Jurukouski v Windsor Caravans Pty Ltd

[2015] VCC 1800

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-14-04046

DRAGAN JURUKOUSKI	Plaintiff
v
WINDSOR CARAVANS PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 2 and 3 December 2015
DATE OF JUDGMENT:	4 December 2015
CASE MAY BE CITED AS:	Jurukouski v Windsor Caravans Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VCC 1800

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:             Serious injury – injury to dominant right shoulder, left shoulder and low back

Legislation Cited:     Accident Compensation Act 1985, s134AB

Cases Cited:Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Lakic v GB Galvanising Service Pty Ltd & Anor [2001] VCC (23 Nov 2001); Cartes v Silcraft Pty Ltd & Victorian WorkCover Authority [2011] VCC 1502; Acir v Frosster [2009] VSCA 454; Smorgon Steel Tube Mills v Majkic (2008) 21 VR 193; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121

Judgment:                 Leave granted to the plaintiff to bring proceedings for pecuniary loss damages – leave conceded as to pain and suffering damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A MacTiernan	Grace Placencio Davies & Company Lawyers
For the Defendant	Mr T Ryan	Hall & Wilcox

HIS HONOUR:

1       The claim is for serious injury leave with respect to the dominant right shoulder, left shoulder and low back.  The injuries are all admitted compensable injuries that were suffered in the course of employment with the defendant from 1999 until 19 March 2012,[1] probably the last day he worked.  The defendant admits the left shoulder/arm is a “serious injury” with respect to pain and suffering damages.[2] 

[1]Plaintiff’s Court Book (“PCB”) 262

[2]Transcript (“T”) 5-6

2 The issues are whether any of the three body impairments on their own are a “serious injury” with respect to loss of earning capacity. There is another issue raised by the parties and that is, whether the right and left shoulder/arm impairments can be aggregated as one body function described as a loss of manual dexterity and its impairment judged that way. If so, does the aggregated impairment cause the requisite permanent loss of 40 per cent or more under the Act?[3] 

[3]Accident Compensation Act 1985 (“the Act”)

3       The plaintiff is aged fifty-eight years.  He came to Australia in 1981 from Macedonia and has had only five years of primary school education there.  His English skills are poor, both orally and in reading and writing.  He required an interpreter in Court even for the oath.  He is obviously a very simple, unsophisticated man who has only ever worked in heavy unskilled labouring positions.  It is no exaggeration to say he really has no formal education when viewed as a participant in the workforce in this country where thirteen years of schooling is now the more usual course whatever the scholastic performance. At formal assessment he was found to have low intelligence and impaired concentration and memory skills.[4]

[4]PCB 196

4       The plaintiff performed extremely heavy work as a caravan assembler.  Its very vigorous demands were fully set out in his first affidavit.[5]  The many and varied demands of that work on his dominant right arm need no elaboration save to say they are heavy, constant, repetitive and varied.  He was put on so-called light or restricted duties from about 2008 to 2010 and then some further restricted duties from then until being terminated in March 2012.  They were all still repetitive physical duties requiring constant dexterity and use of both arms.[6]

[5]PCB 56-64, 73-74

[6]PCB 66, 68-69, 74

5       The defendant chose not to cross-examine the plaintiff but after taking the oath and the very brief examination-in-chief, his very limited English skills were obvious.  He needed an interpreter to assist him to swear his affidavits as well as reading them back to him.  Obviously I could not otherwise assess the plaintiff as a witness.  There was however no question raised as to his credibility or genuineness in medical reports nor in submissions.  I therefore accept the affidavit evidence as reliable and accurate.  I note also the index to exhibit 1 contained a reference to the existence of video surveillance of the plaintiff.  None was shown or tendered.

6       Turning to the dominant right shoulder, being the first impairment relied on, conservative treatments and ultrasound investigation occurred.  On 9 March 2012, both shoulders were scanned and he had more significant pathology on the right.  There was a thickness full-width tear of the supraspinatus with tendonosis and tenosynovitis of the longhead of the biceps tendon.  The left shoulder also had very clear pathology.[7]   MRI scans of both shoulders followed on 13 November 2012.[8] 

[7]PCB 110-111

[8]PCB 113-115

7       After something of a battle, the insurer accepted liability for the shoulders, and the left shoulder/arm has now been conceded as a “serious injury” for pain and suffering consequences. 

