Karunaratne v Toll Dnata Airport Services Pty Ltd
[2013] VCC 1160
•11 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03553
| ALOYSIUS KARUNARATNE | Plaintiff |
| v | |
| TOLL DNATA AIRPORT SERVICES PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27, 28 and 29 August 2013 | |
DATE OF JUDGMENT: | 11 September 2013 | |
CASE MAY BE CITED AS: | Karunaratne v Toll Dnata Airport Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1160 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earning capacity consequences – injury to the low back – whether the plaintiff has suffered of loss of earning capacity of 40 per cent or more when calculated in accordance with s134AB(38) of the Accident Compensation Act 1985
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Leave to the plaintiff to bring proceedings to recover pecuniary loss damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton SC with Mr G Coldwell | Adviceline Injury Lawyers |
| For the Defendant | Mr R Kumar | Herbert Geer Lawyers |
HIS HONOUR:
1 Mr Aloysius Karunaratne suffered injury to his right knee on or about 30 July 2007 in the course of his employment with the defendant. He seeks the leave of this Court to issue a proceeding to recover pain and suffering and loss of earning capacity damages in respect of that injury.
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 Karunaratne’s right lower limb.
5 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors Podolak (2005) 14 VR 622 at paragraphs [18] to [19]
6 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.[3]
[3]Section 134AB(38)(c)
7 With respect to loss of earning capacity damages, leave is not to be granted by the Court on the basis that Mr Karunaratne has suffered the loss of earning capacity required in s134AB(38)(b) unless he establishes, in addition to the requirements of ss38(c) of that section, that at the date of the hearing of the application he has suffered a loss of earning capacity of 40 per cent or more, calculated in accordance with ss(38)(e), (f) and (g).
8 The defendant has conceded that the pain and suffering consequences of Mr Karunaratne’s injury are fairly described as being more than significant or marked and as at least very considerable. However, it disputes that he has suffered a loss of earning capacity of 40 per cent or more when calculated in the manner prescribed by ss(38).
9 It is this matter that is to be determined by the Court in this application.
Background
10 Mr Karunaratne was born in Sri Lanka. He is now aged fifty-two. He was educated in Sri Lanka and passed Year 12. After leaving school, he worked as a cargo executive for about ten years.
11 He came to Australia in 1990 when aged thirty. In Australia, he worked as a freight operations clerk at Melbourne Airport, initially employed by Ansett Australia. That business was acquired by the defendant. Effectively, he had worked for the same business since soon after his arrival in this country in 1990. He had an excellent work record.
12 On 30 July 2007, he was struck by a trailer in the course of his employment. His right leg was crushed between the trailer and a roller system.
13 He was taken to The Royal Melbourne Hospital by ambulance and underwent surgery soon after. He was discharged on crutches and wore a knee splint. For a time, he was unable to stand without assistance and unable to drive a car.
14 When his symptoms did not improve, he saw his general practitioner, Dr Kertsman, who referred him to Mr David Young, an orthopaedic surgeon, and to a physiotherapist.
15 Between June and October 2007, he had x-rays and MRI scans of his right knee.
16 He eventually returned to work in October 2007, about three months after the collision. He commenced on light duties, working 12 hours per week.
17 On 8 December 2007, Mr Young carried out a second surgical procedure consisting of an arthroscopic debridement of the patello-femoral joint. He noted the articular surface of the patella was damaged.
18 Mr Karunaratne was off work following that surgery but, in early 2008, returned again on light duties and on limited hours. He gradually increased his hours at work, and by June 2008, was working full-time hours but on light duties.
19 In May 2008, Mr Young commenced a course of Synvisc injections in an attempt to improve the quality of the articular surface of Mr Karunaratne’s knee.
20 By February 2009, anterior pain in the knee had worsened and he had further crepitus and irritability. In March 2009, he ceased work when his knee became too painful to continue.
21 In April 2009, Mr Young performed a booster course of Synvisc injections.
22 On 5 June 2009, the defendant terminated Mr Karunaratne’s employment. The defendant wrote to him advising that his medical condition was such that it prevented him from returning to his employment.[4] Mr Karunaratne has not worked since that termination.
[4]Plaintiff’s Court Book (“PCB”) 114
23 On 1 August 2009, Mr Karunaratne underwent a third surgical procedure. Mr Young performed a further arthroscopy of his knee which showed Grade 2 chondropathology affecting the central ridge and medial facet of the right patella, and some synovitis in the medial gutter. A chondroplasty of the patellar articular surface was carried out and a partial synovectomy of the medial gutter.
