time was not convincing. This is particularly so when the histories given to various medical examiners are also considered. To Mr David Brownbill he gave a history of the incident with the stone, but also said that he was off work for a couple of days following which he made a full recovery and there was no recurrence of pain. The plaintiff stated in evidence that he did not tell Mr Brownbill of ongoing pain over 12 months because he did not think that it was relevant. Similarly, he claimed that he had not told Mr Charles Flanc of any prior history of back pain because he did not think it was relevant. When seen by Mr Gerald Moran, he denied any history of lower back pain prior to the subject injury, and his explanation as to why he did this was certainly not persuasive.

16        I am quite satisfied that the plaintiff did suffer a lower back injury in 2004 and that he had ongoing symptoms for which he required weekly chiropractic treatment over the next 12 months. His evidence as to why he failed to disclose this, or disclose it in its entirety, on the claim form or to the medical examiners referred to above was not impressive. However, whether there is any link by way of causation or aggravation between the 2004 injury and the subject injury is another matter. The evidence does not establish that the 2004 injury played any part in the consequences suffered by the plaintiff following the 2006 incident. The relevance of the 2004 injury is confined to the issue of the plaintiff’s credibility.

(b) The injury of 23 October 2006

17        The injury to the lower back suffered on this day occurred when the plaintiff was stock picking at TNT. The plaintiff was bending to pick up two king pins from a crate on a floor under a shelf, each king pin weighing approximately eight to 10 kilograms, and whilst doing this felt a pulling sensation in his back. His back became painful, and he was taken to the Dandenong Hospital where he was given medication and put off work for one week. He commenced physiotherapy, and was also seen by a general practitioner, Dr Ng. He was given further time off work.

18        On 2 November 2006 a CT scan of the plaintiff’s lumbar spine was carried out. This revealed that, at the L5/S1 level, there was a posterocentral disc protrusion which was contacting the cal sac. There was also contact made with the anterior margin of the origin of the right S1 nerve root.

19        It would seem that the plaintiff returned to work at TNT for a short period, apparently still being placed there by the defendant. His belief was that he worked 12 hours per week, this being spread over three days. He then worked back at the office of the defendant performing a couple of hours work per day, two days per week. He denied that this built up to three to four hours per day. He was performing administrative duties. That employment came to an end on 22 March 2007 as the defendant was no longer in a position to provide such duties. The defendant subsequently went out of existence, apparently having gone into liquidation shortly after the termination of the plaintiff’s services. The plaintiff has not been in paid employment since.

20        The plaintiff’s condition did not improve and Dr Ng referred him to Mr David de la Harpe, orthopaedic surgeon, who ultimately saw the plaintiff on 14 May 2007. At that time he was undergoing weekly physiotherapy and taking various medication including Panadeine Forte. Apparently Mr de la Harpe had organised for an MRI examination of the plaintiff’s lumbar spine before seeing him, and this was carried out on 23 March 2007. The conclusion of the radiologist was that the plaintiff had disc degeneration at L4/5 and L5/S1 levels with asymmetric generalised disc bulges, worse on the right than the left, but without definite nerve root displacement.

21        Mr de la Harpe diagnosed a mechanical back injury in a pre-existing situation of some degenerative disease, and believed that the condition was an aggravation of that pre-existing condition. He expressed the view that the plaintiff had no fitness for work and that his fitness for alternative duties was extremely limited at that time. He did not believe that surgery was necessary, but that the plaintiff should continue with physiotherapy which should be extended to a Pilates-type program, hydrotherapy and possibly a gymnasium program.

22        The plaintiff continued with physiotherapy, and also undertook a gymnasium and hydrotherapy program, as well as walking for exercise. Mr de la Harpe, on 14 July 2008, took a history of these matters upon review. The plaintiff had continued taking Panadeine Forte. Mr de la Harpe noted that the plaintiff had difficulty getting out of the examination chair and had a tentative slow waddling gait. Mr de la Harpe could find no neurological abnormality in the lower limbs. He again did not think that surgery was required, but that conservative measures should continue to be taken. Whilst there was no evidence of neurocompression, Mr de la Harpe was of the view that the plaintiff remained significantly incapacitated because of degenerative and mechanical back pain.