8       On 9 September 2014, Mr Jonathan Hooper, orthopaedic surgeon, performed a subacromial decompression/repair on the right shoulder.  The operation report speaks for itself in regard to the extent of the damage found.  It was consistent with the scanning.[9]  In short, the surgeon found sufficient damage to perform:

“…a radical anterior/inferior acromionectomy using the saw and drill. Attention was then directed to the cuff and he had a large shaped tear of the cuff exposing biceps tendon.  The bone underneath was ebonated and using a 5.5 mm cork screw suture we were able to oppose the tear down onto bare bone and the tear was then repaired longitudinally with fibre wire”.[10]

[9]PCB 119

[10]PCB 119

9       After that surgery, extensive physiotherapy and other rehabilitation took place. 

10      This case involves the usual problem of attempting to understand and make findings from medical notes and reports without any oral explanation from any doctor.

11      Mr Hooper, who had the advantage of seeing the plaintiff on a number of occasions, said “I found him a very pleasant genuine and honest man”.[11]  Mr Hooper had reported the patient had tendinopathy and cuff tears in both shoulders.  After the operation on the right, he said, only last month, that the right shoulder pain had gone but there was still limitation of movement.  The left shoulder remained painful, with limited movement.[12]  As to work, he really considered the plaintiff’s only possibility was suitable light work of a supervisory type as I read his two very recent reports.[13] 

[11]PCB 122

[12]PCB 121

[13]PCB 121-123

12      Mr Hooper seems to read that view due to the combination of the right and left shoulders.  He did not treat the spinal problem, so the comments relate to the bilateral arm impairments.[14]  On my reading, what Mr Hooper said is full of qualifications.  He said “realistically I can’t see this man getting back to light work because of his medical problems and lack of transferable skills”. He adds a rider about “realistically” a second time when discussing how, depending on the type of job “if any”.  In the end, he concluded “if he was able to get a supervisory job he would probably be able to work full time …” but then qualified that by stating “if any repetitive hands-on work was involved”.[15]  I have not heard from the surgeon by way of any oral explanation.

[14]PCB 121

[15]PCB 123

13      The Plaintiff’s pre-injury employment, age, education, skills and work experience need to be considered in terms of “suitable work”.[16] When those factors are considered, Mr Hooper’s reference to a supervisory job is little more than academic or theoretical. Added to the s5 matters, is a man with limited language skills and cognitive capacity, as already referred to.

[16]Section 5 of the Act

14      The doctor who knows him best of all is probably the general practitioner, Dr A Schon, from Epping.  He reported eight times between 2012 and October 2015.[17]  He also wrote two short letters concerning work restrictions in 2012.[18]  The Epping clinic has been the family practice since 2000.[19]  He noted in 2012, the plaintiff had only really had one job since being in Australia and that was as a caravan builder, clearly very heavy work.[20]  He recorded his patient’s limited English, education and other skills.[21]

[17]PCB 124-140

[18]PCB 79-80

[19]PCB 124

[20]PCB 126

[21]PCB 127

15      Dr Schon’s report was a reminder of the need to keep in mind the realities of the labour market out in the employment world when assessing residual earning capacity.[22]  When a worker has lost the capacity to return to the only work he has really been involved in for virtually his whole adult life, a realistic approach needs to be taken to capacity for alternative work said to be “suitable”.[23]

[22]Acir v Frosster [2009] VSCA 454; Smorgon Steel Tube Mills v Majkic (2008) 21 VR 193

[23]Section 5 of the Act

16      For an unskilled manual worker, the realities are that the dominant arm is probably the worker’s primary and most important asset.  The final opinion of the general practitioner is informative, and I accept it.

“Mr Jurukovski (sic) remains unfit to ever return to his pre-injury duties as a caravan builder.  Mr Jurukovski (sic) continues to suffer from left shoulder right shoulder and lumbar L5/S1 disc injuries as a direct consequence of the work he has undertaken from 1999 onwards.  He is unlikely to be able to ever undertake any duties that involve him elevating either arm above mid chest level, pushing, pulling of lifting more than 3kg intermittently and 1kg repetitively with his dominant right arm or undertaking any activity for which he has to work with overhead elevation of his arms.  When taken into consideration with a combination of his training, skills, English proficiency and computer skills he remains unfit for any job for which he has been trained, experienced or could be retained for. [24]

[24]PCB 140

17      The general practitioner ended by noting how compliant the patient had been with treatment.  Sadly “… there is no further rehabilitation, physiotherapy or operation which would alter his primary restrictions”.[25]  I accept this prognosis.  There has been different conservative treatment tried.  For example there is a table of physiotherapy attendances in 2014 and 2015 that number close to eighty treatments but no opinions were provided.[26]  They do not assist as to capacity in any direct way but add to the picture of a very compliant, motivated patient.

