Joksimovic v Greg Sewell Forgings Pty Ltd
[2012] VCC 1789
•12 December 2012
| 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-11-04592
| SLOBODAN JOKSIMOVIC | Plaintiff |
| v | |
| GREG SEWELL FORGINGS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 November 2012 | |
DATE OF JUDGMENT: | 12 December 2012 | |
CASE MAY BE CITED AS: | Joksimovic v Greg Sewell Forgings Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1789 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and pecuniary loss consequences – injury to the low back – whether the consequences of such injury are “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33
Judgment: Leave granted to the plaintiff to commence an action claiming damages for pain and suffering damages only. Application in relation to loss of earning capacity damages dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley | Hymans Solicitors |
| For the Defendants | Mr K Galpin | Wisewould Mahony Lawyers |
HIS HONOUR:
1 Slobodan Joksimovic alleges that he suffered injuries to his low back in the course of his employment with the first defendant. He seeks the leave of this Court to issue proceedings to recover pain and suffering and pecuniary loss damages in respect of those injuries.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied on the balance of probabilities that the injury suffered by him is a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as “permanent serious impairment or loss of a body function”.
4 The body function relied upon in this application is that of Mr Joksimovic’s low back.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33 at paragraphs [18] to [19]
6 The term “serious” is to be satisfied by reference to the consequences to Mr Joksimovic of any impairment or loss of function with respect to pain and suffering and pecuniary loss, when judged by comparison with other cases in the range of possible impairments or losses of a body function.[3]
[3]Section 134AB(38)(b)
7 The impairment or loss of a body function shall not be held to be serious for the purposes of this application unless the pain and suffering or pecuniary loss consequences are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked and as being at least very considerable.[4]
[4]Section 134AB(38)(c)
8 With respect to pecuniary loss damages, leave is not to be granted by the Court on the basis that Mr Joksimovic has suffered the loss of earning capacity required by s134AB (38) (b) unless, in he establishes (in addition to the requirements of s134AB (38) (c)) that, at the date of hearing of the application, he has suffered a loss of earning capacity of 40 per cent or more. Such loss of earning capacity is to be measured by comparing his gross income from personal exertion:
(a)which he is capable of earning in suitable employment as at the date of the hearing; and
(b)which he was earning or was capable of earning or would have earned, or would have been capable of earning during that part of the period within three years before or after the injury as most fairly reflects his earning capacity had the injury not occurred.[5]
[5]Section 134AB(38)(e)(f)
9 Mr Joksimovic will not establish the loss of earning capacity required by s134AB(38)(b) where he has or would have, after rehabilitation or training, and taking into account his capacity for suitable employment and the reasonableness of his attempts to participate in rehabilitation or retraining, a capacity for employment, including alternative employment, which, if exercised, would result in him earning more than 60 per cent of gross income from personal exertion as determined in accordance with s134AB(38)(f) had the injury not occurred.[6]
[6]Section 134AB(38)(g)
10 Mr Joksimovic submits that the pain and suffering and pecuniary loss consequences of his injuries can fairly be described as being more than significant or marked and at least very considerable. The defendants deny this is so.
11 The matters in issue and to be determined in this application are:
(a)What injury has Mr Joksimovic suffered to his low back?
(b)Can the pain and suffering or loss of earning capacity consequences of such injury be fairly described as being “at least very considerable”?
(c)Has Mr Joksimovic suffered a loss of earning capacity of 40 per cent or more when measured in accordance with s134AB(38)(e), (f) and (g) of the Act?
Background and Development of Injury
12 Mr Joksimovic is aged sixty-five. He was born in Serbia. He had eight years of schooling in that country. In 1970 he migrated to Australia.
