Kindred v State of Victoria, Department of Sustainability
[2011] VCC 289
•23 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01288
| DAMIEN KINDRED | Plaintiff |
| v | |
| STATE OF VICTORIA, DEPARTMENT OF SUSTAINABILITY | First Defendant |
| AND ENVIRONMENT | |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2, 3 and 4 February 2011 |
| DATE OF JUDGMENT: | 23 February 2011 |
| CASE MAY BE CITED AS: | Kindred v State of Victoria, Department of Sustainability and Environment and Victorian WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 289 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB(38)(b) and (d) – low-back injury, – whether injury is “serious” – whether plaintiff discharges his onus for establishing that the “pecuniary loss” is “serious” – “as most fairly reflects”, in determining “without injury earnings”.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith | Slater & Gordon Limited |
| For the Defendants | Mr I S Gourlay | Lander & Rogers |
| HIS HONOUR: |
1 By way of Originating Motion dated 26 March 2010, Damien Kindred (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”) to bring common law proceedings to recover damages for a low-back injury suffered by him on or about 29 January 2008 (“the injury”) during the course of his employment with the Department of Sustainability and Environment (“the first defendant”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.
3 The plaintiff, and his general practitioner, Dr Olga Ilic, were required for cross- examination by the first defendant and Mr Todd Britt, a rehabilitation and vocational consultant, was required by the plaintiff for cross-examination. Both parties tendered a variety of documents.[1]
[1] Refer to Annexure A
Relevant Legal Principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[2]
[2] See s.134AB(19)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act which reads:
“permanent serious impairment or loss of a body function … .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is the low-back. In order to succeed, the plaintiff must prove on the balance of probabilities that:
(a)
“the injury” suffered by him arose out of or in the course or due to the nature of his employment with the first defendant on or after 20 October 1999;[3]
(b)
“the injury” and the resulting impairment must be “permanent”; that is, permanent in the sense that is “likely to last for the foreseeable future”;[4] and
(c)
the “consequences” to the plaintiff of the low-back impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the
[3] See s.134AB(1) of the Act and Barwon Spinners & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[4] See Barwon Spinners (op. cit.) at paragraph [33]
range of possible impairments … be fairly described as more than
significant or marked, and as being at least very considerable”.[5] (my
emphasis)
The test for “serious” is sometimes referred to as the “narrative test”.
[5] See s.134AB(38)(b) and (c) of the Act
7 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden[6] to establish:
[6] See s.134AB(19)(b) and (38)(e) of the Act
[7] See s.134AB(38)(e)(i) of the Act
[8] See s.134AB(38)(e)(ii) of the Act
(a) that as at the date of hearing he has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act;[7] and (b) that after the date of the hearing he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[8] 8 In determining the application, the Court:
(a)
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[9]
(b)
must make the assessment of “serious injury” at the time the application is heard;[10]
(c)
must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[11]
(d)
notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.
[9] See s.134AB(38)(h) of the Act
[10] See s.134AB(38)(j) of the Act
[11] See s.134AB of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at paragraph [89] – [92]
In the event that a worker satisfies sub-paragraph (i) but not sub- paragraph (ii) of s.134AB(38)(b) of the Act, a worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity of the requirements of s.134AB is entitled, as a “matter of statutory construction” to have leave to bring proceedings for both pain and suffering damages” and “pecuniary loss damages”;[12]
(e)
notes that it has been observed that the question of whether an injury satisfies the narrative test is largely a question of impression or value judgment.[13]
[12] See Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at paragraphs [60] – [64]
[13] See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR at 592 and 628; Sabo v George Western Foods [2009] VSCA 242 at paragraph [67]
The Issues
9 Counsel for the defendants informed the Court that there was no issue that the plaintiff suffered a compensable low-back injury on or about 29 January 2008. He identified the issues to be:
(a) the nature of the injury and the extent of any persisting injury; (b) in general, whether the plaintiff satisfied the “narrative test”; (c) his capacity for suitable employment; (d)
whether the plaintiff satisfactorily disentangles any psychological or psychiatric consequences of “the injury”.[14]
[14] See T 8, L30 – T 10, L23
The Background of the Plaintiff, his Injury and Medical Treatment
10 The plaintiff adopted his affidavits,[15] sworn on 19 October 2009 (“the first affidavit”)[16] and on 12 January 2011 (“the second affidavit”).[17] The plaintiff also gave some further limited evidence-in-chief.
[15] T 11, L10-11
[16] Found at page 8 of Exhibit A
[17] Found at page 44A of Exhibit A
11 By way of his first affidavit, the plaintiff gave the following pertinent evidence:
•
He is a thirty-four-year-old (born on 29 June 1976) man who attended school to Year 11 at the Altona North Technical School.
•
After leaving school he was employed variously as a landscape gardener, forklift driver-storeman, labourer, furniture removalist and orchard hand.
•
In December 2007, he commenced employment with the first defendant as a project fire fighter.
•
On 29 January 2008, during the course of his employment with the first defendant, he suffered injury and describes the circumstances of such injury as follows:[18]
[18] See paragraph 5 at page 39 of Exhibit A
“I was attending to the clearing of rubbish from a campsite. I was using a trailer with a steel mesh canopy, provided by the [first] defendant, for that purpose. The top of the trailer was fitted with a door, hinged at the top of the canopy. As I attempted to open that door it became stuck on a weld on the frame of the canopy, causing me to jar my back.”
•
He had suffered injury to his back in or about 2001 or 2002 when becoming caught between two pallets. He had experienced back pain for a couple of weeks that had “resolved without any ongoing problems”.[19]
•
Prior to the injury, he had worked as a summer fire officer with the first defendant and such work was physically active which required full use and movement of his back.
•
In the winter seasons prior to the injury, he had played football for his local team, ‘Ardmona’, and that he would also run about 12 kilometres per week.
•
Prior to the injury, he enjoyed camping, which he would do regularly during the summer months, and fish, which he would do all year round.
•
Prior to the injury, he enjoyed the occasional game of golf, and spent much time with his two children, then aged eight and five.
•
After the occurrence of the injury, he experienced a sharp pain in his back on the left side, which caused him to rest for a short period and after which he attempted to keep working. He could not manage because of the pain, rested at home for the remainder of the day and on the following day consulted his general practitioner, Dr Olga Ilic.
•
Dr Ilic certified him unfit for work, prescribed painkilling medication, arranged for a CT scan of his back and ultimately referred him to the orthopaedic surgeon, Mr de la Harpe, who recommended conservative treatment.
•
He underwent a cortisone injection which did not provide any assistance for his condition and indeed caused him to suffer severe neck pain for a number of days.
• He has also been treated with physiotherapy, without much assistance. •
He presently undertakes hydrotherapy once per week and uses the TENS machine two to three times per day in an attempt to moderate the back pain. He takes medication, including Baclofen (two per day), Lyrica (two per day), Zoloft (one per day) and Norspan patches on a daily basis. He continues to consult Dr Ilic on a monthly basis.
