Keating v Black Mount Pty Ltd
[2017] VCC 359
•7 April 2017
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-04460
| TONY FRANCIS KEATING | Plaintiff |
| v | |
| BLACK MOUNT PTY LTD (ABN 18 084 689 056) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | JUDGE CARMODY | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 15 and 16 March 2017 | |
DATE OF JUDGMENT: | 7 April 2017 | |
CASE MAY BE CITED AS: | Keating v Black Mount Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 359 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right shoulder – pain and suffering damages and loss of earning capacity damages – whether the injury satisfies the threshold test for loss of earning capacity – whether the consequences, as a result of the right shoulder injury, meet the statutory test for pain and suffering certification
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health [2008] VSCA 153; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Judgment: Plaintiff granted leave to bring a claim for damages for pain and suffering only. The application for leave to bring a claim for damages for loss of earning capacity is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr M Fogarty | Arnold Dallas & McPherson |
| For the Defendants | Mr A J Moulds QC with Ms B A Myers | Hall and Wilcox |
HIS HONOUR:
Introduction
1 This application is brought by Originating Motion dated 5 May 2016. The plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injury suffered by him in the course of his employment with the first defendant and, in particular, on 16 September 2013.
2 The plaintiff seeks leave to bring proceedings for pain and suffering and loss of earning capacity damages.
3 The plaintiff alleges that in the course of his employment with the first defendant on 16 September 2013, he injured his right shoulder.
4 The following evidence was adduced or tendered during the hearing of his application:
·The plaintiff gave evidence and was cross-examined
·The plaintiff tendered the following documents:
§Exhibit “A”, a bundle of tax invoices relating to the plaintiff’s income as a taxi driver between January 2016 and March 2017;
§Exhibit “B”, the Plaintiff’s Court Book (“PCB”), pages 34 to 85, inclusive, and pages 90 to 105 inclusive.
·The defendants tendered the following documents:
§Exhibit 1, the Defendants’ Court Book (“DCB”), pages 1 to 7, pages 19 to 72 and 90 to 91;
§Exhibit 2, three surveillance videos, covering the dates of 28 July 2016, 30 July 2016, 6 August 2016, 9 August 2016 and 11 August 2016.
5 This application is brought under the definition of “serious injury” contained in ss(37)(a) of the Act, which requires the plaintiff to prove that he has suffered permanent serious impairment or loss of body function. The loss of body function in this case is to the right shoulder.
6 Mr Moulds QC, on behalf of the defendants, identified the issues in this application as follows:
(a)The plaintiff has had surgery on his right shoulder and made a good recovery, and retained good function of his right shoulder;
(b)The plaintiff retains his ability to engage in most of his sporting and daily activities;
(c)The pain and suffering aspect of this application is a range case;
(d)In respect of the claim for loss of earning capacity, the defendants rely on the plaintiff’s ability to work full time;
(e)The plaintiff has a capacity to earn more than 60 per cent of his pre-injury earning capacity.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 16 September 2013;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff was born in November 1967 and is currently forty-nine years old.[3] The plaintiff was born and raised in the Bendigo area. He is a married man with two children, now aged fifteen and twelve years respectively.[4]
[3]PCB 34
[4]PCB 34
11 The plaintiff was educated at St Liborus Primary School and completed his education at Eaglehawk Secondary College. He attended TAFE for a twelve-month course. In 1985, he commenced as a driver with Buttercup Bakery, and remained in that employment until 1999.[5]
[5]PCB 34
12 On 30 July 1999, the plaintiff commenced employment with the first defendant as a driver. The plaintiff remained in that employment until November 2015.
The injury with the First Defendant employer
13 The plaintiff was employed as a driver and delivery person for the first defendant. His employment involved him travelling to the places of Kerang, Bendigo, Maryborough, and all towns in between. His role was to deliver 15-kilogram bottles of water to various clients of the first defendant. At the end of each day he was required to return to the first defendant’s premises. In total, the plaintiff would deliver in the order of three hundred bottles of water per week.
14 The plaintiff was injured on 16 September 2013 in the following circumstances. The plaintiff deposed as follows in his affidavit sworn on 26 May 2016:
“The Respondent operates from a large industrial sized shed. At the front of the shed is a roller door which had to be manually lifted and dropped by the winding up [of] a heavy chain which was probably about 24 foot in length. The forklift was located in the shed and I was required to load my truck using the forklift each night at the conclusion of my delivery duties. In the summer season I often loaded during the day in addition. It was a huge effort to pull on the chain in order to lift the roller door. The first half of the way up I could manage, but after that I was regularly straining as I was virtually pulling the entire weight of the roller door.