13 He obtained employment as a steelmaker with BHP at Port Kembla. He worked there for about five years and then returned to Serbia for some three years, during which time he married. In 1978, he returned to Australia and again took up employment with BHP. He remained there for about five years, before again returning to Serbia for about two years. He returned to Australia in 1985 and was employed by the Australian Government Munitions Factory in Footscray. In 1994, he was employed as a foundry cook by James Coppell Lee Pty Ltd, where he remained in employment until about 1999.
14 In the course of his employment with James Coppell Lee Pty Ltd, he suffered some back pain in 1998 and attended upon his general practitioner, Dr Choon. An x‑ray of his lumbar spine was performed, which showed some early spondylosis at L3, L4 and L5 levels.[7]
[7]Plaintiff’s Court Book (“PCB”) 33
15 In 1999, he commenced employment with the first defendant. He was involved in the manufacturing of large and heavy steel parts used for train tracks. He remained in that employment until December 2006, when he resigned in circumstances to which I will refer later. I accept that his duties with the first defendant involved constant, heavy work. Normally he worked five days per week, but often worked overtime.
16 Mr Joksimovic experienced some relatively minor symptoms of back pain within a short period of commencing work for the first defendant, but had few problems of that nature until April 2006, when he experienced more substantial symptoms of low-back pain.
17 His general practitioner, Dr Choon, and later, Dr Alpay from the same practice, certified him unfit to work for various periods in April and May 2006. Mr Joksimovic was then certified fit for modified lighter duties, and continued at work through until December of 2006.
18 There was some dispute between the parties as to over exactly which periods he worked on light duties and the periods in which he worked normal duties. I do not consider that a lot turns on the precise dates involved. It is clear that from time to time in 2006, Mr Joksimovic was respectively certified as unfit for any work, fit only for modified or light duties and fit for normal duties. I accept that he was generally able to cope with light duties but had difficulties with normal duties due to low-back pain.
19 He continued on in his employment performing relatively heavy duties most of the time through until December of 2006.
20 In April 2006, Dr Alpay arranged for an x‑ray and CT scan of Mr Joksimovic’s lumbar spine. This reported as showing a moderate sized left L4-5 disc herniation likely to be compromising the L5 nerve root and which the radiologist considered would account for his symptoms. There was also reported a smaller disc protrusion at L5-S1.[8]
[8]PCB 34
21 In June 2006, Mr Joksimovic lodged a WorkCover claim form in respect of his injuries. That claim was in due course accepted.
22 Mr Joksimovic saw Dr Choon or Dr Alpay on numerous occasions during 2006. The clinical notes of the practice relating to him were tendered.[9] He had made numerous complaints in that year and afterwards concerning back pain. I note there were also complaints about pain into the buttocks and hamstrings. Dr Choon recorded that Mr Joksimovic was managing with light duties but was fearful of re-injuring his back. Dr Choon certified him as being fit to return to normal duties on 15 June 2006. On 28 June 2006, Mr Joksimovic attended and told him he had been working normal duties but could not sleep the previous night, secondary to back pain.
[9]Exhibit 2
23 In October 2006, Dr Choon prescribed Naproxen, an anti-inflammatory medication. This medication appears to have been prescribed regularly from 2007 until the present date. Mr Joksimovic was of the belief that the strength of those tablets had recently been increased. However, his current medication is Naprosyn (a trade name for Naproxen) 250 milligrams, the same strength that seems to have been prescribed by Dr Choon as far back as 2007. It is likely that Mr Joksimovic was getting this medication confused with medication that he was taking for other unrelated conditions, such as high blood pressure.
24 In November 2007 and October 2008, Dr Choon noted that Mr Joksimovic complained to him of suffering back pain every day. From time to time, the notes record that his condition was better. He often complained of pain in his buttocks. In June 2009, Tramal, a strong analgesic, was prescribed by Dr Choon. In April 2012, prescriptions of Naprosyn were ceased and he was changed to Arthrexin (another non-steroidal anti-inflammatory drug).