•
Despite the foregoing treatment, there has been no change in his condition and he experiences constant aching pain in his low-back, predominantly on the left side, which radiates to the centre of his low- back and into the mid-back. In particular, the plaintiff states:[20]
[19] See paragraph 3 of Exhibit A
[20] See paragraph 9 of Exhibit A at page 41
“9.
… That pain radiates to the centre of my lower back, and into my mid-back. The pain varies in its severity. At its best I will experience the pain as a crunching sensation in my back. At its worst I will experience the pain as a severe, throbbing sensation. That pain is made worse with colder weather.
10.
I will get occasional pain into my left leg from my back, which can be associated with giving-way of the left leg.
11. I am restricted in my ability to move my back, and it is difficult for me to bend or twist my back in either direction.
12. I have difficulty in keeping one posture for any prolonged period, so that it is difficult for me to sit or stand for prolonged periods of time.
13. I also find it difficult to walk for prolonged periods or to walk upon stairs or uneven ground.
14. It is difficult for me to crouch, squat or kneel because of the problems with my back.
… .”
• He is restricted in his ability to help his partner with housework and he has given away camping, fishing, jogging and playing football and golf, because his back is too painful. • He is restricted in his ability to engage in sexual activity. • He attempted a return to work program in February 2008 but experienced a number of flare-ups of back pain when performing some of his duties. • He made a further return to work in May 2008 working three hours a day, three days a week, performing very light work. He deposes that “most of my time” involved sitting around doing nothing and this program was continued until about August or September 2008, when he was informed that the first defendant had no more suitable duties available. • After ceasing work with the first defendant, he was referred to a rehabilitation provider – Ayres Management Services Pty Ltd – which applied on his behalf for a number of jobs for which he did not even receive an interview. • At or about the time of his injury, he had made arrangements to obtain employment with Parks Victoria as a ranger, arranged by the Yorta Yorta Cooperative, a local Aboriginal representative body, under a scheme to increase the number of Aboriginal persons employed as rangers in Victoria. In particular, the plaintiff states:[21] [21] Paragraph 23 at page 44 of Exhibit A
“… I was very excited by this, as it had been my long-term ambition to work as a ranger, and I loved the idea of being able to work in the outdoors. Because of the injury to my back I was not able to take up the employment, which has been devastating to me.”
12 By way of his second affidavit, the plaintiff gave the following pertinent evidence:
• There has been no change in his physical condition or restrictions in his ability to use his back. • He continues to consult his general practitioner, Dr Ilic, once every couple of months and continues to take medication as prescribed by her including Lyrica (one per day), Baclofen (three per day), Norspan patches on a daily basis and Espin (one per day) which he understands to be a generic form of Zoloft. He also continues to attend hydrotherapy twice a week and uses a TENS machine at home, two to three days per week. • He has completed a course in woodwork and graphic design with an organisation called Mirribeena and since March 2010 has been working as an artist creating Aboriginal art, mostly sculptures and paintings. • Such work is suited to him as he can sit or stand as required and take breaks as frequently as he needs to. He typically works at this for two to three hours per day for a couple of days in a row, and then has a couple of days off. • He estimates that he is earning about $100 per week after the cost of materials from his work. 13 The plaintiff gave further viva voce evidence that he had moved from Mooroopna to Echuca in about October 2009 and continued to receive weekly payments of compensation to about July 2010, after which he has been in receipt of a Newstart disability pension of about $401 per fortnight.
14 Since moving to Echuca and receiving benefits from Centrelink, he has been referred to an organisation called Disability APM which has failed to obtain any type of work for him. Disability APM did assist in setting him up as an artist with the purchase of paints, machinery, sanding disc and registering it as a sole business with an ABN number.
15 The medication that he takes causes some drowsiness and forgetfulness and accordingly, he believes that such medication would be a hindrance to working in an office job, clerk’s job, or something like that where he was required to concentrate.
16 In relation to his work as an artist, he advertises through the Kyella Gallery and he used to sell things at a market at Echuca every second weekend up to two months ago.
17 He continues to get certificates from Dr Ilic for 15 hours per week performing office or light duties.
18 Under cross-examination, the plaintiff gave the following pertinent evidence:
•
He has a background in Aboriginal art through his father who has been teaching him by example over many years.
•
His workshop is a shed, which is a former carport, in which there is a bench, an angle grinder, a disc belt sander, and burning unit. He uses all these tools in making his art objects.
•
Every month (or two or three depending on need) he goes to the river to collect wood which sometimes he lifts into the trailer, depending on the size.
•
He works in the shed from about 9.00 am until about 12.00 lunchtime and later at night for a couple of hours. Any work is interspersed with breaks as needed.
•
His cheapest painting is $40 and his most expensive is about $120. He sells clapsticks for $50 and his design of a snake sells for about $200.
• He does keep books with details of his “business” but they are in Echuca. •
He hopes to expand his business and he is pursuing something which he enjoys.
•
Prior to the injury, he saw his future as a ranger but now he has “decided to go this way”.[22]
•
When employed by the first defendant, it was pursuant to various contracts for limited periods of time.
•
He gave up alcohol about three years ago and that prompted the move to Echuca from Mooroopna.
•
During those years when he had contracts with the first defendant, he would perform orchard hand work in between the contracts. One such orchard supplied group certificates and others paid by cash. The rate of pay at each orchard depended on the farmer, the type of fruit and the state of the fruit.
•
The “back” injury suffered by him in 2002 essentially involved the left- hand top side of his back.
•
When initially seen by Dr Ilic on 30 January 2008, he was treated with Panadeine Forte, some non-steroidal anti-inflammatories and the application of heat to the painful area.
•
Since the injury, he has pain on and off in his left leg and now his “knees give way as I take a step”.[23]
•
He came back to work about four days after the injury, performing light duties which involved laminating paperwork in an office. He performed this for about fourteen days and then went back out in the fire field and only lasted for about an hour, because when pulling out a hose he felt pain in his back again.
•
He returned to the doctors, after which he returned to light duties with the first defendant, again performing laminating work, which continued on with variations of light work until the first defendant had no further work.
•
On 3 March 2008, his back was a lot better, which is why he commenced work in the fire field again, which gave rise to further problems.
•
He accepted that when seen on 3 March 2008, that he had a full range of movement of his back with no pain and had been able to mow the lawns and play a small amount of football with his son but still considered the back was not one hundred per cent but a lot better than when he initially went to the doctor.
•
The pain flared-up again as a result of pulling the hoses when at work with the first defendant.
•
He underwent a CT scan on 19 March 2008 and later he was sent by Dr Ilic for an MRI scan and a consultation with the orthopaedic specialist, Mr de la Harpe on 4 July 2008.
•
Mr de la Harpe confirmed that surgery was not necessary on his back but he should continue with physiotherapy, gymnasium work and hydrotherapy.
