King v Mars Australia Pty Ltd
[2012] VCC 374
•21 March 2012 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05653
| LINDSAY ALBERT KING | Plaintiff |
| v | |
| MARS AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 20 March 2012 | |
DATE OF JUDGMENT: | 21 March 2012 (Revised) | |
CASE MAY BE CITED AS: | King v Mars Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 374 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – injury to the right knee
LEGISLATION CITED – Accident Compensation Act 1985
JUDGMENT – Leave granted to issue proceedings for pain and suffering damages and pecuniary loss damages in respect of injury to the right knee
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordan SC with Mr T J Seccull | Slater & Gordon |
| For the Defendant | Mr P B Jens Mr I S Gourlay | DLA Piper |
HIS HONOUR:
1 There is no issue that the plaintiff sustained an injury to his right knee in the course of his employment with the defendant in April 2005, the effect of which has been to occasion upon him a very significant and progressively deteriorating condition in his right knee which is such that it will inevitably lead to the requirement that the plaintiff undergo a total knee replacement.
2 In this application the defendant:
(i) concedes the plaintiff's entitlement to an order giving him leave to commence a proceeding against the defendant seeking damages for the pain and suffering consequences of the impairment associated with this injury; and
(ii) puts in issue the plaintiff’s entitlement to an order giving him leave to commence a proceeding against the defendant seeking damages for the pecuniary loss consequences of the impairment associated with this injury.
3 There is uniformity in the medical evidence relied upon by the parties that the injury to the plaintiff's knee is such that he has lost any capacity to undertake the duties required of him in his prior trade as an electrician. Equally, however, the medical evidence supports the contention that the plaintiff possesses some retained capacity for suitable employment, as does the plaintiff’s viva voce evidence at Transcript 82-89.
4 The most recent reports which consider the plaintiff's capacity for suitable employment both as to its nature and the level of the plaintiff's retained capacity, are as follows:
·Mr Keith Elsner, report dated 8 November 2011, in which Mr Elsner opined:
“In my opinion his capacity for employment has deteriorated since I last saw him. He is not fit for his pre-injury employment as an electrical operations technician. In my opinion, even following successful right knee joint replacement, he will not be able to return to that work in the future because of the kneeling, squatting and climbing activities involved.
It is also my opinion that he will not be able to work in his trade as an auto electrician because of the stressors that work puts on his knee. Following this current assessment I am of the opinion that Mr King is currently only fit to do sedentary type work. I believe it would be appropriate for him to have an up to date vocational assessment with a view to retraining or with a view to trying to redirect him into an area which can utilise his electrical skills, for example, perhaps in the field of repair of small electrical appliances, seated at a bench or similar sedentary work. Following a total knee replacement arthroscopy I would expect his pain and sitting and standing and working capacity will significantly improve.”
·Mr Andrew Byrne, report dated 19 October 2011, in which Mr Byrne comments:
“Mr Lindsay King was a trained electrician with an arthritic right knee, confirmed at arthroscopy. He will find it extremely difficult to return back to work as an electrician. He requires kneeling and squatting as part of his every day activity and this will become extremely problematic for him. At this stage I have recommended he seeks retraining into a different field. Mr King, however, has not been trained for any other activity apart from working as an electrician, thus it may be difficult for him to gain useful employment. Ultimately he will require a total knee replacement, but at his age of 42, I have recommended that he delay this for as long as practical. Mr King agrees with this approach.”
·Mr Russell Miller, report dated 20 September 2011, in which Mr Miller comments:
“This man's injuries have substantially stabilised since April 2008 and since there has been no prospect of improvement there has been a slow pattern towards deterioration. I believe unfortunately, this is likely to continue and I refer to my earlier comments in relation to a knee replacement. The condition has substantial[ly] stabilised. Treatment requirements are outlined in this report. This man could not undertake work that involves kneeling, squatting or crouching. He could cope with prolonged sitting. He could not undertake prolonged walking or standing. He will have difficulty with inclines and declines. He would not be safe on steps, ladders or climbing. These restrictions are permanent. He could not return to pre-injury duties on any significant part time basis.”
·Mr David Middleton, report dated 23 May 2011, in which Dr Middleton opined:
“There is an established accelerated arthritic disease occurring in the right knee where the medium and long term prognosis is poor. Exclusively addressing the physical component of the injury, it is my opinion that from a practical employment point of view, Mr King will need to avoid pushing, pulling, kneeling, squatting, crouching and using steps or ladders. Mr King will need to restrict lifting, avoid bending and squatting, and restrict to a maximum effective weight of five kilograms on an intermittent basis. Mr King should avoid activities at height. Mr King will need to be able to change posture on an as needs basis, avoiding prolonged sitting or standing, preferring changes every 15 to 20 minutes, and in regard to walking, avoiding hard pavements and limited distances, in particular up inclines and down declines where the knee would tend to be unstable due to quadriceps weakness. Exclusively addressing the physical component of the injury and the impairment of the right knee to the exclusion of any psychological and psychiatric condition, noting his education, narrow skills base and work experience, together with his place of residence and age, Mr King has a capacity to undertake non manual work, applying the restrictions as stated above. I believe that work hours need to be flexible and restricted, and consider up to four hours per day three days per week as being a safe maximum to apply. It is my opinion that Mr King no longer has a reliable capacity for work where both his work restrictions and limited skills are addressed. In my opinion Mr King's capacity to return to work is currently theoretical. On this basis, this incapacity as discussed, in my opinion, is permanent and is likely to last for the foreseeable future.”