25 In November 2007, Dr Choon referred Mr Joksimovic to Mr Peter Kudelka, orthopaedic surgeon. Mr Kudelka saw him twice in that month and arranged for an MRI scan, which was carried out on 14 November 2007. It was reported as showing L4-5 and L5-S1 disc degeneration without neural compression. Mr Kudelka believed that these changes were responsible for Mr Joksimovic’s symptoms.[10] Mr Kudelka referred him for physiotherapy and hydrotherapy and considered that it was unlikely that he would find any remunerative employment in the future.
[10]PCB 19
26 Since that time, Mr Joksimovic has continued to see his general practitioner regularly. These visits were in part due to his ongoing blood pressure problems. Mr Joksimovic gave evidence that he advised his doctor about his ongoing back pain on each occasion that he saw him and, on balance, I accept that this was so, notwithstanding the absence of notes to that effect on a number of occasions.
27 Although Mr Kudelka recommended physiotherapy and hydrotherapy, there is no evidence that Mr Joksimovic ever received such treatment. He makes no reference to any such treatment in either of his affidavits.
28 In summary, the evidence discloses that Mr Joksimovic has undergone little, if any, treatment in respect of his low-back symptoms save for regular prescriptions for anti-inflammatory medication. He has not undergone any surgical procedure and no medical witness suggests that such is likely in the future.
Diagnosis of Injury
29 In May 2008, Dr Choon opined that Mr Joksimovic had degenerative disc disease which was likely to have been aggravated by his employment. He thought that, theoretically, he would be capable of performing light duties. However, taking into account his age, lack of language and vocational skills, it was unlikely that he would obtain any form of employment.[11] No up-to-date report from Dr Choon was tendered.
[11]PCB 22
30 Mr Joksimovic returned to Mr Kudelka in March 2012 to enable a medico-legal report to be provided. At that time, Mr Kudelka considered that Mr Joksimovic was suffering from chronic lumbar back pain which was related to his work with the first defendant. He considered that there were pre-existing, age-related, degenerative changes. He thought that Mr Joksimovic’s symptoms were associated with aggravated L4-5 and L5-S1 lumbar disc lesions with right sciatica.
31 Mr Kudelka considered that Mr Joksimovic had no current work capacity based on his chronic back pain and his age. He noted that his working background included no experience, education or literacy which would enable him to do non-physically demanding work such as in an office or similar. He thought he had no possibility of being realistically employed in the open market.[12] Mr Kudelka saw Mr Joksimovic again in September 2012, and his conclusions were essentially the same as those reached by him in March. In a supplementary report dated 25 October 2012, Mr Kudelka stated that Mr Joksimovic had chronic back pain and limited employability due to the severity of his back pain, limited mobility, limited English and limited experience in any but physically demanding occupations. He believed that the period of employment with the first defendant aggravated degenerative changes in his lumbar spine, and that aggravation had not resolved.
[12]PCB 26
32 Mr Kudelka stated that, at the age of sixty-five, Mr Joksimovic would require rest for about fifteen minutes every two hours and was unlikely to complete five 8-hour days a week. He would have restrictions in bending, and lifting weights in excess of 2 to 5 kilograms. He considered that he was unlikely to find employment in the future.[13]
[13]PCB 32
33 Mr Gerald Moran, orthopaedic surgeon, saw Mr Joksimovic at the request of the WorkCover claims agent in October 2008. He described his symptoms as being constant low-back pain with restricted back movements. At that time, Mr Joksimovic was complaining of constant pain at the back of both thighs, but no pins or needles or numbness. Mr Moran considered that the injury arose in the course of his employment with the first defendant and that he had suffered an aggravation of L4-5 and L5-S1 disc degeneration.[14]
[14]PCB 12
34 Mr Michael Shannon, general surgeon, saw Mr Joksimovic at the request of the defendants’ solicitors in July 2011 and September 2012. On the earlier occasion, he opined that Mr Joksimovic was suffering from mechanical back pain associated with disc degeneration at the lowest two lumbar levels, which was an aggravation and possible acceleration of underlying degenerative change. He considered that the MRI scan did not show any focal disc prolapse nor evidence of nerve root compression and that, clinically, there was no evidence of radiculopathy. There were some non-organic features of his presentation.