23        The plaintiff continued to see Dr Ng and to take medication and to exercise. He was reviewed again by Mr de la Harpe on 5 June 2009. By this time the plaintiff was doing physiotherapy only once a week, was doing a stretching exercise program, and was also using a TENS machine and using heat packs. Mr de la Harpe noted a slow guarded gait and restriction of movement of the lumbar spine limited by stiffness and pain, but with no neurological abnormality in the lower limbs. He was happy for the plaintiff to continue with these conservative treatments and that he was significantly incapacitated with low back pain. His view was that the plaintiff remained incapacitated for a return to any form of physical work including his pre-injury work, and raised the possibility of the plaintiff participating in a retraining program into some form of sedentary work, whilst noting that prolonged sitting for extended periods of time might create problems

24        The plaintiff continued to see Dr Ng approximately once a month, and received physiotherapy twice a week. He continues to take Panadeine Forte, on average more than four tablets per day.

25        The plaintiff has been seen by various expert examiners for medico-legal purposes. He has been seen twice by Mr David Brownbill, consultant neurosurgeon. Mr Brownbill diagnosed lumbar intervertebral disc derangement at two levels, but did not feel that any specific treatment was indicated from a neurological point of view. In his more recent report of 20 January 2009, Mr Brownbill stated that probably the plaintiff aggravated pre- existing asymptomatic lumbar spinal degenerative changes in the incident of 23 October 2006 and he believed that, in the future, the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting. He felt that the plaintiff may well be able to return to some part-time work if he was able to use a computer.

26        Mr Charles Flanc, general surgeon, examined the plaintiff for his solicitors on 12 November 2008. Mr Flanc diagnosed significant aggravation of pre- existing disc degeneration of the lumbosacral spine. He also felt that there were non-organic factors present, referring to the fact that the plaintiff demonstrated very severe limitation of spinal movement and stiffness of the legs. He noted upon examination that reflexes were difficult to illicit because the plaintiff held his knees extremely stiffly, but ankle jerks were present and equal. Sensation in the legs was normal. Notwithstanding any psychological component, Mr Flanc believed that the plaintiff had a significant physical condition (namely, the aggravation previously described) and this was materially contributing to his pain and disability. Whilst he expressed the opinion that the prognosis was guarded, he doubted whether surgery would be required in the long-term. Mr Flanc was of the view that the plaintiff was not fit for his pre-injury duties but had a theoretical capacity for light part-time duties for no more than three hours per day. Indeed, he expressed the view that the plaintiff, realistically, had no current work capacity “at least in the medium term”.

27        Professor Afif Hadj, general surgeon, reviewed the plaintiff at the request of his solicitors on 17 November 2008. He also diagnosed disc lesions at L4/5 and L5/S1, and favoured continuing conservative treatment. He did not expect any significant changes in the plaintiff’s condition in the foreseeable future. Professor Hadj did not believe that the plaintiff was fit for his pre-injury employment but believed that he was capable of performing work where he did not have to do any lifting of more than five kilograms or performing activities that required repetitive bending of the back. He believed that sedentary work was an option, although initially the plaintiff would not be able to work more than four hours a day, three days per week, and preferably on alternate days. He also felt that the plaintiff was likely to have problems with his back for an indefinite period of time.

28        The plaintiff was seen by Professor Bruce Love, orthopaedic surgeon, this examination also being organised by the plaintiff’s solicitors. The examination of Professor Love revealed a very restricted range of movements of the lumbar spine but, interestingly, no restriction of straight leg raising which contrasts, for example, with the findings of Mr Flanc and Professor Hadj. Professor Love expressed no clear diagnosis as such, but did state that the plaintiff’s prognosis for a return to physical work was poor and he could not conceive of the plaintiff making any significant improvement in the foreseeable future.