•
He continues to receive certificates from Dr Ilic for fifteen hours a week and he believes that he could not perform fruit picking work, but could perform supervision work.
•
He has experience with basic actions on computers obtained when he was a warehouse foreman recording inward and outward movement of goods.
•
He has constant low-back pain which is relieved only in a hot shower and which can worsen depending on movements during the day.
•
He described how if he walks he has trouble with his knees, even over a short distance. He can squat down to a certain point but it is “uncomfortable”.[24] In particular, when he squats down, he has a higher level of pain, a type of “crunching pain”[25] which persists until he assumes a “new position and then it will go away a bit”.[26]
•
If he lifts something and twists he gets pain and in particular, heavy shopping bags give him pain and he cannot lift the 12-litre milk but is capable of lifting a kettle of water.
•
Sitting for a period causes an increase in symptoms, requiring him to get up and move around.
•
He was shown video taken on 7 and 8 September 2010 and he accepted that he was the main person in the video. During the course of the video, he accepted that he was shown to be getting in and out of a car, bending down in a bakery, squatting at the four wheels of the vehicle in which he was a passenger, checking the air pressure in each tyre, a passenger in a car trip from Echuca to Mooroopna, which is about 56 kilometres, and walking around when picking up his children from school, seemingly without any restriction.
•
In answer to how he coped with such activities, the following evidence was given:
[22] T 25, L15-17
[23] T 33, L26-31
[24] See T 46, L7
[25] See T 46, L13-14
[26] T 46, L18-19
“Q:
… can I suggest to you that in general, if not exclusively, you are shown walking without any restriction or without any sign of pain?---
A: Yes, but that’s because I have got my TENS machine on
when I do my shopping or go for drives.Q: How often do you wear your TENS machine?--- A: Three times a day. Q: For how long?--- A: Up to 15 to half-an-hour. Q: Does that keep your symptoms under control?--- A: Yes, sometimes. Q: Do you have (sic) taken while you have the TENS machine
operating?---A: No. Q: So you are pain free for those periods?--- A: Yes, while the machine’s on. Q: When you take it off, what happens?--- A: Double whammy, it hits me twice as hard, sort of thing. Q: Have you been using the TENS machine on a continuous
basis since it was given to you?---A: Yes I have. Q: And you report to your doctor about its use?--- A: Yes, I do.”[27] [27] T 51, L1-19
•
He agreed that the film also showed him attending the Aldi supermarket where he seemingly purchased a kite which he later flew. When asked whether he had any trouble performing that, he answered:
“A:
No and yes, I had problems but I got under the influence of amphetamines for a bit and we flew a kite and I sort of was under the influence of amphetamines and in the next couple of days it hit me.”
HIS HONOUR:
Q: “When you say ‘under the influence of amphetamines’, do
you have a problem with the use of amphetamines?---A: I did at the start, I mean I didn’t, I started using it after me
injury a couple of months after my injury.Q: This film was taken, as I understand it, in September last
year?---A: Yes. Q: So you had amphetamine problems then?--- A: I had bits, yes, since my injury. Q: Do you have problems with amphetamines now?--- A: No. Q: When do you say was the last time you had a problem with
amphetamines?---A: Would have been just before Christmas, I think it was my
last.”[28][28] T 52, L24 – T 52, L10
•
He lost his driving licence about three years ago for a drink driving offence.
•
He believes the film does give indications of his restrictions due to his back pain – the way he was doing “nothing”, allowing his wife to do the “heavy stuff” and “my kids push the trolley”.[29]
•
He was also shown video taken on 15, 16 and 20 December 2010 and again, the plaintiff accepted that he was the main person in such video. He further accepted that on Wednesday, 15 December 2010, he was shown leaving his home at 9.31 am with a small backpack on, walking to the Echuca Central Shopping Centre with his wife. During the morning, there are trips to the Aldi supermarket and the Bunnings hardware shop, during which he accepts he does spend “a fair bit of time walking”.[30]
•
He last used amphetamines in or about October or November 2010 and prior to that he had been using them once every six months or once every year.
•
He had an episode of overdosing on Temazepam on or about 23 October 2008, as reported in the medical notes.
[29] T 54, L16-23
[30] T 59, L19-21
19 When re-examined, the plaintiff gave the following pertinent evidence:
•
He does not believe he could work in a service station as a cashier if such work involved loading up fridges with soft drinks et cetera. He does not believe he would be capable of doing anything where he has to stand around for periods of time.
•
Given the amount of medication he takes, he believes that it would not be ideal for him to be driving a forklift.
• In relation to the film shown to him, he states:
ƒ that sometimes the film showed his hand pressed into either the left
or the right side, which takes the pressure off his back;ƒ he was walking with a slight limp and, in general, his walking motion
is different to that prior to the injury;ƒ he leaned on the trolley in the supermarket to take the pressure off
his back;ƒ his partner helped pull him off the couch at some offices because
she has to help him;ƒ when standing at a bread roll shop, he was standing with his left
heel lifted off the ground because that takes pressure off his back;ƒ he placed his right knee on a pile of bags when shopping at Aldi
supermarket to take the pressure off his back;ƒ when he bent forward, he placed his hand either on the shopping
trolley or display baskets in order to gain back support;ƒ on some occasions when shopping, he seemed to sit back and rest
against the display stand, again to take pressure off his back;ƒ
he allowed his wife to carry a box with a push lawn mower in it because he would have been incapable of carrying such an item; and
ƒ when reprimanding his daughter, he placed his hand on the rear of
the car for support.
•
He has been told to use the TENS machine two to three times a day “at most” and for about fifteen to twenty minutes each time.
•
He has received no advice from Mr Britt or Disability APN as to re- training.
•
He performs his artwork from about 9.00 in the morning to about 12.00 noon, approximately three days a week, and for a couple of hours in the evening, again three or four times a week. On all occasions, he breaks every ten to fifteen minutes.
•
Given his current physical condition, he does not believe he could create any more objects.
•
He was actually offered the job as ranger with the Yorta Yorta Nations in about March 2008.
•
If he had attained such job, it would have been of some cultural significance for him as:
“It’s being out in the bush every day and working – working where
your ancestors were, that’s - yes, it’s a pretty cool job.”[31]
[31] T 90, L30-31
• He confirmed that he was engaged by the first defendant on contracts running between 11 December 2006 and 27 April 2007 (a period of about four-and-a-half months) and from 1 October 2007 to 27 May 2008 (a period of about eight months). • He was kept on for longer periods to do such things as spraying of the soil for blackberries et cetera. This occurred when they considered you a good worker. • Although there is a break in the contracts between 29 February 2008 and 29 March 2008, he was actually working for the first defendant during March 2008, and indeed, after May 2008, on light duties until about September 2008. 20 Dr Olga Ilic, the general practitioner of the plaintiff, gave evidence that she practises as a general practitioner and held a Fellowship of The Royal Australasian College of General Practitioners and had been practising as a general practitioner for about eight years.