On 16 September 2013 at about 3:15 p.m. I arrived back at the Bendigo depot and as usual I strained pulling the chain of the roller door in order to drive my truck in for loading. When I was pulling the chain I heard a pop in my right shoulder followed by a sharp pain. Initially I hoped and believed I had suffered a minor strain and that I would recover. I continued working. That evening and the following evenings I treated my right shoulder myself with ice or applied a heat pack. The pain became constant. On each working day I started work okay, but by lunch time I was really struggling to lift.”[6]
[6]PCB 36-37 at paragraphs [9] and [10]
15 The defendants accept that the injury occurred in the manner described by the plaintiff. The plaintiff did not report the injury to his place of work until early January 2014.[7] In the period in between the date of injury and January 2014, the plaintiff continued to work with the pain to his right shoulder.
[7]PCB 37
Medical treatment
16 After the initial injury to the plaintiff’s right shoulder, he continued to work for the first defendant. He attended upon the long-term treating chiropractor, Dr Alan Bruce, but was informed by Dr Bruce that this was not his area of expertise. He also attended upon Mr Brendan Lloyd for two sessions. Ultimately, the plaintiff first consulted his general practitioner, Dr Rosario Palaypayon in March 2014.[8] The plaintiff was referred to ultrasound of the right shoulder in March 2014.
[8]PCB 48 and PCB 37 at paragraph [11]
17 The plaintiff was then referred to orthopaedic surgeon, Dr Simon Locke. He first consulted with Dr Locke on 7 April 2014.[9] The plaintiff had an MRI scan and x-ray of his right shoulder on 11 April 2014.[10] On 16 April 2014, the plaintiff underwent an intra-articular injection, under ultrasound, at the hands of Dr Locke. Dr Locke noted that, under the ultrasound testing, the intra-articular full-thickness tear of the supraspinatus tendon was 0.9 centimetres.[11] Dr Locke continued to treat the plaintiff for his right shoulder injury until August 2014.
[9]PCB 37
[10]PCB 100
[11]PCB 69
18 The plaintiff first saw Mr Brendan Soo, orthopaedic surgeon, on 19 August 2014.[12] On 1 October 2014, the plaintiff underwent surgery to his right shoulder at the hands of Mr Brendan Soo.[13] A repair of the plaintiff’s right supraspinatus tendon was performed. Further, a subacromial arthroscopy and a bursectomy were performed to the right shoulder. There was clearing of bone debris and haemostasis in the course of this operation.[14]
[12]PCB 38 at paragraph [14] and PCB 55
[13]PCB 57 and PCB 38 at paragraph [14]
[14]PCB 57
19 The plaintiff resumed work with the first defendant on 1 March 2015 as a driver.[15] He commenced work on light duties and had a restriction of lifting of 7 kilograms. He was assisted with a jockey in his capacity as a driver.
[15]PCB 38 at paragraph [15]
20 The plaintiff suffered carpal tunnel injuries to his hands, and a full repair to his left hand has taken place.
21 The plaintiff’s employment was terminated on 3 November 2015.
22 The plaintiff continues to be treated conservatively by his general practitioner and he takes Panadol and Advil pain-relief medication on a daily basis to manage his right shoulder pain. He also retains a rubber-band exercise program to strengthen and maintain the flexibility within his right shoulder.
Medical opinions
The Plaintiff’s treating doctors
Dr Rosario Palaypayon, general practitioner
23 Dr Rosario Palaypayon prepared a total of six reports relating to the plaintiff. Those reports were dated 29 May 2015 (two reports), 20 July 2015, 27 November 2015, 13 November 2016 and 13 January 2017. One of the 2015 reports related to a mental health treatment program for the plaintiff. I note that the plaintiff makes no claim for any psychiatric or psychological issues in this case, relating to this accident.
24 In her report dated 13 November 2016, Dr Palaypayon opined that the plaintiff had regained a good range of movement and strength in his right shoulder since the surgery. She noted he still experiences some pain in his neck area occasionally. He was almost back to pre-injury work capacity, except for heavy lifting and above shoulder movement restrictions.[16] She noted that the plaintiff was then working as a taxi driver for thirty hours per week and that his injury had stabilised.