29        Various experts have also examined the plaintiff on behalf of the defendant. Mr Brian Davie, consultant orthopaedic surgeon, reported on 27 August 2007. He diagnosed a lower lumbar disc injury, probably at L5/S1, to which employment had materially contributed. He believed that the plaintiff at that time had a current work capacity, but would not be able to do heavy lifting, bending and twisting. He opined that the plaintiff could work in such occupations as a supervisor, production recording clerk, purchasing officer and the like. He regarded conservative treatment as being reasonable until the plaintiff found suitable lighter work.

30        Mr David Conroy, surgeon, examined the plaintiff on 18 December 2007. He diagnosed an incompletely resolved lower lumbar intervertebral disc injury. Otherwise his report is directed more towards a Whole Person Impairment.

31        Dr Malcolm Brown, occupational physician, examined the plaintiff on 30 June 2008, and provided a supplementary letter of 3 November 2008. He noted that the plaintiff walked with a restricted gait and that there were various restrictions on the plaintiff’s movements, including restricted straight leg raising. He diagnosed a disc protrusion at L5/S1, with later resolution as revealed in the MRI. He thought that there would be significant improvement, although the plaintiff may well have recurrent trouble bending over the long term. His supplementary report contained the opinion that the plaintiff did not have the capacity to engage in activities such as freight handling or forklift driving, but had the capacity to do clerical and supervisory jobs.

32        Mr Gerald Moran, orthopaedic surgeon, examined the plaintiff on 18 September 2008. He diagnosed aggravation of L4/5 and L5/S1 disc degeneration, this being contributed to by the relevant incident. He believed that the plaintiff had a current work capacity, but would never be fit for his pre- injury duties. Rather, he saw the plaintiff as being permanently fit only for light duty employment which did not involve repeated bending and/or heavy lifting and where there was some flexibility in relation to sitting or standing. He did not see the need for ongoing physiotherapy, believing that a daily exercise program would suffice.

33        However it be described – whether it be mechanical back pain, aggravation of pre-existing lumbar spine disease, lumbar intervertebral disc derangement, disc lesions or the like – I am quite satisfied that the plaintiff suffered a back injury involving his lumbosacral spine and involving discs at the L4/5 and L5/S1 levels. The overwhelming weight of medical evidence seems to me to support this proposition. I am also of the opinion that the subject incident continues to contribute in a significant fashion to the plaintiff’s symptoms and to the consequences of the injury and impairment suffered. I might add that I agree with the submission of Mr Parrish that the evidence does not point to what could be described as a general aggravation, course of employment, type of injury, and that what occurred on 23 October 2006 is the only proven basis for the application.

34        Mr Parrish quite fairly conceded that the plaintiff had suffered an injury involving the lumbar discs. In his opening remarks, when asked concerning the issues in the case, he very properly stated that, for the purposes of these proceedings, there is no issue but that there was an incident of injury on 23 October 2006, and secondly, to use his words, “We do not suggest other than there is a degree of discal involvement, we would submit most probably, although I don’t think much turns on the label. Most probably an aggravation of pre-existing degeneration”.

35        Thus, there is a degree of uniformity in the various views as to the nature of the plaintiff’s injury. Of course, whilst acknowledging some type of discal injury, Mr Parish was in no way conceding any of the alleged consequences. Indeed, he drew my attention to the radiology and argued that there has been some degree of resorption of the disc protrusion when the CT scan of 2 November 2006 is compared with the MRI scan of 23 March 2007.

36        In any event, as previously stated I am satisfied that the plaintiff suffered a back injury which was discal in nature and which continues to contribute to his symptoms and consequences.