[25]PCB 140

[26]PCB 155-156

18      On all the evidence from the treaters, I am satisfied the impairment of the dominant right shoulder and arm precludes the plaintiff from any capacity for suitable employment.  He is a manual worker and nothing more.  The only alternative job the defendant suggested is light product assembler which I will comment on later, but it requires manual dexterity and repetitive use of both arms.[27]  When looked at realistically, this uneducated man with limited language skills who turns fifty-nine years next February, is all but unemployable due to the impaired dominant arm.  The incapacity on the probabilities will remain for the foreseeable future.

[27]PCB 201

19      The plaintiff also saw another specialist, Mr M Rogers, for treatment.  He is a neurosurgeon and only treated the spinal impairment.  He was not involved with the shoulder injuries.  In particular, he diagnosed an L4-5 disc prolapse with foot drop that had failed conservative management.  He thought surgery was warranted.[28]  However, I will not deal further at this stage with the spinal injuries, the third impairment the plaintiff seeks leave for.

[28]PCB 118

20      The medico-legal evidence the plaintiff tendered was from an orthopaedic surgeon, Mr Michael Shannon, who examined him in 2014 and 2015.  Mr Shannon said, in 2014, in the context of the two shoulder impairments:

“He is therefore permanently unfit for work involving prolonged bending, heavy lifting and in particular lifting above shoulder level or indeed overhead activities.”[29]

[29]PCB 147

21      The comment was really in relation to the bilateral shoulder impairments.  In 2015, he considered the injuries “taken in isolation”, and really came to the same view.[30]

[30]PCB 152

22      Following his September 2015 examination, Mr Shannon said each shoulder would limit capacity for work involving prolonged or repetitive bending or heavy lifting.  That, of course, is precisely the work the plaintiff did over virtually all his working life.  Without hearing from him, I read Mr Shannon as disentangling each shoulder injury, as well as the back, in giving this opinion.  He thought the unoperated left shoulder was the worst of the two arm impairments.[31] 

[31]PCB 152

23      In October 2015, Mr Shannon then reported on the two shoulders aggregated; that is, in the context of one body function, and said while he might be able to work in some alternative employment, the same restrictions on strenuous repetition and overhead activity were there.[32]

[32]PCB 154

24      When one looks again at the definition of “suitable employment” and takes this man’s education, experience and age into account, the only work capacity relevant to him is strenuous repetitive manual work, involving overhead tasks.  I read Mr Shannon as saying he is permanently precluded from that work because of a serious injury to the dominant right shoulder on its own and because of one to the left on its own.  Obviously the combination of the two means the same result restated.

25      Only one doctor has examined the worker at the request of the defendant.  That is Dr M Boffa, occupational physician.  He saw the plaintiff in 2014 and twice in 2015.  He gave a description of the very heavy demands of the plaintiff’s usual occupation:

“The work involved heavy manual handling, cutting aluminium sheets and foam panels and screwing them in place against the frame of a caravan, after climbing up and down ladders to do so.  He uses power tools often held overhead to drill and screw both … .”[33]

[33]DCB 19

26      The demands on both arms, but particularly the dominant arm or the “tools arm” as it is often called in the trades, are apparent.  The doctor recorded how, since coming to Australia in 1981, such caravan fabrication was really all he had worked at after his farm labouring days in Macedonia.[34] At the recent examination in September 2015, Dr Boffa recorded less mobility in the right shoulder than with the unoperated left shoulder.  Strength was reduced in both equally.[35] 

[34]DCB 19

[35]DCB 22

27      There was consistency between the diagnosis and pain restrictions.  The doctor thought the pre-injury duties were beyond him and on the report, that seemed to be due to the combination of bilateral shoulder and spinal problems.  However, he did give this very qualified opinion for a man who is nearly fifty-nine years old and who had only ever done heavy work:

“The worker may be capable of graduated return to light assembly work tasks that allow a change of posture and avoid repetitive overhead reaching, lifting and carrying more than 10kg.”[36]

[36]DCB 23

28      The impairments were permanent.  When looked at realistically, I do not read this opinion expressed as a “may be” as saying he probably could work at a physical job.