[16]PCB 50
25 Dr Palaypayon, in her report dated 13 January 2017, stated as follows:
“He suffered from persistent right shoulder pain with limited range of movement and associated right arm and neck pain due to supraspinatus tendon tear and suddeltoid (scil subdeltoid) bursitis from his work related injury which was surgically treated by Brendan Soo in October 2014.”[17]
[17]PCB 52
26 Dr Palaypayon noted that the plaintiff had gained a good range of motion and strength in his right shoulder but he continued to experience on-and-off pain with above-shoulder movement, as well as the right-sided neck pain.
27 In relation to the plaintiff’s work capacity, Dr Palaypayon stated:
“There is a potential for Mr Tony Keating’s current capacity to increase.
He has been fit for work except with the following restrictions:
no heavy lifting ( nothing above 7 kls)
no above shoulder movement
limited to 30 hours a week ( 10 hours/day, rest day in between).”[18]
(sic).
[18]PCB 53
Mr Brendan Soo, orthopaedic surgeon
28 Mr Brendan Soo prepared a total of eight reports or letters in respect of this claim. They were dated 19 August 2014 (two reports), 21 August 2014, 1 October 2014, 7 October 2014, 12 November 2014, 7 January 2015 and 3 March 2015.
29 Mr Soo, in his report dated 7 January 2015, noted that the plaintiff had regained a full range of motion and demonstrated full supraspinatus strength in his right shoulder. However, Mr Soo was of the opinion that the plaintiff ought not return to work until February 2015.[19]
[19]PCB 61
30 In the report of 3 March 2015 (final report), Mr Soo noted the following:
“He continues to have a full range of motion and good strength of his supraspinatus tendon. He does have some fatigue of the muscle with the heavier bands which suggest that there is further strengthening to come.
…
He has expressed that he doesn’t have a wish to return to the heavy labouring aspect of his work and I think this is wise given that he’s already required a rotator cuff repair at the age of 47 (sic).”[20]
[20]PCB 62
Dr Simon Locke, sports and exercise physician
31 Dr Locke prepared a number of reports relating to the plaintiff’s condition prior to the surgery by Mr Soo. Mr Locke’s last consultation with the plaintiff was on 4 June 2014.[21] Mr Locke diagnosed the plaintiff as suffering a full-thickness tear of his right supraspinatus tendon which consistently measured 1.5 centimetres through various imaging modalities. Dr Locke’s medical opinions are considerably outdated and, due to the length of time between his last consultation with the plaintiff and the present, are of little assistance to me in forming a view about the plaintiff’s current medical condition.
[21]PCB 72
Dr Alan Bruce, chiropractor
32 Dr Bruce prepared a report dated 9 September 2015. Dr Bruce has been treating the plaintiff from January 1999 for neck discomfort and sub-occipital pain. The last visit by the plaintiff to Dr Bruce in respect of his neck pain was in 2012, prior to the accident to the right shoulder.
33 After the accident, the basis of this application, the plaintiff attended upon Dr Bruce on 2 May 2014.[22] The plaintiff continued to see Dr Bruce through to 2015. Dr Bruce’s opinion was:
“The supra scapular and the cervico-thoracic musculature stiffness is I believe part and parcel of the right shoulder injury.”[23]
[22]PCB 83
[23]PCB 84
Mr Chris Adkins, physiotherapist
34 Mr Adkins prepared a report dated 14 September 2015. The plaintiff last visited Mr Adkins on 29 April 2015 for treatment. At the time of his report, the treating physiotherapist stated that the plaintiff’s occupation of truck driving was fine in relation to his right shoulder injury.[24]
[24]PCB 85
Dr Graeme Doig, orthopaedic surgeon
35 Dr Doig prepared a report dated 1 August 2016. He had also prepared a report for the defendants dated 30 September 2015. In the earlier report, Dr Doig was of the opinion that the operation to the plaintiff’s right shoulder had settled the pain in the shoulder itself, but that the plaintiff was suffering more problems in the right side of his neck. He concluded, at that time, that the plaintiff had suffered an aggravation of cervical spine degenerative changes.[25]
[25]DCB 20-21
36 Dr Doig, in his later report, noted that the plaintiff was using analgesic medication to control the pain. He noted that the plaintiff was self funding chiropractic and massage treatment.