(c) Psychological and psychiatric consequences

37        Section 134AB(38)(h) requires that such consequences only be taken into account in applications involving paragraph (c) of the definition of serious injury. Accordingly, they shall not be taken into account in the present case. I appreciate that, in January 2008, the plaintiff was examined by Dr David Weissman, consultant psychiatrist, who diagnosed an Adjustment Disorder with depressed and anxious mood, but I am far from convinced that psychological or psychiatric factors play any significant role in the plaintiff’s impairment or consequences of injury. Further, Mr Parish effectively conceded that this what not a “disentanglement” case, and it was generally agreed that the report of Dr Weissman could be left to one side. Clearly, his injury and unemployment have affected him emotionally, but I note that he does not see a psychiatrist or psychologist and does not take anti-depressant medication. I appreciate that Mr Flanc is of the view that some non-organic factors exist in the plaintiff’s presentation, but he has also expressed the view that, notwithstanding any psychological component, he considered that the plaintiff has a significant physical condition, being that which has been referred to above, which materially contributes to the plaintiff’s pain and disability. Such psychological or psychiatric consequences as do exist shall not be taken into account but, as stated, I do not consider them to be of any major significance. The presentation of the plaintiff in court would tend to confirm this.

(d) Permanence

38        I am satisfied that the plaintiff’s back condition has stabilised and that the restrictions placed upon his activities will persist for the foreseeable future. Mr Moran, examining on behalf of the defendant in September 2008, stated that the plaintiff is permanently fit only for light duty employment and will never be fit for his pre-injury duties. Mr Flanc, examining in November 2008, expressed the opinion that the prognosis must be guarded but it is likely that the plaintiff will continue to suffer from lower back pain in the longer term. Mr Brownbill has opined that, in the future, the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting, and anticipated that the plaintiff’s pain will continue in a fluctuating manner indefinitely. Professor Hadj, also reporting in November 2008, stated the plaintiff has a rather poor prognosis and is likely to have problems with his back for an indefinite period of time. Mr Love, in March of this year, expressed the view that he could not conceive of the plaintiff making any significant improvement in the foreseeable future. Despite the opinion of Mr Flanc that the plaintiff’s condition has not quite stabilised, these opinions persuade me that the injury suffered by the plaintiff, and its consequences, are permanent within the meaning of the Act and will persist for the foreseeable future.

(iv) The plaintiff’s employment, rehabilitation and retraining since the injury

39        I have previously referred to the plaintiff’s return to work with the defendant on part-time light duties between 20 November 2006 and 22 March 2007, and to the fact that he has not been in employment since.

40        In 2008, the plaintiff undertook an introductory course in relation to computers and in relation to the Excel program. This was arranged by the defendant’s insurer. He did not complete the Excel course. He stated that he was given a certificate in relation to it, but did not understand it and in fact did not complete the work required. The plaintiff also gave evidence that his participation in these courses was at his own initiative and urgings, as he wished to undergo some retraining. It should be said that he possesses a licence to drive a forklift, and indeed performed some work of this nature with the defendant. However, it is not suggested that work as a forklift driver is something that is now a viable employment option for him. It would seem that the plaintiff also possesses a certificate in occupational health and safety and a Certificate II in relation to the St John’s first aid course. Again, these would appear to be qualifications which he possessed prior to sustaining injury.

41        It was not argued that the plaintiff has failed to participate in appropriate rehabilitation or retraining programs. No reliance of any significance was placed upon s.134AB(38)(g). The plaintiff has applied for numerous positions, such applications perhaps numbering in the hundreds, and it seems to me that he has a proper attitude towards rehabilitation, retraining and a return to the workforce.

42        As stated, the plaintiff has sought work, having applied for positions which involve light storeman-type duties and perhaps with a clerical aspect. Essentially he described the sort of jobs that he had sought as being “Generally the stuff that I’ve already done before”. Basically he has applied for light duties positions, and generally has applied for light duties “maybe four hours a day…two to three times a week, part-time”. When he reveals that he has a back injury, prospective employers seem to lose interest. Centrelink has referred him to CIS and to an employment agency called MatchWorks, which the plaintiff described as a disability employment agency. It is in more recent times that these job-seeking activities have taken place.