24 During 2010, Mr Karunaratne received further courses of Synvisc injections from Mr Young.
25 In late 2011, Mr Young administered a course of Platelet Rich Plasma (PRP) injections. He recommended that Mr Karunaratne continue to perform low resistance exercises on an exercise bike daily. He has continued to see Mr Young every six or eight months.
26 During 2011 and 2012, Mr Karunaratne applied for numerous jobs. He was successful in obtaining some interviews. The closest he came to getting employment at that time was with Fedex as a part-time (20 hours per week) operations agent. He was offered a position subject to medical approval. He subsequently attended for a medical examination and was told shortly afterwards that his application had been unsuccessful. I accept that it is likely that his rejection was on medical grounds relating to his knee.
27 In December 2012, Mr Karunaratne obtained a part-time job with Bliss Travels (“Bliss”) in Moonee Ponds. He has worked there as a travel consultant to the present time. Initially he was employed 3 hours per day, five days per week. About three months ago this was reduced to 3 hours per day, four days per week, as a consequence of a down turn in business. In fact he is only paid for 9 hours work (3 hours per day, three days per week). He works 3 hours on the fourth day but without pay. For the time when he is paid, he receives $10 per hour. On that basis, he is currently paid $90 per week.
28 The amount he receives from Centrelink in respect of the Disability Support Pension is adjusted from time to time depending on how much he earns with Bliss.
29 He is prescribed Panadeine Forte from time to time and also purchases Panadol over-the-counter. He also purchases glucosamine, which I understand is a non-prescription tablet which may help with degenerative changes in joints.
30 He attends a gymnasium six days per week.
Diagnosis of injury
31 The nature of the injury suffered by Mr Karunaratne is not contentious.
32 He suffered a severe crush injury to his right knee with resultant traumatic patellar chondromalacia. There has been damage to the articular surface of the patella.
33 He has undergone four surgical procedures and numerous courses of injections in the hope that there will be cartilage regeneration.
Consequences of injury/loss of earning capacity
34 The defendant has conceded that the pain and suffering consequences of the injury 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. For that reason, I shall not go into detail as to those consequences. It suffices to say that he suffers regular pain in his knee. He requires an average of up to three Panadeine forte tablets per week and in addition, takes Panadol. He is unfit to engage in a range of physical activities.
35 It is conceded by the defendant that Mr Karunaratne is unfit for work which involves him being on his feet for any substantial time and, as a consequence, is unfit for the type of employment that he had with the defendant prior to the injury. It maintains he is fit for a range of sedentary jobs.
36 The issue is whether he has established that he has suffered a 40 per cent loss of earning capacity calculated in accordance with s134AB(38)(e), (f), and (g) of the Act. Those sub-sections provide as follows:
“(e)where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), the Authority or self-insurer shall not grant a certificate under subsection (16)(a) and a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii)the worker (including a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;
(f)for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i)the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
(g)a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.”
37 Turning firstly to the calculation of the figure nominated in ss(38)(f)(ii), a document showing the earnings of three “comparable employees” was provided by the defendant and tendered.[5] The earnings of the three nominated employees differed in each year. There was no explanation for these variations.
[5]PCB 111.
38 Senior Counsel for Mr Karunaratne submitted, and I accept, that it was appropriate to look at the earnings of the first comparable employee to determine what Mr Karunaratne would have earned or been capable of earning from personal exertion during that part of the period within three years before and three years after the injury as most fairly reflects Mr Karunaratne’s earning capacity had the injury not occurred.
39 Counsel for the defendant submitted that I should adopt the average earnings of the three comparative employees.
40 Here, I am required to consider loss of earning capacity. I see no reason to refer to the lesser earnings of the second or third comparable employees. The defendant has put the three of them forward as “comparable”. I see no reason why the earnings of the first of those employees is not a fair guide as to Mr Karunaratne’s earning “capacity” but for his injury, especially where the defendant put forward no explanation as to why the three nominated employees earned differing amounts.
41 The three-year period following the injury ends at the end of July 2010. I note that the first comparable employee earned $68,295 in the 2010 financial year and $77,285 in the 2011 financial year.