21 She initially consulted with the plaintiff on 30 January 2008 and has been his general practitioner since that date. She adopted two reports: one dated 11 February 2009[32] and 6 November 2010.[33]
[32] See page 47 of Exhibit 1
[33] See page 49 of Exhibit 1
22 In her first report, Dr Ilic diagnoses the plaintiff to be suffering chronic back pain with an intervertebral disc lesion at L5-S1. She believes that the plaintiff’s chronic back pain has stabilised and is likely to persist in the long term.
23 At the time of writing her first report, Dr Ilic stated, in relation to capacity:
“Damien has a current capacity for very light duties not requiring prolonged standing, prolonged sitting, repetitive bending and heavy lifting. At this stage we are trialling 15 hours a week of such duties and he has been completing a job seeking program.
. . .
I believe Damien’s capacity for work in the future will be restricted to light duties and that it is very unlikely he will return to his pre-injury duties.”[34]
[34] See page 48 of Exhibit 1
24 Dr Ilic arranged for the plaintiff to undergo a CT scan on 19 March 2008. The conclusion of such scan was:
“Shallow central L5-S1 disc protrusion, of questionable clinical
significance.”[35]
[35] See page 45 of Exhibit 1
25 In her second report, Dr Ilic notes that the plaintiff continues to complain of lower thoracic and lumbar back pain, intermittent leg pain and a reduced ability to function. Because of these ongoing conditions, she notes that he has an inability to walk/stand/sit for longer than about ten minutes, an inability to complete more than five minutes of light home duties and a reduced ability to bend/twist/lift.
26 She notes that his current treatment includes medication (analgesia, muscle relaxants, anti-depressants) and use of a TENS machine and home exercises/stretches. She notes that he has lost muscle bulk in conditioning his back and lower limbs and that he is restricted in activities/employment involving bending, lifting, twisting and repetitive pushing/pulling, squatting, crouching and prolonged sitting, walking or standing.
27 In relation to capacity, Dr Ilic states:
“Damien does not have the capacity to perform his pre-injury duties as a
fire fighter. I do not expect this to change in the future.
. . .
Taking into account Damien’s injury he has the capacity to perform only very light duties with the restrictions of no bending, no lifting, reduced hours and the ability to take frequent rest breaks as needed. With these restrictions in mind, Damien has begun an Aboriginal Art Course (3 hours 2 days a week) and started producing art which is selling at a local gallery. I believe this form of employment is suitable as it provides flexibility in hours/breaks according to Damien’s clinical condition. Damien is fit for only very light duties on a part time basis with a maximum of 10-15 hours/week.”[36]
[36] See pages 49-50 of Exhibit 1
28 Under cross-examination, Dr Ilic accepted that she generally accepts what she is told by the plaintiff because she has “no reason to not believe him”.[37]
[37] T 104, L10-24
29 She arranged for the orthopaedic specialist, Mr David de la Harpe and the neurosurgeon, Mr D’Urso to examine the plaintiff to assist her in coming to a view about the state of the plaintiff.
30 Dr Ilic accepted that the CT scan showed “something” but was not “overly dramatic”.[38]
[38] See page 106 of Exhibit 1
31 Dr Ilic had not seen the MRI scan of 2 June 2008 arranged by Mr de la Harpe. That scan concludes:
“Normal MRI lumbar spine.”[39]
[39] See page 46 of Exhibit 1
32 Dr Ilic accepted Mr de la Harpe’s conclusion that the scan was essentially normal for his age.
33 Dr Ilic, when asked to compare the condition of the plaintiff from 2008 to now, stated:
“His condition fluctuates a little, certainly he suffers with the chronic back pain, back spasms which I think is lumbar sciatica, lumbar region, intermittent right and left leg pain, his range of movement on examination is similar, it may fluctuate slightly but is similar. So yes, I would agree that he presents similarly on how he’s presenting that day.”[40]
[40] T 107, L16-24
34 Dr Ilic confirmed that when initially seen she was of the view the plaintiff had suffered a disc injury but now considers that he has chronic back pain in part related to a disc injury and in part related to some lumbosacral nerve irritation.
35 Dr Ilic is of the view that the CT scan is “not 100 per cent normal”[41] and that she considers her job to be “as cautious as possible”.[42]
[41] T 110, L20-24
[42] T 111, L10-11
36 When it was suggested that the plaintiff’s restrictions as outlined by her are largely on the basis of what he says they are, Dr Ilic stated:
“… That’s true, and it’s also based on examination and watching him, his behaviour when he presents, he appears uncomfortable and is continually changing his position and some of these things – I’m not sure if I’ve recorded this in the notes but with respect to twisting things like that, I have objectively witnessed those things.”[43]
[43] T 111, L29-31 – T 112, L1-4
37 On being given some detail about the film, Dr Ilic indicated that she would be interested to see the film but could imagine that the plaintiff would be able to do these things but would be unable to retain such postures for any length of time, or repetitively, and would pay the price and have pain afterwards as a result of performing such activities.
38 Dr Ilic confirmed that she certified the plaintiff unfit for work from 9 July 2009 on the basis, she believes, that his pain just deteriorated, although she is not aware of anything which caused that pain to deteriorate.
39 Under re-examination, Dr Ilic was referred to the second MRI scan undertaken on 2 July 2009.[44] That scan concludes:
“Overall no significant signs of lumbar spondylosis, disc protrusion or
canal stenosis.”
[44] Page 46A of Exhibit 1
40 It is noted on the findings that at the level of L5-S1 there is a –
“… small left paracentral disc bulge. … [which] does not appear to indent
upon the L5 or S1 nerve roots. … .”
41 Dr Ilic considered this was a similar finding to the initial CT scan and supports her thesis that something is “there”.[45]
[45] T 125, L8
42 Dr Ilic, on being told the regime of hours that the plaintiff is working producing his paintings and sculptures, considered such work to be suitable because it permitted him to move frequently and take rest breaks as required.
43 Dr Ilic informed the Court that she last consulted with the plaintiff on 6 November 2010 and prior to that on 5 July 2010.
44 The plaintiff relies on a report from Mr David de la Harpe, dated 27 January 2009[46] wherein he notes that he consulted with the plaintiff on 4 July 2008. At that time, he obtained a history that the left leg pain was now “no longer a feature” and that he was suffering persisting low-back pain and a burning sensation behind his right thigh when he sat down. The back pain was aggravated by most activities and also by sitting.[47]
[46] See page 51 of Exhibit 1
[47] See page 51 of Exhibit 1
45 Examination found him to have a normal stance and a normal gait, with a range of movement being 60 degrees of flexion and 20 degrees of extension of the lumbar spine. There was no neurological abnormality in his lower limbs.