29      I have not heard from the doctor but I read these limitations as due to the dominant arm impairment alone, as well as other impairments when one considers the demands of the plaintiff’s old job as set out by Dr Boffa.  Obviously heavy reliance on the arms was part and parcel of this job.

30      It is relevant that on 19 March 2012, the plaintiff was terminated by letter from the employer due to his being unable –

“… to carry on the inherent requirements of your pre injury duties in the foreseeable future.”[37]

[37]PCB 85

31      This really came in the context of the shoulder injuries.  He had been on restricted duties for some years following back symptoms but when the shoulders became injured, his own employer could not even use him in any restricted duties.[38]

[38]PCB 79-80, 83

32      This was a worker obviously employed and probably held in good esteem over many years of hard work and his longstanding employer could not place him due to his shoulder injuries.  This is one of the matters relevant to an assessment of earning capacity in the realities of the open employment market. The termination letter needs to be considered in the context of the aggregated injuries to his arm and to his spine, as the employer was no doubt looking at the employee as a whole package.  The shoulder impairments tipped him over the edge into unemployability with the defendant.  I find the right shoulder impairment alone has resulted in a permanent loss of earning capacity of 40 per cent or more.

33      Dealing with the second injury the plaintiff relies on, non-dominant left shoulder on its own, the defendant conceded it is a serious injury in regard to pain and suffering consequences.  Uncontested evidence is that repeated and physical work involving both his arms led to injury to the shoulders.[39]  Given the duties, this is no surprise[40] judging the left shoulder now.  On the evidence, all the references I have already made to restrictions, limitations and loss of strength in the right shoulder apply to the left[41] but before surgery the right was more painful.  Now the left is more painful.[42]  Ultrasound and MRI demonstrated significant degeneration in both, with the dominant arm pathology being more extensive.[43]

[39]PCB 72

[40]PCB 56-64

[41]PCB 90

[42]PCB 77, 92-93

[43]PCB 110-111, 113-115

34      In spite of the surgery helping the right shoulder pain, I accept the plaintiff’s evidence the shoulder problems are now the major problem for him.[44]  Given the evidence that pain has been reduced in the right post surgery, I take the evidence to reflect a position judged now, where the left is worse than the dominant right in terms of pain.

[44]PCB 94

35      For a heavy manual worker suffering constant pain, restricted mobility and lack of strength in the left shoulder, this all severely impacts on capacity to carry out the duties involved in his work.[45]  The plaintiff requires two strong mobile shoulders and arms repeatedly used with heavy awkward tasks.  Some of the duties shown in the photographs of his work amply illustrate the left shoulder is, on some tasks, just as important as the dominant right.[46] Both are needed. The left shoulder impairment alone renders him incapable of heavy work or alternative “suitable work” as defined by the Act.

[45]DCB 56-64

[46]PCB 97-103

36      On the evidence, this is a permanent situation.  I find the left shoulder alone has resulted in a loss of earning capacity of 40 per cent or more for this unskilled heavy labourer.

37      It is unusual in a case such as this that the plaintiff was not tested in cross-examination about suggested alternative suitable employment.  The parties agreed the defendant carries an evidentiary burden when all doctors agree his old work is beyond him.[47]  Light product assembler was the only position relied on by the defendant as being within the plaintiff’s capacity now.[48]  The plaintiff, not being questioned about his opinion on what he could do and not do in this regard, the vocational assessment reports are of assistance.

[47]Giankos v SPC Ardmona Operations Limited [2011] VSCA 121

[48]DCB 31

38      There is a contrast between the vocational assessment materials tendered by the plaintiff compared to those tendered by the defendant.  The plaintiff’s reports came from Job Options Consulting.  Mr Bill Radley, psychologist and vocational assessment specialist, provided aptitude analysis of the plaintiff and gave opinions based on up to 30 enclosures by way of medical reports and other documents.[49]  He met and interviewed this worker personally and communicated by telephone.

[49]PCB 181, 232

39      The defendant’s materials were from Work Focus NES and the most up-to-date reports were from psychologists, Ms Maria Lee and Drago Sapina.[50]  While other people at Work Focus had interviewed the plaintiff on a number of occasions, on the papers, Ms Lee never met or spoke to the worker.  In her report of 13 July 2015, she only relied on three medical reports out of a list that had been exchanged between the parties that exceeded twenty.[51]

[50]DCB 70-87

[51]DCB 81

40      Strangely, she reported that the plaintiff had a basic level of formal education.  In my view, that is a complete overstatement of the situation.  He only had five years of primary school in Macedonia and has had nothing at all in Australia.  It is not even a basic education level in this country.  She noted his employment had been limited to caravan assembly.  Nevertheless, five other jobs were suggested.[52]  Ultimately, the defendant sensibly abandoned four of these and submitted the fifth one “product assembler – light items” was the only appropriate alternative capacity.