42 If I adopted the 2010 income of $68,295 per annum, this would equate to $1,313 per week.
43 It was submitted by Senior Counsel for Mr Karunaratne that, to reach a more accurate twelve-month figure, I should take eleven months of the 2010 figure and one month of the 2011 figure, resulting in $69,630 per annum, or $1,339 per week. In the absence of evidence of the amount earned by the comparable employee in the month of July 2010, I do not consider I am entitled to do so.
44 Rather, I adopt the figure of $68,295 per annum ($1,313 per week) as the gross income referred to in ss(38)(f)(ii).
45 It follows that Mr Karunaratne must demonstrate that he is currently not capable of earning in suitable employment 60 per cent of that sum – that is, an amount of $40, 977 per annum ($788 per week).
46 The defendant tendered reports from rehabilitation consultants which it submitted established that Mr Karunaratne was capable of earning more. It submitted that he was capable of performing a number of sedentary or clerical jobs notwithstanding the injury to his knee.
47 A number of medical practitioners expressed views on the type of work that Mr Karunaratne was capable of performing.
48 In February 2008, Mr Karunaratne’s then general practitioner, Dr Kertsman, referred him to an orthopaedic surgeon, Mr Bruce Love. Mr Love reported back to him, indicating that he considered Mr Karunaratne was suffering an extensive right knee injury which would need continuous conservative treatment and would limit his physical activity at work to leave only a purely clerical capacity to be within his limits.[6] No report was tendered from Mr Love, but his views are contained in Dr Kertsman’s report of April 2009 which was tendered without objection. These views date back more than five years and pre-date the more recent surgical procedures. I place more weight on more current opinions.
[6]PCB 36
49 In July 2010, Mr Karunaratne’s physiotherapist, Ms Freeman, reported that he could not:
(a)stand for periods greater than 20 to 30 minutes;
(b)sit at a desk with his knee flexed at 90 degrees for more than 10 minutes;
(c)walk more than 100 metres;
(d)climb stairs;
(e)twist while standing;
(f)squat;
(g)kneel;
(h)jump or run
as a consequence of knee pain.
50 In August 2010, Ms Freeman reported that Mr Karunaratne was unable to sit or stand for more than 30 minutes and that his knee problems were exacerbated by activities including prolonged standing, sitting, walking, climbing stairs, squatting and twisting.[7]
[7]PCB 61
51 In November 2012, Mr Young reported that:
“However, his ongoing anterior knee pain is preventing him from returning to work, any labouring or physically active capacity, but I believe he is fit for office work or supervisory work.”[8]
[8]PCB 50
52 Mr Young did not express a view as to the hours per week Mr Karunaratne was capable of working.
53 Mr Karunaratne’s current general practitioner, Dr McKenna, prepared reports in August 2012 and May 2013, which were tendered. He also gave oral evidence and was cross-examined. In his report of August 2012, he stated that he noted that he was currently certifying Mr Karunaratne as fit for clerical duties with 10 to 15 hours per week. He said:
“At this stage I am sure he can do clerical duties, but I am unsure if this would eventually be full time.”[9]
[9]PCB 68
54 In May 2013, Dr McKenna reported that he was aware that Mr Karunaratne had found a clerical job with a travel agent, working 3 hours per day, five days per week. He did this with some difficulty, walking to and from the office, and climbing stairs to use the bathroom. He noted that he could not sit at his desk for extended periods of time. He reported:
“I consider him fit to perform the types of duties he is currently doing; i.e. clerical work, but on a part time basis only. It is also possible that he will deteriorate with time, with the development of arthritic changes due to the injury, and that he may require arthroplastic (sic) surgery to the knee in the future.”
55 Dr Robyn Horsley, occupational physician, examined Mr Karunaratne at the request of his solicitors in October 2012. She reported, at that time, that his sitting tolerance was 30 minutes. She noted that he was then working at a travel agency for 12 hours per week and thought that that type of role was appropriate for his knee condition.[10]
[10]PCB 86
56 Mr Clive Jones, orthopaedic surgeon, examined Mr Karunaratne at the request of the defendant’s solicitors in June 2009 and again in June 2013.