46 Mr de la Harpe considered the MRI scan (the first one taken on 3 June 2008) was “normal for his age”.[48]
[48] See page 51 of Exhibit 1
47 In conclusion, Mr de la Harpe thought the plaintiff had suffered mechanical back pain as a result of a lifting injury at work and that he was limited in his capacity for work when seen by him. In particular, Mr de la Harpe states:
“I believe his capacity to undertake manual labour into the future may be somewhat limited but I have not seen him since the initial injury and am unaware of his progress to date.”[49]
[49] See page 52 of Exhibit 1
48 The plaintiff also relies on a report from the neurosurgeon, Mr Paul D’Urso, dated 29 November 2010.[50] Mr D’Urso initially consulted with the plaintiff on 10 July 2009 and he also had access to the MRI scan dated 3 July 2009 (the second MRI scan) which he considered revealed a small left paracentral L5- S1 disc prolapse which did not appear to cause nerve root compression.
[50] See page 53 of Exhibit 1
49 Mr D’Urso, after noting that he had only seen the plaintiff on one occasion, considered him to be relatively stable after sustaining a lumbosacral disc prolapse as a result of the injury. Based on his examination on 10 July 2009, he states:
“... I would not recommend that he perform unrestricted physical or manual labour. I would recommend that he not lift weight beyond 20 kg. He should not be required to bend, twist or lift repetitively, lift from below the knee or above the shoulder. He should have the ability to ambulate freely in the workplace and avoid sitting and standing postures in excess of one hour if possible. However, I qualify this assessment as it was performed in July 2009 and I am unaware of Damien’s current status.
. . .
I am unaware of Damien’s current capacity. However, I would suggest that he not perform activity beyond the recommendations mentioned in the text above. Given that he performed work as a fire fighter and farm hand, it is likely that there will be a degree of partial incapacity in regard to unrestricted physical or manual labour.
. . .
I am unaware of Damien’s current capacity but I suspect he would have some capacity for at least part-time light employment.
. . . .”[51]
[51] See page 54 of Exhibit 1
Further Affidavit Material
50 The plaintiff also relies on an affidavit of Tracey Jann Sheehan, sworn on 25 January 2011.[52] Ms Sheehan describes herself as the plaintiff’s de facto partner of ten years and also asserts that the plaintiff, prior to his injury, very much enjoyed the outdoors and playing sports, including football, golf and jogging. Furthermore, he enjoyed camping and fishing.
[52] Found at page 44D of Exhibit 1
51 Ms Sheehan asserts that as a result of his injury, the plaintiff has been unable to pursue his sporting interests, is of little assistance around the house, is unable to mow lawns and is unable to walk dogs because the pull on the lead causes him back pain and discomfort. To her observation, the plaintiff finds standing, sitting and walking for long periods painful to his back.
Medico-Legal Reports
52 The plaintiff relies on the following medico-legal reports:
(a) Medial reports of the general surgeon, Mr Peter Scott, dated 29 November 2008[53] and 9 February 2010;[54] (b) Medical report of the orthopaedic surgeon, Mr M Pavlovic, dated 16 May 2009;[55] (c) Medical report of the orthopaedic surgeon, Mr S Doig, dated 13 December 2010;[56] (d) Medical report of the occupational physician, Dr Amanda Sillcock, dated 8 December 2010.[57] [53] at page 58 of Exhibit 1
[54] at page 64A of Exhibit 1
[55] at page 65 of Exhibit 1
[56] at page 56 of Exhibit 1
[57] at page 67 of Exhibit 1
53 When first seen by Mr Scott on 25 November 2008, the plaintiff was complaining of chronic low-back pain which is aggravated by way of physical activity, and also pain radiating from his back into his left thigh and occasionally to his calf.
54 Mr Scott diagnosed unresolved low-back pain and believed that the CT scan (19 March 2008) showed evidence of an L5-S1 disc prolapse, probably causing some intermittent left-sided lumbosacral nerve root irritation. He was of the further opinion that he was unfit for his pre-accident duties but had the capacity for very light work in a part-time capacity in a factory which does not require prolonged standing, prolonged sitting, repetitive bending or heavy lifting.
55 When later examined on 9 February 2010, the plaintiff was complaining of chronic low-back pain which is worse with physical activity, together with radiation of pain from his back to his right thigh on occasions. At that time, Mr Scott was of the opinion that the plaintiff continued to suffer chronic low-back pain with the development of a Chronic Pain Syndrome with apparent anxiety and frustration, together with a work aggravated discogenic problem in the lumbosacral spine at the L5-S1 level with possible intermittent mild right-sided lumbosacral nerve root irritation. However there was no evidence of lower limb radiculopathy.
56 Mr Scott continues to be of the opinion that the plaintiff was unfit for his pre- injury employment but infers that he would be capable to perform modified duties avoiding any prolonged standing, prolonged sitting, repetitive bending or lifting more than 5 kilogram weights.
57 Mr Pavlovic examined the plaintiff on 12 May 2009 primarily for an assessment of any impairment under the relevant guidelines. Although such assessment is not particularly relevant to any determination to be made in this proceeding, I do note that Mr Pavlovic diagnosed the plaintiff to be suffering chronic low-back pain which is “discogenic in origin and was confirmed by clinical and radiological examinations”.
58 When seen by Mr Doig in December 2010, he did find one-centimetre of right quadriceps wasting but no calf wasting. Examination of the thoracolumbar spine revealed tenderness and spasm on the left of the midline between about L2 and L5, with flexion of 55 degrees, extension to 20 degrees, lateral flexion of the right to 20 degrees and to the left to 20 degrees, and radiation on the right to 20 degrees and on the left to 20 degrees.
59 Mr Doig diagnosed a chronic low-back strain, and considered that the plaintiff would not have the ability to perform his pre-injury duties. However, Mr Doig does state:[58]
“… I consider that he does have the capacity to perform suitable employment. He is currently looking at opening his own business in the authentication of aboriginal art. This is suitable. He can work at his own pace and his own rate. All of that is consistent with his current situation. I consider that suitable employment should be able to last into the foreseeable future. … .”
[58] See page 57 of Exhibit 1
60 Dr Sillcock examined the plaintiff on 4 November 2010. After examination, she formed the view that the plaintiff was suffering from a chronic soft-tissue strain to his lumbar spine, with no clinical or radiological evidence of radiculopathy.
61 Dr Sillcock was of the specific opinion that the plaintiff could not return to his pre-injury duties as a fire fighter and that he should avoid prolonged sitting and standing and lifting heavy weights. Although he could bend, he should avoid sustained or repetitive bending. She states:[59]
“Mr Kindred does have a capacity to undertake suitable employment. He could do work that complies with the restrictions above. He is relatively young and although his level of education is not very high, he is currently undertaking some further training in woodwork and drawing. This may eventually lead to some alternative work. I believe that he is fit to work for up to 20 hours per week.”