35 Mr Shannon thought that Mr Joksimovic was probably capable of functioning socially and occupationally at a somewhat better level than was acknowledged by him. He thought he had a theoretical capacity for light physical work with restrictions on prolonged or repetitive bending or heavy lifting. He thought that he could work as a car park attendant or do light packing work. After the second examination, he expressed a similar opinion. In relation to employment, he thought Mr Joksimovic was permanently restricted in performance of work involving prolonged or repetitive bending or heavy lifting.
36 Professor John Hart, orthopaedic surgeon, saw Mr Joksimovic at the request of the defendants’ solicitors in September 2012. A history taken from him at that time was that he had intermittent pain in the upper lumbar spine to the right and left of the mid line and that the pain did not extend to the buttocks or into the lower extremities. Pain was said to be aggravated by sitting, bending and lifting. Professor Hart found no abnormal neurological signs. He thought that Mr Joksimovic had low-back pain related to degenerative disease affecting the L4-5 and L5-S1 discs and the posterior facet joints at L5-S1. Although there was a small protrusion at L4-5, it was not producing neurocompression at the time of the MRI scan in 2007. He thought the heavy work that he was doing with the first defendant was consistent with the development of degenerative lumbar spondylosis or degenerative change in the lumbosacral spine. He thought that his presentation was consistent with the radiological findings. He described the episode in April 2006 as being when disc prolapses at L4-5 and L5-S1 most likely occurred.[15]
[15]Defendants’ Court Book (“DCB”) 39
37 In relation to work capacity, Professor Hart was of the view that Mr Joksimovic would be unable to perform any work which involved bending, lifting more then 10 kilograms from waist level, twisting and turning, or heavy pushing and pulling. He noted that he had only ever worked as a labourer, and agreed that his age, limited education, poor English, in combination with his physical restrictions, gave him a very limited work capacity.[16]
[16]DCB 39-40
38 It is apparent that the medical evidence is largely non-contentious. Mr Joksimovic performed heavy labouring work for many years before 2006. In 2006, in the course of his employment with the first defendant, he suffered symptoms of back pain which at times radiated into his buttocks and thighs. I accept that his work with the first defendant aggravated pre-existing degenerative change and caused the development of substantial symptoms of back pain and restriction of movement.
Consequences of Injury
39 Any assessment of the consequences of injury for a plaintiff in such an application as this will involve an assessment of the credit of the plaintiff. Here, counsel for the defendants submitted that Mr Joksimovic was an unreliable witness. She drew my attention to a number of aspects of his evidence to support this submission:
(a)In his oral evidence, he had emphatically disputed that he could mow the lawn. In his affidavit sworn on 4 May 2011, he swore that he was able to, and in fact did mow the lawn at home.[17] Later in his oral evidence, he said that he was able to do the lawn with a Whipper Snipper and afterwards had to rest. He stated that he had been able to mow the lawn while he had a small mower but now a heavier mower had been purchased and he was unable to use it. The lawn was now done by his sons. Although there were aspects of his evidence that were confusing, I thought that most of the suggested inconsistency was likely to be due to confusion associated with the interpretation of questions and answers from Serbian to English and vice versa. I did not think that his answers to questions relating to mowing the lawn were indicative of a lack of honesty.
[17]PCB 14
(b)In his affidavit adopted on 12 November 2012, Mr Joksimovic had said:
“I still seek treatment from Mr Kudelka and my general practitioner ….”[18]
[18]PCB 15B
In fact, he had not seen Mr Kudelka for treatment since 2007, more than five years ago. However he had seen Mr Kudelka on a medico-legal basis in September 2012. I do not draw the conclusion that the portion of the affidavit referred to was a deliberate attempt by him to mislead the Court.