37 Dr Doig diagnosed the plaintiff as having:
“… suffered a tear of the rotator cuff in the dominant right shoulder and an aggravation of a pre-existing degenerative cervical spine as a result of his work related injury.”[26]
[26]PCB 92
38 In Mr Doig’s opinion, Mr Keating was fit for occupations with the previous restrictions in place. He is not able to return to his pre-injury position due to the heavy physical nature of the job. He noted that the plaintiff will likely be left with residual chronic right-sided neck and dominant right shoulder pain, and the plaintiff will suffer from reduced function in the right shoulder in the long term, with limited flexibility and reduced lifting capacity and tolerance.[27]
[27]PCB 93
Dr David Murphy, consultant physician in rehabilitation medicine
39 Dr Murphy prepared a report dated 25 November 2016 for the plaintiff’s solicitors. Dr Murphy diagnosed a supraspinatus tendon tear to the right shoulder, which has been treated surgically. He also diagnosed the plaintiff as suffering from cervical spine dysfunction. Dr Murphy noted that the left Carpal Tunnel Syndrome had been treated surgically and that there was an expectation that the right Carpal Tunnel Syndrome may require surgery in the future. Dr Murphy’s opinion was that the plaintiff will suffer persisting pain and dysfunction due to all of those diagnoses.[28]
[28]PCB 98
40 I note that Dr Murphy was of the opinion that the plaintiff’s work as a taxi driver was appropriate, but that he should limit his taxi driving to 24 hours per week. Dr Murphy’s main concern was the long shifts worked by the plaintiff as a taxi driver.
The Defendants’ medical opinions
Mr Jonathan Hooper, orthopaedic surgeon
41 Mr Jonathan Hooper prepared a report for the defendants dated 23 June 2015. Mr Hooper accepted that the right shoulder injury was the result of the plaintiff’s work accident in September 2013.[29] Mr Hooper’s opinion was that the plaintiff could return to alternative light work, and do so on a full-time basis after the carpal tunnel operation had been completed. Mr Hooper’s opinion was that the plaintiff could not return to heavy work or to overhead work. He noted that the plaintiff was a motivated man who would not have any trouble finding alternative work.[30]
[29]DCB 2
[30]DCB 3
Associate Professor Anthony Buzzard, general surgeon
42 Associate Professor Buzzard prepared a report dated 12 January 2016. Mr Buzzard noted that the plaintiff had given him a history of right shoulder troubles and complaints prior to the right shoulder injury on 16 September 2013. Associate Professor Buzzard noted that the plaintiff told him that he had been receiving treatment on a regular basis to the right shoulder prior to the 16 September 2013 accident.
43 I note in the report of Dr Alan Bruce, the person referred to as giving the treatment to the plaintiff in Associate Professor Buzzard’s report, did not refer to any treatment to the right shoulder of the plaintiff prior to 16 September 2013. I conclude that there has been a mistake made by Associate Professor Buzzard, or the plaintiff, in giving his history to Associate Professor Buzzard in relation to treatment from Dr Alan Bruce to his right shoulder prior to September 2013.
44 Associate Professor Buzzard did not think that it was appropriate for the plaintiff to continue, at the present time, with any ongoing treatment to his right shoulder by either a chiropractor or a massage therapist.[31] In his opinion, the plaintiff suffered from a long history of marked limitation of movement in his right neck and that that restriction was not related to his employment.[32]
[31]DCB 28
[32]DCB 28
Dr Peter Boys, orthopaedic surgeon
45 Dr Peter Boys prepared a medico-legal report for the defendants dated 1 September 2016. Dr Boys noted that the plaintiff described persistent pain around the posterior aspect of his right shoulder trapezius and scapula. An examination of the plaintiff’s shoulder movements revealed a reduction in abduction and internal rotation in respect of the right shoulder, relative to the left shoulder.[33] Dr Boys noted:
“Mr Keating manifests limitation of right shoulder abduction and internal rotation at this time consistent with a history of right rotator cuff tear and subacromial bursitis with operative decompression and repair.”[34]
[33]DCB 41
[34]DCB 42
46 Dr Boys’ diagnosis was that the plaintiff suffered from a tear to the right supraspinatus with subacromial bursitis to the right shoulder.