[59] See page 71 of Exhibit 1
62 The defendants rely on the following medico-legal reports:
(a)
Medical report of the orthopaedic surgeon, Mr J Hooper, dated 3 February 2010;[60]
(b)
Medical reports of the orthopaedic surgeon, Mr Ian Jones, dated 13 October 2010[61] and 31 January 2011.[62]
[60] See page 9 of Exhibit A
[61] See page 11 of Exhibit A
[62] See page 16(a) of Exhibit A
63 Mr Hooper examined the plaintiff on 3 February 2010. At that time, the plaintiff complained of back pain, together with left-sided leg pain, sometimes causing his left leg to go numb. Mr Hooper considered that the plaintiff moved well and had a normal range of lumbosacral movement, with no discomfort on extremes. Furthermore, straight leg raising was 90 degrees on the right and 85 degrees on the left with no neurological signs present. He had access to the MRI scan dated 2 July 2009 and considered it to be within normal limits.
64 Mr Hooper considered the plaintiff to have suffered a low-back strain as a result of the injury. Mr Hooper considered the plaintiff capable of working at the time of his examination but considered that he may have some difficulty doing heavy work involving heavy bending or lifting.
65 Mr Jones examined the plaintiff on 13 October 2010, at which time the plaintiff described constant pain in his low-back, like crunching, and such pain is aggravated by any physical activities such as vacuuming or attempting to hang out the washing. At the time of that examination, he reported that his left leg was “good” although he did have some problems with his right knee joint.
66 At that time, Mr Jones was of the opinion that the plaintiff had suffered a soft- tissue strain, but was unable to relate his condition to the injury on 29 January 2008.
67 Leaving aside any issue of causation, Mr Jones considered that the plaintiff was at least fit for sedentary of semi-sedentary work where there was no requirement to engage in any heavy lifting or bending.
68 In his report dated 31 January 2011, Mr Jones has to hand the second MRI scan dated 3 July 2009. Mr Jones comments in relation to such scan:[63]
“This investigation concludes overall no significant signs of lumbar spondylosis, disc protrusion or canal stenosis. The MRI scan was apparently performed in conjunction with a myelogram showing normal appearance of the thecal sac. The only specific finding referred to in the report is a described ‘small left sided paracentral disc bulge only’. Having reviewed this man’s examination findings, his previous x-rays and the more recent MRI scan provided dated 02.07.09 my comments from my previous report are unchanged.”
[63] See page 16(a) of Exhibit A
Rehabilitation Material
69 The defendant relies on various offers of suitable employment running from February 2008 to 9 September 2008. Furthermore, the defendant also relies on various rehabilitation and vocational assessment reports from the rehabilitation provider, Ayres Management Services Pty Ltd.[64]
[64] See pages 17 to 35A0 of Exhibit A
70 Mr Todd Adam Britt, a rehabilitation and vocational consultant employed by Ayres Management Services Pty Ltd, gave evidence and was cross- examined. In his evidence-in-chief, Mr Britt gave the following pertinent evidence:
•
He holds professional qualifications of a Bachelor of Applied Science and Bachelor of Management, and from about 2003, he has been involved in various organisations assisting people to obtain employment. He commenced employment with Ayres Management Services Pty Ltd on 4 August 2008 as a vocational consultant or, alternatively, a rehabilitation/vocational consultant.
•
Although the plaintiff had initial contact with Ayres Management Services Pty Ltd in September 2008, Mr Britt first had contact with him on 22 December 2008. The purpose of such meeting was to commence a new employment services program as requested by Cambridge Integrated Services, who referred the plaintiff to the organisation.
•
Mr Britt prepared an eight-week job seeker plan dated 17 February 2009. At that time, Mr Britt, based on the available material, formed a view that the plaintiff may have a potential capacity to perform work as a youth worker, office assistant, customer service enquiry clerk, despatch clerk and/or gallery assistant. Mr Britt considered that each of the nominated employment could be found within reasonable proximity of where the plaintiff was residing.
•
There was a meeting amongst Mr Britt, the plaintiff and Dr Ilic on or about 9 December 2009 where there was discussion, amongst other things, of engaging the WISE Scheme, whereby employers are compensated if they take on injured workers for a period of time. For the scheme to be operational, a worker has to be able to do at least fifteen hours a week and certificates were obtained from Dr Ilic to this end.
•
The involvement of the Ayres Management Services Pty Ltd came to an end in or about July 2010.
71 Under cross-examination, Mr Britt gave evidence that pursuant to the WISE Scheme, he would have made more than thirty applications to different employers promoting the plaintiff. During that time, the plaintiff did not receive a single interview.
72 Mr Britt thought at any one time his branch of the organisation would have 250 to 300 people seeking employment of whom he has an active case list of thirty to forty clients. In such a situation, the WISE Scheme is attempted to be utilised in many cases.
73 Mr Britt explained that when dealing with a prospective employer, privacy issues prevent giving too much detail about any specific medical condition and he sees his role as to assist his clients back into suitable employment and supporting them back into employment. Any actual physical restrictions are only discussed when details of a job are offered by any prospective employer and to be assessed by allied health people at the time the job is discussed in detail.
Analysis of the Evidence
74 There is no issue that on 29 January 2008, the plaintiff suffered a low-back injury arising out of or in the course of his employment with the first defendant. The nature and extent of such injury has been described as follows:
(a)
Dr Ilic, the treating general practitioner, considers that the plaintiff has chronic back pain, in part related to a disc injury and in part related to some lumbosacral nerve root irritation;
(b)
The treating orthopaedic surgeon, Mr de la Harpe, considered the plaintiff to be suffering “mechanical back pain”;
(c)
The treating neurosurgeon, Mr D’Urso, considered that the plaintiff had suffered a “lumbosacral disc prolapse”;
(d)
The general surgeon, Mr Peter Scott, ultimately considered that the plaintiff suffered from an “aggravated discogenic problem in the lumbosacral spine at the L5-S1 level with possible intermittent mild right- sided lumbosacral nerve root irritation”. He also considered, on the basis of his last examination, the plaintiff to be suffering some type of Chronic Pain Syndrome;
(e)
The orthopaedic surgeon, Mr Pavlovic, who performed the AMA impairment assessment, considered the plaintiff to be suffering low-back pain which was “discogenic in origin”;
(f)
The orthopaedic surgeon, Mr Doig, considered the plaintiff to be suffering a “chronic low-back strain”;
(g)
The occupational physician, Dr Sillcock, considered that the plaintiff was suffering a “chronic soft tissue strain to his lumbar spine”;
(h)
The orthopaedic specialist, Mr Hooper, considered the plaintiff to be suffering a “low-back strain”; and
(i)
The orthopaedic specialist, Mr Jones, considered that the plaintiff was suffering a “soft tissue strain” but was unable to relate that to any injury on 29 January 2008.
75 The plaintiff underwent a CT scan on 19 March 2008 and the radiologist concluded that such scan revealed:
“Shallow central L5-S1 disc protrusion, of questionable clinical
significance.”