(c)In paragraph 7 of his recently adopted affidavit, he said that he was awoken with pain most nights.[19] In cross-examination, it was put to him that he had not mentioned such problem to any doctors who had examined him. Counsel referred to Dr Choon’s clinical notes for 15 March 2011 in which the word “sleeping” is followed by a tick. He agreed that he had told Dr Choon at that time that he was sleeping all right. However, I do not consider that this is indicative that he had not, at any stage, had problems sleeping due to back pain. When asked why he had not told any doctor about sleeping problems, Mr Joksimovic had responded by saying that he had answered the questions the doctors had put to him. I understand by this that he meant that if a doctor did not ask him about sleeping problems, then it was likely that he would not have advised of that issue. I accept that it is likely that Mr Joksimovic does suffer sleeping problems on account of low-back pain. I take into account that none of the medical practitioners who examined him appear to have doubts that he does suffer from back pain. Further, sleep disturbance is a common complaint form persons suffering from pain.
(d)Mr Joksimovic had said in oral evidence that his prescription for Naproxen had been increased recently in strength. He produced his current box of tablets, which indicated that he had been prescribed Naproxen, 250 gram tablets. Counsel pointed out that Dr Choon’s clinical notes indicate that this was the same strength medication as that prescribed for him in 2007. Mr Joksimovic was unable to explain this. Notwithstanding, I think it likely that Mr Joksimovic was confused about an increase in strength of medication and it may well be that it was blood pressure medication that had been increased in strength. I do not consider that much turns upon this.
(e)Counsel pointed out that in his first affidavit, Mr Joksimovic had indicated that there were some three occasions when he had been certified fit only for light duties. At the conclusion of each of those periods, he had returned to normal duties. In his oral evidence, Mr Joksimovic could recall only that he had spent a period of one month on light duties and had then returned to normal duties. He could not recall any other instances of light duties. The affidavit material[20] was consistent with the report of Dr Choon[21] in relation to their being a number of occasions upon which he was certified fit only for light duties. Mr Joksimovic was likely to have been mistaken in his oral evidence. I take into account that he did state that on occasions when he was supposed to be on light duties, the reality was that he was performing heavy work. An example of this was his evidence concerning the placement of fifty dog spikes, into a bag and lifting such bag onto a floor level pallet. Although he was somewhat vague about the weight of a bag containing fifty such spikes (describing it as 20 to 30 kilograms and earlier 30 to 40 kilograms), I think it likely that such a bag would be heavy and quite inappropriate for a person with an injured back, certified as being fit for light duties only, to be lifting and placing such a bag at ground level on a repetitive basis. I do not consider that his failure to acknowledge or recollect several periods on light duties, as opposed to one, was in any way indicative that he was attempting to mislead the Court. I consider it likely that he was merely uncertain and confused about dates and events in 2006.
(f)Mr Joksimovic had given evidence that he could not run. A DVD film of Mr Joksimovic taken on 12 September 2012 showed him jogging twice for a few steps on each occasion. The first of these was whilst crossing St Kilda Road, presumably to clear the road before traffic descended upon him. The second occasion was to jog a short distance in order to ensure that he reached a tram stop in order to get onto a tram. I accept that the film showed him jogging in a manner that did not indicate pain or any obvious restriction of movement. Nevertheless, the distances jogged by him were very short on the two occasions depicted. It would be more accurate to say he was jogging rather than running on those occasions.
(g)In oral evidence, Mr Joksimovic stated that Professor Hart had told him that he had found wasting of muscles in his leg. In fact, Professor Hart made no such comment in his reports. Further, it was submitted that it was significant that Mr Joksimovic had made no mention of any wasting in either of his affidavits. I consider that it is likely that, if Professor Hart had found muscle wasting, he would have noted it in his report. The fact that there was no such mention probably indicates that he found no such wasting. It may be that Mr Joksimovic was confused as to the identity of the doctor providing that advice to him.