Ruling
(i) Loss of earning capacity
43	Whilst the plaintiff has not been in employment since April 2007, I am of the view that he does have some capacity for suitable light work. The real issue in this regard seems to me to be not whether the plaintiff has a capacity for work, but the extent of that capacity and the income which it would produce. In other words, an important question to be considered is whether the plaintiff possesses the capacity to engage in suitable light work on a full-time basis, or is that capacity restricted to part-time work? If the latter proposition is correct, how many hours of part-time work per week can he perform and what would he be paid for it?
44	I have arrived at the conclusion that the plaintiff has a capacity for part-time work after bearing in mind his evidence and the bulk of the medical material. I am not persuaded that he has the capacity to engage in full-time employment. He continues to receive certificates from either Dr Ng or from his physiotherapist, Mr Rekas, and largely from the latter, clearing him for work four hours per day, with the provision that he wears a back brace; with lifting restrictions; and also with restrictions in relation to prolonged sitting or standing.
45	In addition to the opinion of Mr Rekas, assistance can be gained from looking at the more recent, and thus generally more helpful, medical reports. Indeed, the views contained in those reports do not differ markedly from the opinion of Mr Rekas.
46	Mr Brownbill, on examining the plaintiff in January of this year, expressed the opinion that the plaintiff may be able to return to some part-time work if he is able to use a computer, with the number of hours for which he could so work being dictated by his responses to such activity.
47	Mr Flanc, in November 2008, stated that the plaintiff had no realistic current work capacity in the medium term but a theoretical capacity for light part-time duties of no more than three hours per day.
48	Professor Hadj, also examining in November 2008, expressed the view that the plaintiff would be capable of performing very limited activities, avoiding lifting anything more than five kilograms or activities that require repetitive bending of the back, such work being of a sedentary nature with the ability to change positions at will. Professor Hadj expressed the opinion that the plaintiff would not be able to perform such work for more than four hours per day, three days per week, and preferably on alternate days “in the first instance”. He expressed no view as to when the plaintiff might be able to increase such hours, but did state that the prognosis was “rather poor”.
49	The most recent report of Mr de la Harpe of June 2009 contains the opinion that the plaintiff remains incapacitated for a return to any form of physical work but could participate in a retraining program into some form of sedentary work only. However, Mr de la Harpe was also of the view that the plaintiff has limited sitting tolerance and that “if he was to retrain into a job involving more computer skills he might not be able to tolerate sitting for extended periods of time”.
50	Mr Moran, examining for the defendant in September 2008, simply stated that the plaintiff was permanently fit only for light duty employment not involving repeated bending and/or heavy lifting and where he has the flexibility to sit or stand as pain dictates. Mr Moran made no specific comment as to the hours to be worked.
51	Dr Brown, reporting in November 2008, believed that the plaintiff had the capacity to perform some of the jobs listed in the vocational assessment report (supervisor, production recording clerk and the like) provided that the plaintiff was able to sit or stand regularly “throughout the work shift”, which phraseology I take to indicate a capacity for full-time work.
52	On balance, it seems to me that the weight of the evidence favours the proposition that the plaintiff has a capacity for part-time work only. This includes the opinion of the treating physiotherapist, Mr Rekas, who continues to see the plaintiff on a weekly basis and has seen him throughout. When the opinions of the plaintiff’s treating specialist, Mr de la Harpe, and Mr Brownbill, consultant neurosurgeon, are also taken into account along with the other opinions referred to above, the conclusion seems to me to be almost irresistible that it is part-time work to which the plaintiff’s employment capacity is limited. Of course, there are then further restrictions to be observed.
53	I might add that I am not of the view that the plaintiff has no realistic capacity for employment. I accept that he is eager to obtain some type of part-time employment, that he is pursuing such work, and that he may well obtain it. I do not accept that his capacity to earn any income has been destroyed permanently.