47 Dr Boys’ opinion was that the plaintiff was undertaking suitable employment as a taxi driver and noted that he was working thirty hours per week. In Dr Boys’ opinion, the plaintiff had a physical capacity to work full time as a taxi driver.[35]
[35]DCB 44
Dr Malcom Brown, occupational physician
48 Dr Brown prepared a report for the defendants dated 24 October 2016. On examination, Dr Brown found that the plaintiff had an excellent range of movement, with just a little restriction on full elevation.[36] Dr Brown was of the view that the plaintiff could work as a taxi driver, a light courier, or sales representative. He also noted that the plaintiff had the capacity to work as a storeman, with weight and above-shoulder height work restrictions. In conclusion, Dr Brown noted:
“With regard to work, Mr Keating would be well advised not to return to pre-injury duties due to the heavy lifting required. He has capacity to work as a taxi driver on a full-time basis or do any of the jobs in the vocational assessment report full-time, provided very heavy stores work is avoided.”[37]
[36]DCB 47
[37]DCB 49
The Plaintiff’s credit
49 In the course of this proceeding, there was no direct attack on the plaintiff’s credit. The main approach by the defendants in respect of the plaintiff’s activities was that he could currently perform most activities that he could perform prior to the injury in September 2013.
50 In particular, the plaintiff was shown surveillance film of him umpiring a football game between Kangaroo Flat and Castlemaine. The film showed the plaintiff actively involved in field umpiring for an Australian Rules football game. This involved all movements of his right shoulder, on the face of it, in an unrestricted manner. The plaintiff admitted, and had given history to doctors during the course of his treatment and examinations leading up to this proceeding, that he was continuing to umpire Australian Rules football, and that he undertook all necessary tasks to do so. These tasks include throwing the ball up and waving his arm in directions for demonstration of decisions, such as playing on, a mark, or indicating a score to a goal umpire.
51 During the course of his evidence, the plaintiff freely admitted that he could do all of the things involved in umpiring, and that he needed to do the umpiring to maintain his personal stability. He also used it as a reason to remain very fit, which he has been throughout his lifetime.
52 In assessing the credibility of a witness, the Court has to be careful not to be overwhelmed by what is shown in surveillance film and to carefully analyse the impact upon the plaintiff’s credit that a movement demonstrated in such a film, would have on a plaintiff’s credibility.[38]
[38]See Church v Echuca Regional Health [2008] VSCA 153
53 I accept that the plaintiff gave a reasonable and honest account of himself in the course of his evidence. He has freely admitted that he is involved in umpiring football and what that activity involves. It is clear, on an observation of the film, that he obviously enjoys umpiring football, and that is a good thing for him. The plaintiff has continually tried to obtain employment and currently has employment as a part-time taxi driver.
54 I accept the plaintiff is an honest witness, doing his best to describe his symptoms and consequences of the right shoulder injury to him.
Consequences of the right shoulder injury to the Plaintiff
55 The plaintiff has sworn two affidavits dated 26 May 2016 and 14 March 2017 in support of his application. The plaintiff was cross-examined and re-examined in the course of this hearing. The plaintiff set out the consequences of his right shoulder injury, both in those affidavits and in his evidence.
Sleep
56 In his first affidavit, the plaintiff stated:
“I continue to use a heat pack on my right shoulder and the right side of my neck. At night it takes me a long time to get comfortable. I try and sleep on my back or on my left side. At times I sleep in a recliner chair.”[39]
[39]PCB 40 at paragraph [22]
57 In his later affidavit, the plaintiff stated that:
“I have had to alter the way I sleep as a consequence of my right shoulder injury. I now sleep on my left side or on my back to avoid aggravating my right shoulder during the night.”[40]
[40]PCB 41C at paragraph [11]
58 I accept that the plaintiff’s sleep has been affected as a result of his right shoulder injury and that this is a significant consequence for him.
Pain
59 The plaintiff gave evidence that he continues to suffer from ongoing fluctuating right shoulder pain and tightness.[41] He described the pain as extending into the right side of his neck. The right shoulder pain is made worse by activities involving him pushing, lifting, or carrying anything in his right arm.
[41]PCB 41B
60 The plaintiff has given a consistent history to all the medical practitioners who have either examined or treated him, that the right shoulder pain is a result of the accident in September 2013. The pain, despite the successful surgery to his supraspinatus tendon, continues to the current time. The plaintiff, in his evidence, described that his shoulder always felt heavy and, by that, he meant that it felt as though he was carrying a brick around on his shoulder.[42] He stated that he was always in pain.[43]
[42]Transcript (“T”) 14
[43]T14
61 I accept that the plaintiff suffers from constant pain to his right shoulder area, extending to his neck, which varies in its intensity from time to time. I accept that the experience of pain by the plaintiff is a very considerable consequence for him.