(h)In evidence, Mr Joksimovic had said that in addition to low-back pain, he had suffered pain down his right leg. Counsel for the defendants pointed out that, in histories given to Mr Shannon[22] and to Professor Hart,[23] Mr Joksimovic had indicated that he had no leg pain. In his adopted affidavit, Mr Joksimovic had described a “piercing” pain as far down as his toes.[24] I consider that his statements to Mr Shannon and Professor Hart were to the effect that at the time that he was being examined by them, he was not suffering from leg pain. I do not draw the conclusion that such a statement indicated that he had never experienced such pain.
[19]PCB 15B
[20]PCB 14 at paragraph 9
[21]PCB 22
[22]DCB 24
[23]DCB 34
[24]PCB 15A
40 Counsel for the defendants pointed out that the DVD film shown of Mr Joksimovic indicated that he did not suffer any great restriction of movement. I agree that the film indicated that he was able to walk in an unrestricted manner at a reasonable pace for some twenty minutes. Mr Joksimovic agreed that the film had been taken shortly after his examination by Professor Hart on 12 September 2012. He stated that rather than catch a tram from outside Professor Hart’s rooms in St Kilda Road, he had chosen to walk for about a kilometre or so over approximately twenty minutes by way of exercise, as he had been encouraged to do by his general practitioner. I do not consider that the film showed him walking to an extent denied by him to any practitioner or in evidence.
41 I accept Mr Joksimovic’s evidence that he suffers form ongoing pain and discomfort in his low back on a constant basis. It is likely that his pain fluctuates from time to time. He is now aged sixty-five. I infer that he has a life expectancy of some twenty years, possibly more. It is unlikely that his back pain will improve to any extent. It may get worse. The evidence of medical practitioners does not cast doubt that he does suffer pain in his low back. It is said to be consistent with the radiological evidence.
42 I accept that notwithstanding the presence of pre-existing degenerative change in his lumbar spine, Mr Joksimovic had been able to work on a full-time basis in a relatively heavy labouring job for more than thirty years. Whilst he had complained of some back pain in 1998, it appears that this did not incapacitate him for other than a very short period of time. His work record is, on any view, an impressive one. I accept that in the years leading up to his employment with the first defendant, and for some years thereafter, he was essentially asymptomatic. It was only following the exacerbation of his back pain in 2006 that such symptoms were serious for him.
43 I acknowledge that Mr Joksimovic has not had a great deal of physical treatment since the exacerbation of his symptoms in 2006. However, this is not a case where specific treatment has been suggested by medical practitioners and declined by an injured person. He has undergone radiological scans when suggested. He has taken medication that has been prescribed for him. Neither Dr Choon nor Mr Kudelka has suggested anything other than conservative treatment for him. Mr Joksimovic has done all that has been asked of him.
44 Mr Kudelka described Mr Joksimovic as having chronic back pain and right leg pain due to sciatic nerve irritation. He thought that only palliative, symptomatic and conservative treatment was appropriate in the form of heat, massage and simple analgesics. He expressed no doubt that he continued to suffer back pain, back stiffness and pain shooting down the right leg. He was of the view that he had limited employability, due to the severity of his back pain, limited mobility, limited English and limited experience.
45 Mr Shannon has accepted that Mr Joksimovic suffered from mechanical back pain and was permanently restricted in the performance involving prolonged or repetitive bending or heavy lifting.
46 Professor Hart appears to have accepted Mr Joksimovic’s complaints of intermittent pain in the lumbar spine. He thought his presentation was consistent with radiological findings. He agreed that his ability to perform heavy work was significantly restricted. He had a very limited work capacity.
47 There was no evidence that Mr Joksimovic had had to forego any particular hobbies or activities that he had previously enjoyed as a result of his injury. Notwithstanding, I accept that he does suffer significant pain on a constant basis. That pain flares if he sits or stands for a prolonged period or if he bends, twists or lifts heavy items. I accept his statement that simple things like getting up from a chair or going upstairs was painful. I accept that he is awoken with pain on most nights.