·Mr Andrew McDonald, Mr King's treating general practitioner, who opined in a report dated 25 August 2011:
“Mr King continues to have a limited capacity for sitting or standing for extended periods. He has had increased pain and stiffness in his knee in the post-operative period with no improvement in functioning or quality of life. As a consequence of his physical injury (right knee) Mr King is currently unfit for employment and is likely to be permanently precluded from employment or activities involving kneeling, squatting, crouching, prolonged walking or standing, and walking up or down inclines, steps or ladders. He may also have a permanent limitation upon sitting for prolonged periods, lifting and carrying. As a consequence of his physical injury (right knee) Mr King has no capacity to ever perform his pre-injury duties. As a consequence of his physical injury (right knee) Mr King has no current capacity for any employment. He will however, have a future capacity to perform sedentary or light self paced work duties. Such employment would initially be on a part time capacity. Mr King is likely to require education or retraining to take on such alternative employment.”
·In a further report dated 20 February 2012, Dr McDonald opined and certified Mr King as having a limited capacity to sit or stand for extended periods, commenting, he is capable of working up to 15 hours per week, and, commenting further, that he can sit and stand for up to forty minutes at a time before needing to stand or walk for at least five to ten minutes. He can stand and walk for up to thirty minutes before needing to rest the knee.
5 These reports satisfy me that the plaintiff's present capacity for physical activity is stabilised and is, most likely, at its high point given the general view expressed by each of the experts, that the plaintiff's condition is deteriorating and will continue to do so.
6 As to that capacity, I am of the opinion that the video evidence relied upon by the defendant has little probative relevance for the following reasons:
(i) Firstly, most of the video evidence was seen by Mr Elsner, and was obviously taken into account by him when expressing the opinion that he did in his most recent report.
(ii) Secondly, the activities undertaken by the plaintiff in the video were, in my opinion, in no way inconsistent with the medical evidence as to the plaintiff's expected capacity for activity or his viva voce evidence as to those capacities.
(iii) Thirdly, I accept the plaintiff’s evidence in which he explained the activities depicted in the video and he readily conceded his ability to undertake the subject activities.”[1]
[1]See the plaintiff’s evidence at T 68-71 and T 80-81
7 In assessing the issue as to whether the plaintiff has a retained capacity for full-time or part-time work, I note that a number of the medical practitioners to which I have referred, were silent on this issue when they expressed their opinion as to the plaintiff’s working capacity.
8 Whilst I interpret Mr Elsner's position as being one in which he takes the view that the plaintiff's retained capacity is one for full-time appropriate work, the reports of Mr Byrne and Mr Miller are, in my opinion, structured such that they indicate that neither of those experts expressed a view, concluded one way or another as to whether plaintiff retained a capacity to engage in suitable employment on a full-time or part-time basis.
9 Both Dr Middleton and Dr McDonald opine that the plaintiff is now fit to engage in part-time work only. As to those opinions, I am of the opinion that:
· Dr Middleton, as an occupational health and rehabilitation consultant, is well placed to comment upon the issue as to whether the plaintiff retains a capacity for full or part-time work;
· Notwithstanding that Dr McDonald is a general practitioner and may have less expertise in this area than Dr Middleton, he remains well placed to opine upon the issue given his position as the plaintiff's treating general practitioner and the intimate knowledge that relationship affords him with respect to the plaintiff's symptoms and his capacities.
10 In forming a view as to the nature of the plaintiff's retained capacity for employment, I accept the plaintiff's evidence that he was and remains keen to find suitable employment. His evidence in this respect was not the subject of challenge and is, in my opinion, supported by:
(i) the plaintiff’s attempts to find work as set out in the plaintiff’s affidavit;[2]
(ii) the fact that between April 2004 and October 2008, the plaintiff undertook the restricted duties provided for him by the defendant until he was effectively ejected from the defendant's premises.
[2]Plaintiff’s Court Book (“PCB”) 21E
11 It is of considerable significance, in my opinion, that the plaintiff, at the time at which he last worked for the defendant, was struggling to carry out the duties required of him in his employment, and was, in effect, capable of performing those duties only on a part-time basis, averaging some 20 hours or so per week.[3]
[3] In making these comments, I do so on the basis of my acceptance of the plaintiff's evidence at T 55, L24 – T 56, L13; T 98, L21 – T 99, L15
12 In my opinion, given the general tenor of the medical evidence as to the capacity which the plaintiff possessed for restricted duties as at October 2008, namely that his capacity was greater in 2008 than it is at the present time by reason of the deterioration in this plaintiff’s condition since that time,[4] the plaintiff's demonstrated capacity for work in suitable employment with the defendant in 2008 provides strong support for the opinions expressed by Dr Middleton and Dr McDonald that the plaintiff's present capacity for work is one which is part-time in nature rather than full-time, and most probably limited to a maximum of some fifteen hours per week.[5]
[4]See, for example, Mr Elsner’s comments at Defendant’s Court Book (“DCB”) 24E on this point
[5] Although Dr McDonald agreed in the course of cross-examination that this was a position which was an estimate only, I did not take his concession in this respect to be a retraction of the opinion expressed by him in his report, nor was he specifically challenged as to that opinion.