[52]DCB 81

41      Another report from Work Focus in November 2015 noted how the plaintiff was willing to participate in job-seeking services and explore work options but he was not optimistic.[53]  This last report seemed to be signed by Drago Sapina but it is not entirely certain.  It also mentioned some other jobs under “suitable job options” but the defendant only relied on the “product assembler – light” mentioned already.  It is not clear whether Drago Sapina personally ever met the worker.

[53]DCB 86-87

42      Mr Bill Radley, on the other hand, prepared much more extensive and thorough reports.  The raft of materials he read and then obviously referred to was about thirty in number.[54]  He referred to them in great detail so they had been clearly analysed.[55]  This contrasts with the limited attention to medical opinions by Work Focus.  Mr Radley conducted testing for aptitude.  He made a professional assessment of intelligence, concentration and memory.[56]

[54]PCB 182 and 213

[55]PCB 213-217

[56]PCB 196

43      Perhaps even more importantly, he analysed in some detail what the “product assembler – light” entails.  The job suggestion by Work Focus seemed to be little more than some theoretical job that turned up on some ANZSCO website.  Mr Radley rightly questioned what is meant be “light”.[57]  He made the point that it requires full work duties to be performed, not just the lighter aspects.  When the generic duties involved are examined, they require very extensive, repetitive manual dexterity.  Boxes have to be stacked and placed on pallets.  Punching and drilling holes have to be done, as do nailing, screwing, gluing and dowelling, riveting, crimpling, soldering and spot welding of components.[58]  On any view, the dominant arm is going to be required for all such tools and tasks and the reality is these are likely to be two-handed jobs repetitively performed about 7.5 or 8 hours per day, five days per week.

[57]PCB 218

[58]PCB 218

44      In my opinion, this is just some unrealistic theoretical job suggestion involving no visitation to the worksite, nor watching the workers do the job, nor properly considering the tasks against a comprehensive set of medical reports and the plaintiff’s affidavit.  Mr Radley concluded the suggested job required “consistent use of both arms and hands and fingers for the duration of each and every work day”.[59]

[59]PCB 219

45 Considering all the relevant evidence, I agree with Mr Radley’s final conclusion, reached after considering a wide range of relevant factors, including the sorts of issues s5 of the Act requires. Their final conclusion was:

“Mr Jurukouski is likely to have no work capacity for any alternative employment in the future.  He is effectively unemployable.”[60]

[60]PCB 201

46      I also agree with his opinion that, with his lack of education and language skills, he is not a realistic candidate for retraining.

47      Mr Radley did some disentangling, at least between the spinal impairment and the bilateral shoulder impairment.[61]  “Considering the injuries separately” meant the plaintiff had no present or future work capacity.  He did not delineate between the right and left shoulder but treated them as amounting to one body function.  That was a common-sense approach given the evidence in this case about repetitive manual work.  I will say more about the relevant body function shortly but an analysis of the very job suggestion the defendant relies on, points to manual dexterity being the relevant body function.[62]

[61]PCB 182

[62]PCB 201, 218-9

48      Dealing with all the evidence, I am satisfied on its own the impairment of the dominant shoulder/arm has resulted in the permanent incapacity Mr Radley spoke of.  I am also satisfied the left shoulder/arm impairment on its own has the same result.  They each individually render the plaintiff permanently unemployable for any suitable work.

49      The majority of the time expended in this three-day application was spent on submissions about whether the two shoulder injuries could be aggregated in regards to one body function.  I will make some comments on the issue, although it is not necessary to the determination of the application. 

50      I have been taken to a large list of cases in this Court on the issue whether the real body function on the evidence is “manual dexterity” as opposed to the functions of each shoulder/arm as a separate identity.  Of course the leading case is Lu v Mediterranean ShoesPty Ltd[63] (“Lu”) concerning a shoulder and an elbow.  Lu appears to allow permissible aggregation in certain circumstances involving the one cause of action from the one incident.  Chernov AJ, as well as Buchanan AJ referred to such a situation.[64] 

[63](2000) 1 VR 511

[64](Supra) at paragraphs 4, 22, 23, 24, 27

51      For repetitive workers impaired over a period, there is no logical reason in industrial accident cases why “the one course of employment” cannot be seen in this same context as one cause of action as it is when there is one single trauma or incident relied on.  Both a single course of employment can cause two or more injuries, as can a single incident.