48 On the basis of the material set out above, I conclude that the pain and suffering consequences of the injury to his low back, when judged by comparison with other cases in the range of possible impairments or loss of a body function, can fairly be described as being more than significant or marked and as being at least very considerable.
49 Mr Joksimovic also claims that the loss of earning capacity consequences are also more than significant or marked and at least very considerable. I do not consider that he has established this.
50 Mr Joksimovic resigned from his employment in December 2006, when he was aged nearly sixty. He told Professor Hart that he had resigned because of a combination of headaches, hypertension and his low-back pain. The clinical notes of Dr Choon reveal that he had been treated for a considerable period of time for hypertension. He had been prescribed medication in respect of that condition for many years. Mr Joksimovic agreed in evidence that this was so.
51 In his affidavit material and in oral evidence, Mr Joksimovic acknowledged that he was able to cope with light duties when provided by the first defendant over a significant period leading up to the fire that destroyed the defendant’s premises. He described working in the storeroom assembling products to be exported to China. He said that the defendant had too many people to do this work and he had been put back on normal duties. There were other people doing that job who had been employed there for up to ten years. He said he would have been able to cope with that easier work but because of the number of other employees, he was forced to go and do heavy work. I consider that this evidence is indicative that there were genuine lighter jobs in existence at the first defendant’s premises which Mr Joksimovic was capable of doing.
52 I consider this was suitable employment for him, in the sense that that term is defined in s5 of the Act. I note that the definition applies regardless of whether such work is available at any given time. Mr Joksimovic carries the onus of establishing that at the current time, he has no capacity for any employment, including alternative employment which, if exercised, would result in him earning more than 60 per cent of gross income from personal exertion as determined in accordance with s134AB(38)(f) of the Act. I am not satisfied that he has established that incapacity.
53 Further, at the present time, Mr Joksimovic is aged sixty-five. That age has for many years been generally considered to be a normal retirement age for many if not most people in this community. In oral evidence, Mr Joksimovic stated that he intended to work past the age of sixty-five had he not suffered the injury to his low back. He stated that he would have probably worked up to the age of about sixty-seven. In neither his first affidavit or in the second affidavit adopted on the first day of the hearing, did he say anything about working beyond the age of sixty-five. Further, I note that at the time he resigned in December 2006, he made no application to the first defendant for lighter work. He did not give any indication at that time that he had a desire to work on in any capacity.
54 Mr Joksimovic had attended upon Dr Choon on 30 November 2006, 4 December 2006 and 28 February 2007. On neither of those occasions did Dr Choon make any note about Mr Joksimovic ceasing work or the reason for it. In February 2007, he noted Mr Joksimovic’s plans to travel overseas and indicated that there would be a review upon his return. The review appears to have occurred in June 2007 upon his return.
55 On the evidence before me, I am not satisfied that Mr Joksimovic intended to work beyond the age of sixty-five. I am required to assess the loss of earnings consequences for him as at the date of this hearing. I am not satisfied that he would have worked past the date of hearing. Accordingly, I am not satisfied that the loss of earning consequences of his injury are, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being “at least very considerable”. Likewise, I am not satisfied that any loss of earning capacity is serious when compared with such other cases.
Conclusion
56 For the reasons expressed above, I am satisfied that Mr Joksimovic has suffered a serious injury to his lumbar spine. There will be leave for him to commence a proceeding claiming pain and suffering damages in respect of injuries suffered by him in the course of his employment with the first defendant.
57 I am not satisfied that Mr Joksimovic has established that the loss of earning capacity consequences of that injury are “serious” or that he has suffered a loss of earning capacity of 40 per cent when measured in accordance with s134AB (38) (e), (f) and (g) of the Act.
58 I shall hear the parties as to costs.
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