57 In 2009, he noted that he was working on light duties but was struggling with his work. He noted he was able to sit for three-quarters of an hour in comfort but it was difficult for him to stand for more than 10 minutes at a stretch. He doubted whether he would ever get off his then current light duties.[11]
[11]DCB 12
58 In June 2013, he noted that Mr Karunaratne was working at the travel agency for 3 hours per day and that he had reported that this was about as much as he was able to do. Mr Jones considered the prognosis in the longer term was poor, degenerative changes in the joint would slowly increase and that he may well end up with a total knee arthroplasty. Mr Jones considered that he would continue to be restricted in his work in regards to heavy continuous use of his right leg, particularly pulling, pushing and kneeling.[12]
[12]DCB 17
59 Dr Chris Baker, a specialist in occupational medicine, examined Mr Karunaratne in May 2010 and May 2013. On 28 June 2010, he reported that he had observed a DVD depicting Mr Karunaratne. He stated that he appeared fit, with no evidence indicating that he had an ongoing right knee problem. He thought, after viewing that DVD, that he probably had the capacity to undertake his pre-injury employment.[13]
[13]PCB 26
60 In May 2013, Dr Baker, by that date, no longer considered that Mr Karunaratne had the capacity to undertake his pre-injury duties but thought he could undertake work which did not require prolonged standing or prolonged walking and was mainly sedentary, with the opportunity of changing his position at will and with no kneeling, crouching or squatting.[14] Dr Baker considered that he was, at that time, working in a sedentary role and able to change his position and saw no reason why he should not work full time hours in a sedentary role.[15]
[14]DCB 32
[15]DCB 33
61 I conclude that Dr Baker’s views were at least in part and possibly largely based upon his viewing of the DVD film referred to. Without any explanation, no such film was played to the Court or tendered by the defendant. It is likely that the defendant made a strategic or tactical decision not to do so. As a consequence, I consider I should place little weight on the views of Dr Baker when some portion of his views are based upon material deliberately not tendered in evidence. I infer that the film would not have advanced the defendant’s case.
62 Mr Anthony Buzzard, general surgeon specialising in spine and upper and lower limbs, examined Mr Karunaratne in August 2011 at the request of the defendant. He also concluded that he was unfit for his previous employment but thought that he could carry out “suitable employment” if such employment was made available to him. He drew attention to his pre-injury work history which had involved a lot of desk work and console operations.[16] Whilst Mr Buzzard did not describe what he meant by “suitable employment”, I infer that he considered at that time that Mr Karunaratne could perform work at a desk.
[16]DCB 47
63 In his affidavit sworn 6 March 2012 (prior to Mr Karunaratne obtaining work with the travel agent), Mr Karunaratne swore that he was unfit for any manual work and believed that he would find it difficult to do full-time light work if it involved prolonged walking, sitting or standing.[17] I understood from this that the prolonged walking might be a reference to getting to and from work, whilst the reference to prolonged sitting would be to desk work. He stated that he had intended, but for the injury, to continue working for the defendant.[18] I accept Mr Karunaratne’s evidence that his knee causes additional problems for him if he sits for lengthy periods. I accept that his current job with Bliss, and most clerical positions, would involve him being seated for most of the working day. I accept that he was capable of working 15 hours per week. He stated that he was at present able to commence work at varying times to suit himself. He did not think he would be able to commit to attending at work regularly or punctually because of his knee pain.
[17]PCB 23
[18]PCB 24
64 I accept that Mr Karunaratne is unable to keep his knee bent for any period of time.[19] Mr Karunaratne’s evidence was that he would have difficulty working more than 15 hours per week because of his knee. On balance, I accept that that is probably the case, although, on the basis of the evidence of Dr McKenna, he may be able to work 20 hours per week.
[19]Transcript (“T”) 37-38
65 Dr McKenna has been Mr Karunaratne’s general practitioner since November 2010, when he took over following the death of Dr Kertsman.
66 Since late 2012, he has certified Mr Karunaratne as being fit for clerical duties for 15 hours per week. He continues to provide certificates to that effect. He agreed that the certification for 15 hours per week had been made at Mr Karunaratne’s request.
67 Dr McKenna agreed that sitting for lengthy periods would be a problem for Mr Karunaratne. He explained how the joint would tend to stiffen with rest, after sitting for a time. He recalled Mr Karunaratne telling him that after 15 hours, he had “had enough”.
68 Dr McKenna was asked whether he would be prepared to certify him for 20 hours’ clerical work per week if asked by Mr Karunaratne to do so. He stated that he would be prepared to do so and would see how he went. He conceded that he could not emphatically say that, if at some point a graduated return to longer hours was available, Mr Karunaratne would not get to full-time sedentary duties in the right environment. He agreed that, to an extent, he would be governed by what Mr Karunaratne reported about how he was coping with any increased hours of work.