Medication
62 The plaintiff has given a history to doctors, and evidence in this case, that he takes Panadol or Advil for pain-relief medication. In his evidence, he stated that he takes Advil, which is an over-the-counter medication. He found that it was the best medication for his pain.[44] In his affidavit material, the plaintiff stated that he, on occasions, takes six Advil per day.[45] The fact that the plaintiff requires constant medication for pain relief is a very considerable consequence for him.[46]
[44]T33
[45]PCB 41B at paragraph [7]
[46]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592
Ongoing treatment
63 The plaintiff continues to see his general practitioner. He also receives some treatment from the chiropractor, which assists him in his pain relief. The plaintiff’s main ongoing treatment is the use of heat packs, which he describes as a bag of wheat which he puts in the microwave to heat it up.[47]
[47]PCB 41B-41C at paragraph [7]; T62
64 I accept that the plaintiff requires this ongoing minimal conservative approach to ongoing treatment. Nevertheless, the fact that he requires ongoing treatment to maintain his mobility and pain levels is a considerable consequence for him.
Activities of daily living
65 The plaintiff gave evidence that he has reduced his gardening activities as a result of the right shoulder injury. The plaintiff stated he is unable to do the heavier gardening duties, such as digging and weeding. His evidence was that his only role in the garden, nowadays, is to use the lawn mower to mow the lawns and that he refused to start the lawn mower with his right dominant hand.[48]
[48]T34
66 I accept that the plaintiff is limited in the amount of gardening activity he can perform at the family home as a result of his right shoulder injury. I accept, also, that the plaintiff is able to perform most of the household duties of cooking and cleaning to assist his wife with the general duties around the home. The limitation that he faces is getting things from higher up in the cupboards and other overhead activities.
Sport
67 The plaintiff clearly continues to umpire Australian Rules football. He is a regular field umpire and enjoys this activity. The training for it involves running, and he may cover as much as 14 kilometres during the course of a game.[49] The umpiring activity clearly requires arm movements to demonstrate a ruling or decision and, also, to throw the ball up in the air.
[49]T17
68 The plaintiff stated that as a result of his right shoulder injury, he is unable to play tennis with his daughter anymore.[50] He confirmed that his ability to play tennis with his children was also limited due to his right shoulder injury.[51] The plaintiff also stated that he sold his golf clubs as a result of his right shoulder injury. The reason for selling the golf clubs was that he was no longer able to play golf. I do not accept that golf was such a large part of his sporting activities that it amounts to a significant consequence for him.
[50]T11-12
[51]PCB 39
69 I accept the plaintiff has the ability to run the 12 kilometres in training for his umpiring duties on an individual basis. He also joins in with a group of umpires who conduct 3-kilometre runs.[52] The most significant consequence for the plaintiff in respect of his sporting activities is his inability to partake in a hit of tennis with his daughter.
[52]T56
Conclusion
70 In conclusion, I find that the plaintiff has satisfied the test required under the Act that the consequences of pain and suffering to him as a result of his right shoulder injury are very considerable and more than significant or marked. In taking into account a possible range of injuries and consequences, the plaintiff has satisfied the test that the consequences for him are “very considerable”.
71 The plaintiff is granted leave to commence proceedings for the recovery of damages for pain and suffering as a result of his industrial accident on 16 September 2013.
Loss of earning capacity
72 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, he must establish that:
(a)at the date of the hearing, he has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b)after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
73 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i)“without injury” earnings; and
(ii)“after injury” earnings.
74 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a 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 had the injury not occurred.
75 The parties agree that the “without injury” earnings of the plaintiff are $1,088 gross per week. The agreed 60 per cent level of the “without injury” earnings would be $653 gross per week.
76 It is accepted by both parties in this case that the “after injury” earnings, based on the best month of earnings by the plaintiff, was $518 gross per week. The “after injury” earnings are based on a 30-hour per week part time or casual taxi driving employment.
77 It is accepted by both parties that 40 hours of taxi driving per week at the same rate of earnings that the plaintiff currently enjoys, would result in a gross weekly income of $692.