54	I turn now to the number of hours which the plaintiff can work each week. A considerable doubt must exist concerning this, bearing in mind the qualifications expressed by people such as Mr Brownbill and Mr Flanc, and the restrictions otherwise placed upon the plaintiff’s activities. It is also to be remembered, as pointed out by Mr Moore, that, whilst the plaintiff may have been certified as being fit to perform restricted duties for 20 hours per week after the injury and whilst still being employed by the defendant, he did not in fact reach that total. It may also be that he is only fit to work alternate days. However, I am prepared to accept that he has the capacity to work four hours per day subject to the restrictions imposed upon him in the certificates provided by Mr Rekas. In arriving at this conclusion, I have also borne in mind the video material which, whilst not showing the plaintiff engaging in activities of a particularly strenuous nature, reveals no great abnormality in his movements. It is to be remembered that the plaintiff described his movements as seen on the video as being those of “an average day”. I also make allowance for the fact that some limited damage was done to his credit in respect of the amount of information he passed on about the 2004 incident. Basically, however, his presentation has been that of one eager to perform some kind of work. Weighing up all these matter, I accept that the plaintiff could work a maximum of 20 hours per week in suitable light duties, but, bearing in mind that the possibility exists that working alternate days might be more appropriate, I do consider this to be a maximum figure.
55	The next matter for deliberation, bearing in mind the requirements of s.134AB(38)(e) and (f), relates to the comparison between “without injury” and “after injury” earnings, to employ the terminology used in Barwon Spinners v Podolak [2005] VSCA 33.
56	In the present case, it seems to me that the requisite comparison could possibly be carried out in a way that is perhaps simpler than occurs in other cases and may achieve the same mathematical result. That is because I am of the view that the type of part-time work which the plaintiff has the capacity to perform will be work of the type and at a salary level of that carried out by him at the TNT warehouse, but with restrictions. This may be the type of work that he was carrying out at that warehouse after the injury, or back at the defendant’s office. I should add that neither of these ventures were particularly successful, but it is light warehouse-type work with possibly some clerical element (despite the plaintiff’s lack of training) that may be suitable for the plaintiff.
57	If that be so, the plaintiff will simply be working part-time in the same area of endeavour where he previously worked full-time. In other words, he will be doing the same job for a maximum of 20 hours per week instead of on a full- time basis. He has sworn that his hours of employment prior to injury were from 10am to 6pm daily with some five to eight hours overtime a week. There was no real challenge to this proposition, so it would seem that the plaintiff was working, on average, a minimum of 45 hours per week. Thus, if he can now only work a maximum of 20 hours per week, and assuming that light storeman-type duties are available, the drop in the number of the hours per week which the plaintiff is capable of working exceeds 55 per cent. Even if overtime were excluded, the decrease would exceed 40 per cent.
58	Of course, that is not the method of calculation set out in s.134AB(38)(e) and (f). If that method were to be followed more precisely, the following would be the situation. The injury occurred on 23 October 2006. Currently, we are still within the six year window prescribed by the Act in relation to “without injury” earnings. In the full financial year prior to the plaintiff suffering the injury, his gross earnings were $32,075. His earnings had fluctuated somewhat in the preceding years, but during the 2005/06 year he had worked for Australia Post picking stock and for the defendant stock picking and packing. Whilst it is not entirely clear, there does not seem to have been any great gap between the cessation of employment with Australia Post and commencement with the defendant. On the plaintiff’s claim form, his date of commencement of employment with the defendant is shown as 13 April 2006. The defendant has sworn that he was in fact earning $800 gross per week with the defendant, but there is no tax material available in this regard. I note from the claim forms which are in evidence that the plaintiff alleges that he was grossing $846 per week at the time of the injury for his ordinary working hours, with no allegation of overtime earnings, whilst the defendant alleges that he was earning $716.33 per week with an overtime allowance of $28.92, a total of $745.25 per week. In the absence of taxation material, where the truth lies is not clear. The plaintiff’s hourly rate of pay is shown on his claim form as being $22.50 and on the defendant’s claim form as being $22.25. The plaintiff’s claim form indicates that he worked 38 hours per week, whereas the defendant’s claim form indicates that he worked 32 hours per week (not including the overtime). I might add that the plaintiff has ticked the box indicating that he worked overtime, but the details have not been filled in.