13 Further support for this position is found, in my opinion, in:
(i) the plaintiff's recent failed attempt to undertake the work referred to by him in paragraph 4 of his affidavit of 23 February:
(ii) the plaintiff's evidence as to his reduced reliability, given the lack of predictability of his symptoms, which evidence is supported by the comments made by Dr Middleton at Plaintiff's Court Book 85 and which I accept.
14 For these reasons, I am satisfied that the plaintiff's retained capacity for employment is one which is part-time and is most probably limited to a maximum of some 15 hours or so per week.
15 I accept the plaintiff's evidence that he was, at best, an average student and that he had difficulty coping with the tasks required of him in terms of the education requirements associated with his trade, both as an auto electrician and as an electrician. [6]
[6] See the plaintiff’s evidence at T 41-43
16 Further, the plaintiff's evidence as to the success of his venture into self employment, which I accept, suggests that the plaintiff is not suited to employment which requires the application of managerial-type skills.[7]
[7]See the plaintiff’s evidence at T 30 and T 94-95
17 I am satisfied in these circumstances that the plaintiff's prospects of retraining are limited and, accordingly, that the activities which have been identified by the author of the Ayres Vocational Assessment Report appearing at DCB 34‑50, adequately canvass the employment prospects now available to the plaintiff.
18 As to the approach which I should take in undertaking the calculations required of me under the Act, I do not accept the defendant's position that the state of the evidence is such that the plaintiff has not made out his burden of providing me with the material necessary to carry out that task.
19 The material contained in the Ayres Report canvasses a number of employment activities, including those involved as an accounts manager; a sales clerk; an order clerk; a tourist information officer; a ticket seller; a weighbridge operator and a market research interviewer.
20 The range of these employment activities, in my opinion, provides a reliable yardstick by which I am able to assess the plaintiff's retained earning capacity. I make this comment, taking particular note of the fact that the author of the report recognised the fact that the plaintiff's present capacity for work was, initially at the very least, part-time in nature.[8]
[8]See comments of the author at DCB 47
21 Given the plaintiff's evidence as to his academic performance, both at school and thereafter, and the general level of his computer skills,[9] I have significant doubts as to whether the plaintiff truly possesses the capacity to obtain and carry out employment as an accounts clerk. Be that as it may, it seems to me that a safe and conservative approach to the task which I am required to take is to employ the income available to the plaintiff as an accounts clerk as a yardstick of the range of income which the plaintiff might be capable of achieving in employment on a part-time basis.
[9]See the plaintiff’s evidence at T 41-43 and T 46
22 The gross average wage of an accounts clerk is set out at page 8 of the Ayres Report,[10] where the figure of $1,133 average gross per week is quoted. Whilst it is put on behalf of the defendant that account should be taken of the fact that if employment was undertaken on a part-time basis, a loading would be available which would increase the hourly rate to be applied to that wage, in my opinion, given that any such loading is applied for the purpose of making up for the loss of entitlements which are associated with full-time employment such as sick leave, holiday pay, the method of employing the income figure identified in the Ayres Report of $1,133 and dividing that figure by 38 to assess the hourly rate to which the plaintiff would be entitled in suitable like part- time employment, it is an appropriate approach to employ.[11]
[10]DCB 41
[11] It is put on behalf of the defendant that the plaintiff’s earnings during the years which immediately preceded his injury (which were restricted by reason of his Achilles tendon condition) should be employed as yardstick of the plaintiff’s present earning capacity in suitable employment. Given the fact that there is no evidence as to the activities which the plaintiff was required to perform in that work, I do not find this position at all persuasive.
23 In the circumstances, it seems to me that the appropriate approach to take in assessing the figure which is now representative of the plaintiff's retained capacity of employment, is:
(i) to take the figure identified in the Ayres Report of $1,133 per week;
(ii) to divide that figure by 38 to produce an hourly rate ($29.81 per hour); and
(iii) to multiply that figure by 15 ($447.00 per week).
and thus determine the average gross weekly wage which represents the plaintiff's retained capacity in suitable employment during the 15 hours per week which I have found to be the plaintiff’s capacity for part-time work.
24 When one employs this process, the figure which is generated falls so well short of that which is agreed by the parties as being the threshold for this application, namely $1,027 per week, that I have no doubt that the plaintiff has established his entitlement to the leave which he seeks in this proceeding.
25 For these reasons, I am satisfied that the plaintiff is entitled to an order granting him leave to commence a proceeding seeking damages for the pecuniary loss and non-pecuniary loss consequences associated with the injury the subject of this application and I will hear the parties as to the precise form of the order which should be made and also upon the issue as to costs.
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