78 The dispute in respect of the loss of earning capacity for the plaintiff is whether he is exhausted at 30 hours of casual work per week. Alternatively, he has the capacity to work 40 hours per week. In his evidence, the plaintiff was asked about whether he could work more than 30 hours per week as a taxi driver. His response was:
“I can’t say that, my doctor says that.”[53]
[53]T24, L12-13
79 The plaintiff then went on to give evidence that he had had a number of accidents in the taxi and as a result of that, his doctor would not allow him to drive for more than 30 hours per week. I note that in the general practitioner’s reports, she never refers to the plaintiff having these accidents, nor has that been the reason for him being only able to work for 30 hours per week.
80 The plaintiff stated that he worked as a taxi driver on Sunday, Monday and Wednesday nights. He was then asked about working taxi shifts on a Friday and Saturday night. The plaintiff responded as follows:
A: “The biggest problem I have is because I’m new to the taxi industry, I have to wait – I have to wait for a space to come up, so, basically, all the good shifts are taken, so I have to wait for just one of those people either to retire or die and then I’ll get my foot in the door.
Q: So the reason you’re not working the busier shifts is because the shifts aren’t available to you?---
A: That’s right, yep.”[54]
[54]T42, L17-24
81 The plaintiff was later asked about his willingness to drive taxis. The plaintiff’s evidence was as follows:
Q: “So if the taxi driving was available to you there’d be no reason why you wouldn’t be able to work on a Saturday and a Sunday?---
A: I would take any shift that I was offered.
Q: That would include Saturday, Tuesday, Thursday, Friday but they’re just not being offered to you?---
A: Yeah, that’s right, yep, yeah. As I’ve said it’s just a waiting game cause the problem with taxi driving is the blokes that have been there, have been there forever and they’re not going anywhere and I’ve just got to wait me turn.”[55]
(sic).
[55]T45, L18-26
82 From the plaintiff’s evidence, I conclude that he thinks he is able to work the full 40 hours per week and that if he were full time, the remuneration level of the shifts would be greater than his current shifts. The necessary conclusion from that is that his gross weekly income would be at least $692, if not greater.
83 The medical opinions in relation to the plaintiff’s capacity to work are mixed, but generally, have the same conclusion. I have previously dealt with the medical opinions in respect of the plaintiff’s condition.
84 The plaintiff’s general practitioner, Dr Palaypayon, states that the plaintiff was working to the limit of his current work capacity.[56] She goes on to say that there is potential for the plaintiff’s current work capacity to increase. The only limitation she had on his work was no heavy lifting; that is, above 7 kilograms, and no above-shoulder movement. She then limited work to 30 hours a week, 10 hours a day, with a rest day in between.[57]
[56]PCB 52
[57]PCB 53
85 Mr Soo, the orthopaedic surgeon, stated that as long ago as March 2015, the plaintiff was able to return to performing light duties. The fact is, the plaintiff did return to light duties with the first defendant and maintained a full shift, with the assistance of a jockey.
86 Dr Graeme Doig was of the opinion that the plaintiff was fit for all the occupations with the previous restrictions in place, which related to weight and overhead movements.[58]
[58]PCB 93
87 Dr Boys noted that the plaintiff was in suitable employment as a taxi driver and was of the opinion that the plaintiff could work full time as a taxi driver and had the physical capacity to do so.[59]
[59]DCB 43-44
88 Dr Malcolm Brown, in his report, stated that the plaintiff had the capacity to work as a full-time taxi driver, or to do any of the jobs in the Vocational Assessment Report full time, provided that heavy stores work was avoided.[60]
[60]DCB 49
89 The following occupations were identified as appropriate in the Vocational Assessment Report referred to by the doctors:
(a) taxi driver, $850 gross per week;
(b) bus driver, $1,200 gross per week;
(c) forklift driver, $981 gross per week;
(d) sales representative, $1,197 gross per week; and
(e) delivery driver or a van or car, light items, $827 gross per week.[61]
[61]DCB 59
90 I accept that the plaintiff, based on his own evidence and the evidence of the medical practitioners in respect of the plaintiff’s work capacity, could work full time, at least as a taxi driver and as a light delivery van driver. Each of the gross incomes in respect of those occupations exceeds the 60 per cent figure of $653 gross per week.
Conclusion
91 The plaintiff has failed to establish that he has suffered a loss of earning capacity which is productive of a financial loss of more than 40 per cent of his “without injury” earnings figure. The plaintiff has the capacity to work full time in light employment, such as a taxi driver or delivery driver.
92 The plaintiff’s application for loss of earnings capacity certification is dismissed.
93 I will hear the parties on costs.
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