Later, the plaintiff underwent an MRI scan on 3 June 2008 which was reported as “normal”. A further MRI scan on 2 July 2009 was reported to be showing a small left paracentral disc bulge at the L5-S1 level. However, the radiologist concluded:
“Overall no significant signs of lumber spondylosis, disc protrusion or
canal stenosis.”
76 All doctors appear to be of the view that there is no radiculopathy or frank neurological signs consistent with gross discal injury.
77 All doctors (with the exception of Mr Jones) accept that the plaintiff has ongoing symptoms from the back injury that he suffered on 29 January 2008. Ultimately, I do not think it matters overly whether his ongoing symptoms can be attributed to a chronic back strain or some discal, albeit modest, involvement. If the cause of pain is discal at the L5-S1 level, such is seemingly not a significant discal injury in the absence of neurological deficit and the absence of radiculopathy.
78 The more critical issue, in my view, is to gauge the severity of the ongoing symptoms suffered by the plaintiff. On the one hand, the plaintiff asserts, both in his affidavit material and viva voce evidence, that he has ongoing symptoms which cause difficulty in bending, lifting, squatting and walking for any distance. Furthermore, in court, consistent with this evidence, he frequently changed his posture, alternating from being seated to standing.
79 However the video material seemingly demonstrates his ability to squat with no apparent difficulty, bend with no apparent difficulty and walk for reasonable distances. The plaintiff maintained that such activities were done with difficulty and he pointed to certain features of the video supporting such assertion. He also claims that he used a TENS machine on such days which reduced his symptoms. I also have the evidence before me that when he presented to the general practitioner on 3 March 2008, he had a full range of movement of his back with no pain, had been able to mow the lawns and play a small amount of football with his son. Although he considered the back was not 100 per cent better at that time, there certainly had been a dramatic improvement from his initial presentation. Of course, I do note that he asserts that the pain flared up again as a result of attempting to pull hoses when at work with the first defendant.
80 I found the plaintiff a reasonably frank witness who did not consciously set out to actively mislead the Court in relation to his symptoms. Furthermore, I formed the view that Dr Ilic was clearly a caring doctor who, as she freely conceded, had been accepting of what the plaintiff told her and that she had been “as cautious as possible”.
81 I have come to the view, based on all of the evidence, that the plaintiff has some degree of permanent impairment in relation to his back resulting from the injury. In determining whether or not he satisfies the narrative test for “pain and suffering”, I consider the following matters relevant:
(a)
Prior to the advent of his back injury, he was a particularly active person, being involved with football clubs and playing up to the year prior to his injury. Furthermore, he jogged frequently, played occasional golf and was very much an “outdoors” person who enjoyed camping and fishing;
(b)
He is a relatively young man with the prospect of experiencing symptoms into the foreseeable future;
(c)
No doctor suggests that he is capable of going back to heavier forms of work, and given the nature of his industrial background, I tend to the view that he would be incapable, at least, of performing heavier forms of work involving repeated bending or lifting which would involve work such as fire prevention and orchard work which involves, climbing, reaching and lifting;
(d)
I also think it is of some significance that at or about the time he suffered the injury, he had been accepted for a ranger’s job to work in areas controlled by the Yorta Yorta Organisation. He could not take up such job because of the injury. The plaintiff expressed his disappointment at being unable to pursue such work as it had some cultural significance to him.
82 Accordingly, I am of the opinion that the plaintiff has suffered significant losses as a result of his low-back impairment.[65] On balance, I find that the plaintiff does satisfy the narrative test and is entitled to, at least, bring common law proceedings in respect of “pain and suffering”.
[65] See Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
83 In relation to “pecuniary loss”, s.134AB(38)(e)(i) of the Act requires the plaintiff to establish that as at the date of hearing of the application, he “has a loss of earning capacity … of 40 per cent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity as prescribed by paragraph (f), necessitates a comparison of two matters:
(a)
what the plaintiff is earning whether in suitable employment or not or capable of earning in suitable employment at the date of hearing (“after injury earnings”); and
(b)
the income that the plaintiff was earning or was capable of earning “during that the part of period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”).
84 In both cases, the income is limited to gross income from personal exertion and is to be annualised.
85 Section 134AB(38)(e)(ii) requires the plaintiff to establish that he will, after the date of the hearing, “continue permanently to have a loss of earning capacity which will be productive of a loss of 40 percent or more”.
86 In determining what are the “without injury earnings” of the plaintiff, I refer to the following matters:
(a) A summary of his income taxation returns[66] which sets out: [66] See page 80 of Exhibit 1
Financial Year Gross Income from Personal Tax Instalments
Ending Exertion/WorkCover Benefits Deducted $16,478.00
30 June 2005 $2,207.00 $4,110.00 (Government
allowance) $13,863.00
30 June 2006 $1,964.00 $6,522.00 (Government
allowance) $19,262.00
30 June 2007 $4,480.00 $6,363.00 (Government
allowance)
30 June 2008 $26,317.00 $4,366.00 30 June 2009 $25,206.00 $2,686.00 Financial Year Gross Income from Personal Tax Instalments
Ending Exertion/WorkCover Benefits Deducted
30 June 2010 $23,504.00 $2,340.00 Bearing in mind that the plaintiff suffered injury on or about 29 January 2008, the amounts declared for the years ending 30 June 2009 and 30 June 2010 are referrable to compensation payments, as are some parts of the year ending 30 June 2008;
(b) Prior to his injury, the plaintiff was employed by the first defendant for various periods by way of a series of contracts: ƒ a contract executed on 8 December 2006 and to run from 11
December 2006 to 30 March 2007 at a rate of $557.66 per week;
ƒ a contract executed on 16 March 2007 for the period from 31 March
2007 to 27 April 2007 at a rate of $557.66 per week;ƒ a contract executed on 1 October 2007 for the period from 1 October
2007 to 29 February 2008 at the rate of $593.63 per week; andƒ a contract dated 27 March 2008 for the period from 29 March 2008 to
23 May 2008 at a rate of $601.80 per week.The evidence also established that during the period from 29 February 2008 to 29 March 2008, he was employed by the first defendant and furthermore, such employment extended to about September 2008 (during which time the plaintiff was performing light alternative work in the office).
The plaintiff also gave evidence that he anticipated his contracts would be extended with the first defendant to perform work during the winter months;
(c)
Over the years leading up to his injury, the plaintiff gave evidence that when not working for the first defendant he sought work on orchards and was paid at rates depending on the farmer, the type of fruit to be picked and the state the fruit was in. He gave evidence that on one occasion he obtained a Group Certificate but frequently he was paid in cash. No details were given as to the precise periods that he worked or indeed, his earnings from such work;
(d)
As already indicated in this judgment, the plaintiff gave evidence that absent his injury, he would have become a ranger over bushland controlled by the Yorta Yorta Organisation. Presumably, such work would have been full-time. However, there is no evidence about such work other than he was offered the job.