59	Leaving to one side the question of overtime, the plaintiff has sworn that his working hours were from 10am to 6pm. The defendant has placed in evidence an assessment of the plaintiff and his claim by Messrs Donnelly Ayres, in which it is stated that the plaintiff’s hours of work were from 10am to 6pm, Monday to Friday. A vocational assessment undertaken by Australian Vocational Link, this being done for the plaintiff’s solicitors, includes a history that the plaintiff worked in excess of 38 hours a week and often worked more than 40 hours. Thus, there is every indication that the plaintiff worked at least 38 hours per week. If he did this, and taking the defendant’s assertion that the hourly rate was $22.25, his weekly wage would have been $845.50. This is very close to the figure contained on his claim form and is a figure which I accept. For the purposes of this exercise, I am not taking into account overtime given the confusion that exists concerning it. Expressed as an annual rate, this would be $43,966. It is that figure which I select as being the amount of “without injury” earnings for the purposes of this exercise, and I would point out that in so selecting it I am making no allowance for CPI increases since the date of injury.
60	Turning then to the “after injury” earning figure, if one selected the slightly higher hourly rate of income shown on the plaintiff’s claim form, and in fact allowed three CPI increases of three per cent, the end result would be $24.59. Allowing this for 20 hours per week would produce a total of $419.80, which, annualised is $25,574. That represents a drop in income of just under 42 per cent. Thus, even allowing no indexation in respect of “without injury” earnings but applying CPI increases to “after injury” earnings, the plaintiff satisfies the statutory test.
61	Of course, the defendant has argued that the plaintiff is capable of engaging in employment which produces even higher income and which might cause him to fail in relation to the required comparison. These figures are based upon a report from an organisation called “Healthe Work”. In this regard I would point out the following. Firstly, for example, in relation to the first option identified by Healthe Work, namely that of a production clerk, the average gross weekly wage is described as $1,026, but the actual job “advertisement” or “vacancy details” to employ the terminology used in the report, refers to an “excellent salary” of $36,000-$40,000, a figure less than the plaintiff’s “without injury” earnings and one which would cause his drop in income to be even greater. Further, I would point out that the “ideal candidate” for that position is required to come from either a pharmaceutical or manufacturing background with solid administration experience and experience using Excel. Possession of accurate data entry skills is also described as essential. The plaintiff does not seem to me to meet these requirements.
62	Secondly, despatch and receiving clerks are said to earn an average weekly income of $1,037, but the attached job advertisement or vacancy details does not specify a salary. The successful candidate would be required to possess a strong background in customer service and administration, and whether the plaintiff meets those requirements would have to be considered as extremely doubtful. The next option, customer service, contains vacancy details for a position in Mount Waverley at $35,000 per annum, which would cause the plaintiff even greater loss.
63	The average gross income for a warehouse administrator is said to $996. The accompanying synopsis of a job advertisement or vacancy details does not make sense. It commences: “Our Mr Jayme, Australian owned and operated is a well regarded and long established manufacturer”. The salary package is described as “$50-55K”, but there is no indication as to the breakdown of the package into components such as superannuation and the like. There is no reference whatsoever to what qualifications, work experience and the like are required. The whole pseudo-advertisement or summation of vacancy details is unsatisfactory.