52      Any proper analysis of the body function involved for a manual repetitive worker such as the plaintiff leads to a conclusion that the real function is manual dexterity requiring both shoulders and arms to operate.  Of course some things could be said to be done with one shoulder/arm, such as using a screwdriver to insert a screw or using a hammer, but even then something has to be held in the other hand.  The dominant hand is certainly used when a panel has to be held but equally, the other shoulder/arm is performing its role.    The dominant arm guides and drives tools but the other arm plays a vital role.  The uncontested affidavit evidence establishes the real body function relevant in this case is the combined dexterity of the right and left. 

53      Even the plaintiff threw light on this and it is uncontested evidence: 

“Some jobs might seem light because they don’t involve a lot of heavy lifting to move hands and arms quickly and stretching the arms many, many times a shift.”[65]

[65]PCB 90

54      He explained the situation further:

“With most jobs I would have to do things involving my hands and lifting is a major problem and also working with my hands forward or to the side.”[66]

[66]PCB 90

55      The “very physically demanding” duties involving both shoulders that included lifting and using different sized tools and materials set out in his first affidavit of necessity require full mobility and strength of the dominant right arm.  They also involve full use of and strength of the left arm as well in the real world of heavy labour, day after day.  Those duties require full use, mobility and strength of both shoulders/arms working as a team or as one unit as it were.  Manual dexterity is, in my opinion, the proper body function involved in this case. 

56      What is also important in this case is the injuries to both shoulders caused symptoms in the same course of employment with the same employer.  They became symptomatic at or on more or less at the same time and led the plaintiff to see his doctor on 5 March 2012.   Soreness was in both.  Both were restricted in movement.  The work done involved both shoulders.[67]  The bilateral ultrasound four days later, on 12 March 2012, revealed pathology in both shoulders.[68]

[67]PCB 70

[68]PCB 110-111

57      Accordingly, the one cause of action being negligence and/or breach of statutory duty arising out of the one course of employment would be the pleaded claim in this case.  That is a distinguishing feature from the different potential elbow and shoulder causes of action in Lu.  As already referred to, this case is a different situation from the one Buchannan AJ and Chernov AJ were dealing with in Lu when aggregation was rendered impermissible.

58      With respect those facts, they distinguish this case from a number of cases of fellow Judges in this Court who rejected the aggregation of functions.  In my view, two injuries can contribute to the impairment of one body function.

59      I note that the model litigant in the past seems to have conceded aggregation and agreed manual dexterity could be the appropriate body function flowing from bilateral injuries.[69]   However, this does not preclude an argument to the contrary being mounted now.

[69]See Cartes v Silcraft Pty Ltd [2011] VCC 1502, T105

60      I note also the matter of Lakic v Galvanising Service Pty Ltd & Anor[70] went to the Court of Appeal.  The Judge at first instance accepted bilateral hand/wrist injuries amounted to a single body function and granted serious injury leave for an unskilled process worker involved in repetitive work.  On 22 February 2001, in dismissing the leave to appeal application, while not elaborating, the Court of Appeal stated:

“We have concluded that His Honour’s conclusion that the respondent had suffered a serious injury is not …with sufficient doubt to warrant the grant of leave.”

[70][2001] VCC (23 Nov 2001, decision of Judge Gebhardt)

61      Interestingly, the Court comprised Winneke P and Chernov AJ, both of whom had sat with Buchannan AJ in the Lu case only a year before, in 2000.

62      While it is not strictly required in view of my earlier findings, less there is any doubt, I accept manual dexterity is the relevant body function in this case.  It is impaired by injuries to both the dominant shoulder/arm and to the left.  Taken together, the impairment results in this man suffering a permanent loss of earning capacity of 40 per cent or more, as do each of the impairments to each upper limb on their own.

63      It is not necessary to determine the third injury relied on in seeking leave for loss of earning capacity; that is the spine.  It is a compensable injury that on the uncontested evidence led to the plaintiff only being able to work light duties from about 2008 until he was put off in 2012 following shoulder injuries.  Clear objective disc pathology has been demonstrated by February 2008 and confirmed on MRI in October 2008 but I do not need to discuss further this impairment on its own.

64      I grant leave to the plaintiff to bring proceedings for pain and suffering damages and pecuniary loss damages.

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