87 The parties informed me that if the plaintiff was employed pursuant to a contract with the first defendant at the present time, it was agreed that he would be paid $716.75 gross per week. Of course, bearing in mind that the injury occurred on 29 January 2008, the ensuing three years can be taken into account to ascertain what most fairly reflects the plaintiff’s “without injury earnings”.
88 In such circumstances, it was submitted by counsel for the plaintiff that the “without injury earnings” should be determined at $37,271.00, being the agreed rate of $716.75 annualised. Sixty per cent of such figure is $22,362.00.
89 Counsel for the defendant submitted that the “without injury earnings” should be either $14,335.00 or $19,710.00 on the basis of the agreed rate of $716.75 either for 20 weeks or 27.5 weeks, reflecting the periods of the contract. The figure of 27.5 weeks is said to reflect the contract period from 1 October 2007 to 29 February 2008 (20 weeks) and the further contract period from 29 March 2008 to 23 May 2008 (7.5 weeks). Sixty per cent of $14,335.00 is $8,661.00 and sixty per cent of $19,710.00 is $11,826.00
90 I refer to Acir v Frosster Pty Ltd[67] [2009] VSC 454, wherein Forrest J, when considering “without injury earnings” stated:
“The essence, then, of the inquiry is to fix a figure which ‘most fairly’ reflects the earning capacity of the injured worker, absent the subject injury. As I have said, usually the inquiry in determining the figure will be restricted to questions of promotion, increase in salary or loss of employment opportunity — all being said to be relevant to determining the figure that most fairly reflects the worker’s earning capacity without injury. … .”
[67] [2009] VSC 454 at paragraph 167
91 I consider that the words “as most fairly reflects” does permit the Court, when ascertaining the “without injury earnings” to give consideration of all of the circumstances of the plaintiff’s employment within the three years prior to the injury and his or her likely prospects, absent the injury, for three years after the occurrence of the injury.
92 In the present matter, I find that absent the injury, the plaintiff was likely to continue:
(a) to obtain contracts with the first defendant, with some likelihood they may have increased to some extent in recognition of his ability. (I am not prepared to find on the basis of the evidence that he would have been employed by the first defendant on a full-time basis within the requisite three years); (b) to have obtained orchard work for indeterminate periods of time and indeterminate rates of pay for periods when he was not working under contract with the first defendant. 93 I am not satisfied, as a matter of probability, that the “extension of his contract” from March 2008 to September 2008 reflects that he was a “good worker” or rather he was kept on in alternative light duties to overcome his back injury suffered in January 2008.
94 I determine a “without injury earnings” figure of $25,803.00, representing 36 weeks at the rate of $716.75 per week. Such figure takes into account the potential of the plaintiff obtaining longer contracts with the first defendant absent his injury (although not for a full 52-week year) and allowing for some indeterminate periods of orchard work at an indeterminate rate of pay. By allowing $716.75 per week throughout the period of the 36 weeks, allows for the vagueness of the extent of the contract work balanced against the lack of information as to what period or periods and for what rate of pay he may have performed orchard work. I cannot speculate as to what he would have earned as a ranger, nor can I speculate that he would necessarily have been working full-time as a ranger. Sixty per cent of the “without injury earnings” is $15,481.00.
95 The evidence establishes that the plaintiff is earning about $100 gross per week after the deduction of expenses for his aboriginal art business.
96 I find, on a consideration of all of the evidence, that the plaintiff has a capacity for “suitable employment” within the meaning of the Act and indeed, this is demonstrated by his self-employment. The issue becomes as to whether or not such earnings in the art business reflects what he is capable of earning in suitable employment.
97 Again, considering all of the evidence, I am not persuaded that the plaintiff is incapable of earning $15,481.00 dollars per annum. I consider that the plaintiff is capable (at least) of working twenty hours per week in suitable employment. Relying on the jobs nominated by the rehabilitation service and the rates of pay for such jobs, I find that the plaintiff is capable of earning in excess of $15,481.00 performing twenty hours a week alternative duties such as sales assistant, general clerk, cashier or sales clerk.
98 I accept that the plaintiff is reasonably well motivated, as evidenced by his re- training, to perform aboriginal artwork. I gained the impression from the plaintiff during his evidence that he anticipates the earnings of such work will increase as he becomes more established, bearing in mind that the business is only in its infancy.
99 It is clear on the evidence that neither Ayres Management Services Pty Ltd, nor indeed the rehabilitation provider in Echuca has obtained employment for the plaintiff. It is to be stressed that in assessing the capacity to earn means the physical capacity to earn income in “suitable employment”, whether or not a job is available.[68] Although the evidence established that under the WISE Scheme the plaintiff did not obtain an interview, it was also clear that no employer was given precise details of any restrictions on the plaintiff’s capacity for employment – that was to be negotiated at the first interview after details of the precise job was known. It cannot be said that the plaintiff tried such work under the WISE scheme and could not cope.
[68] See State of Victoria v Rattray [2006] VSCA 145, at paragraph 16
Conclusions
100 I grant leave to the plaintiff to bring common law proceedings in respect to his back injury suffered on or about 29 January 2008 for pain and suffering damages only.
101 I will hear the parties on the issue of costs.
- - -
ANNEXURE “A”
1 The plaintiff tendered the following material:
Exhibit 1:
(a) Affidavits of the plaintiff, sworn 19 October 2009 and 12 January 2003; (b) Affidavit of Tracey Jan Shan, sworn 25 January 2011; (c) Diagnostic investigations consisting of CT scan dated 19 March 2008 and MRI scans dated 3 June 2008 and 2 July 2009; (d) Medical reports of Dr O Ilic, dated 11 February 2009 and 6 November 2010; (e) Medical report of Mr de la Harpe, dated 27 January 2009; (f) Medical report of Mr D’Urso, dated 29 November 2010; (g) Medical report of Mr Doig, dated 13 December 2010; (h) Medical reports of Mr Scott, dated 29 November 2008 and 9 February 2010; (i) Medical report of Dr Sillcock, dated 8 December 2010; (j) Medical report of Mr Pakalovic, dated 16 May 2009; (k) Summary of income taxation returns. Such documents are found at paged 38 to 74 and 80 of the plaintiff’s Court
Book.2 The defendant tendered the following documents:
Exhibit A:
(a) Medical report of Mr J Hooper, dated 3 February 2010; (b) Medical reports of Mr Ian Jones, dated 13 October 2000 and 31 January 2011; (c) All rehabilitation documents;
(d) Contracts of Employment dated 8 December 2006; 16 March 2007; 1 October 2007 and 27 March 2008; Such documents were found at pages 9 to 39 of the defendant’s Court Book. Exhibit B:
Consisting of video material taken on 7 and 8 September 2010; 20 October
2010 and 15, 16 and 29 December 2010.Exhibit C:
Report from the psychiatrist, Mr Timothy Entwisle, dated 12 November 2010.Such reports were found at pages 75 to 79 of the plaintiff’s Court Book.
0
9
0