64	Product examiners are said to average $938 per week with no minimal education required and basic English competency. There are no accompanying “advertisements” or vacancy details. The final option is said to be that of a weighbridge operator, which position is stated to attract an average salary of $920 per week. Again, somewhat surprisingly, no minimum education is said to be required and only basic English competency is needed. The accompanying “advertisement” makes it clear that the job under consideration is only for two months and involves “a high amount of data administration” including the process of documentation and the updating of the company database along with the administration of stock movements. Sound computer skills are said to be required along with reliability. Again, it does not seem to me that the plaintiff would satisfy these criteria, despite the earlier assertion that no minimal education is required and only basic English competency is needed.
65	I would also make the following general observations concerning these suggested employment options which, one might think somewhat surprisingly, allegedly attract a higher average income than the amount which the plaintiff was earning prior to his being injured and without him being subject to any restrictions. Of course, somewhat mysteriously, two of the attached “advertisements” or vacancy details in fact indicate a salary range well-below what is stated to be the average. In any event, firstly none make any reference to part-time work. The “advertised” positions of weighbridge operator and customer service/dispatch clerk are both temporary positions, but there is no suggestion that they are part-time. Secondly, I am generally not impressed by the Healthe Work presentation which seems to contain contradictions and, in the advertisements or vacancy details, missing words, errors and, at times, a questionable lack of detail. My third general observation is that the plaintiff does not seem to me to possess the requisite skills, experience and/or physical capacity to perform the employment options suggested. Part-time work of the type that he was performing with the defendant prior to his dismissal seems to me to be the only realistic and suitable employment opportunity.
66	I am also satisfied that this will remain the case for the foreseeable future. One’s instinct might lead one to say that this young man who seems eager to return to the workforce will, at some time, be able so to do on a full-time basis, but instinct is not evidence. As I have already discussed, the restrictions and consequences of injury from which the plaintiff suffers are permanent within the meaning of the Act in that they will persist for the foreseeable future. Given his background, education and skills, and given those physical restrictions, his capacity to engage in no more than part-time work of the type described and for the hours mentioned will also persist for the foreseeable future.
67	In summary, whether one takes what could be described as the “unofficial shortcut” by comparing hours worked prior to injury with hours able to be worked after the injury, bearing in mind that the six year window is still open and that the plaintiff is only capable of working in much the same area of endeavour albeit on lighter duties, or whether one follows the more lengthy process of ascertaining “without injury” earnings and “after injury” earnings and making the requisite comparison, the result is the same. The plaintiff has established that he has suffered a loss of income in excess of 40 per cent as a result of the injury, and this loss will continue for the foreseeable future.
68	As the plaintiff has satisfied the criteria for s.134AB(38)(e) and (f), it need hardly be said that he has also satisfied the “very considerable” test in relation to pecuniary loss. He has already suffered a large loss of income, and the loss that he will continue to suffer for the foreseeable future could clearly be described as being at least very considerable and more than significant or marked.
(ii) Pain and suffering damages
69	The plaintiff having satisfied me in relation to leave in respect of loss of earning capacity, it seems to me that he has also satisfied the test in relation to pain and suffering damages. There have been a number of decisions of this Court to the effect that, with the test in relation to pecuniary loss damages met, leave in relation to pain and suffering damages is virtually automatically given. The principle of comity between co-ordinate divisions of the same jurisdiction would lead me to adopt a similar approach unless I was convinced that it was wrong, which I am not. Furthermore, the recent decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 endorses this approach. I would refer to paragraphs 62 and following of the joint Judgment of Redlich JA and Beach AJA. In any event, I would be quite satisfied that the plaintiff has satisfied the statutory test in relation to pain and suffering damages and Mr Parrish, very fairly, effectively had nothing to say to the contrary.

Conclusion

70        The plaintiff is successful. He has satisfied the statutory requirements and discharged the burden of proof. Leave is given to him to bring proceedings in relation to both pain and suffering damages and pecuniary loss damages.