69 I accept that there is a real prospect that Mr Karunaratne’s knee symptoms will worsen as time passes rather than improve. There is a real prospect that he may require a total knee arthroplasty or a total knee replacement. Dr McKenna stated that he would not be surprised if this happened between ten and fifteen years from now but it would depend on the level of pain and at what point this pain became unmanageable.
70 Dr McKenna was of the view that Mr Karunaratne was a person with an over-optimistic personality with a tendency to play down symptoms. Dr McKenna had no doubt that he was in pain on a daily basis.[20]
[20]T83
71 Dr McKenna considered that Mr Karunaratne’s complaints of knee pain after he had been sitting for any period of time and the need to get up and move the joint was consistent with the type of degenerative change that had been noted in his knee.
72 Dr McKenna had performed a full examination of Mr Karunaratne’s knee in May 2013 and noted very marked patellofemoral crepitus, indicating severe roughening of the surface of the patella and grinding of the patella against the head of the femur. He said that pain will get worse in time. Dr McKenna stressed that clerical duties should not, in Mr Karunaratne’s case, involve any lifting, squatting, kneeling, carrying of heavy objects or use of stairs.
73 Taking all of the evidence referred to into account, I consider that Mr Karunaratne is fit only for sedentary light employment – effectively, desk work. I consider that it is unlikely that Mr Karunaratne could work more than 20 hours per week performing desk-based duties by reason of his knee injury. Even then, he would require regular breaks where he could move from his desk, exercise and stretch his leg.
74 Mr Karunaratne’s evidence was that he was currently being paid $10 per hour. However, that does not mean that he has no capacity to earn more than that in suitable employment (as that term is defined in s5 of the Act).
75 Mr Karunaratne had applied unsuccessfully for a number of jobs before obtaining employment with Bliss. I do not consider that he is only capable of work in a travel agency or that all travel agency jobs pay as little as $10 per hour.
76 The defendant relied on evidence of Mr Janides, an occupational rehabilitation consultant, that the basic hourly rates for travel consultants were:
· First year – $16.53 per hour
· After 12 months – $17.12 per hour; and
· Senior Travel Consultant – $18.11 per hour.[21]
[21]PCB 52
77 Somewhat confusingly, Mr Janides further reported that the “median” wage for a travel consultant was from $39,396 to $52,431, presumably per annum.[22] This range bears no resemblance to the hourly rates previously referred to. Further, I do not understand the concept of a median figure being a range of figures. Rather, a median is a figure in the centre of a number of individual figures. Further, the facts are that Mr Karunaratne is aged fifty-three, he has relatively little experience in the travel industry and he would only be able to work limited hours. In those circumstances, it is unrealistic to view him as likely to be employed at anything other than at the lower end of the range of hourly rates applicable.
[22]PCB 53
78 Mr Janides attached a number of advertisements for travel consultants to his report. These related to jobs for experienced consultants (which Mr Karunaratne is not) and for full-time positions.
79 In a further report from Mr Janides dated 4 July 2013, he identified pay rates for a number of sedentary positions –
· Office/General Clerk – median salary of $43,000 (full time)
· Import/Export Clerk – hourly rates of $21.35 to $22.80
· Call Centre operator – $48,500 to $52,000 (full-time shift work).
80 An earlier report of Ms Monica Dennis (rehabilitation consultant) dated September 2009 identified average weekly earnings for clerical and administrative workers at $908 per week ($47,216 per annum) for a full-time position.
81 I consider that each of the hourly rates and annual rates of pay referred to in those reports indicate that Mr Karunaratne is most unlikely to earn $788 per week ($40,977 per annum) given my finding that he is unlikely to be able to work more than 20 hours per week as a consequence of his knee injury.
82 There was no submission made by the defendant that ss(38)(g) had application to Mr Karunaratne’s situation, and I do not consider that it has.
83 Accordingly, I find that Mr Karunaratne has established that he has suffered a loss of earning capacity of 40 per cent or more when calculated in accordance with s134AB(38) of the Act.
Conclusion
84 For the reasons expressed above, there will be leave, pursuant to s134AB(16)(b) of the Act, for Mr Karunaratne to bring a proceeding for the recovery of pecuniary loss damages for injuries suffered in the course of his employment with the defendant on or about 30 July 2007.
85 I shall hear the parties in relation to any consequential orders sought.
- - -
0
1
0