Latter v Crown Resorts Limited (ACN 125 709 9531)
[2018] VCC 453
•18 April 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-04504
| JOHN WILLIAM LATTER | Plaintiff |
| v | |
| CROWN RESORTS LIMITED (ACN 125 709 9531) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 April 218 | |
DATE OF JUDGMENT: | 18 April 2018 | |
CASE MAY BE CITED AS: | Latter v Crown Resorts Limited (ACN 125 709 9531) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 453 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – right shoulder injury – concession that the pain and suffering consequences meet the statutory test of seriousness – whether the plaintiff retained a residual capacity for suitable employment – secondary psychiatric condition – whether the consequences of the secondary psychiatric condition called for disentangling
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167
Judgment: The plaintiff has leave to recover damages at common law for pecuniary loss for the injury he suffered in the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Worth | Verduci Lawyers |
| For the Defendant | Mr B R McKenzie | Thomson Geer |
HIS HONOUR:
Introduction
1 The plaintiff is a sixty year old man who suffered a major injury to his right shoulder in the course of his employment with the defendant. He worked as a games dealer for the defendant. The nature of his work resulted in him suffering sharp pain in his right shoulder on 5 January 2016, which troubled him significantly thereafter.
2 The defendant conceded that the pain and suffering consequences of the impairment of the function of the plaintiff’s right shoulder meets the statutory test. However, it submitted that the plaintiff retained a capacity for suitable employment, and more particularly, as a table games area manager.
3 Mr G Worth of counsel appeared for the plaintiff. Mr B Mackenzie of counsel appeared for the defendant.
The Injury
4 The plaintiff was referred by his general practitioner to Mr Pullen, orthopaedic surgeon, for treatment. The plaintiff first saw Mr Pullen on 10 February 2016. Mr Pullen obtained the results of a number of radiological investigations which led him to conclude that the plaintiff “showed evidence of a very significant rotator cuff tear with tendon retraction and atrophy of the supraspinatus muscle”.[1]
[1]Plaintiff’s Court Book (“PCB”) 56
5 The plaintiff accepted Mr Pullen’s advice and underwent a right shoulder arthroscopy, subacromial decompression, debridement and biceps tenodesis on 5 April 2016. Subsequent conservative treatment and review by Mr Pullen demonstrated that the plaintiff had obtained a very poor result from the surgery.
6 Mr Pullen considered that the plaintiff had “an irreparable right shoulder rotator cuff tear” and he then referred to the effect of that injury on the plaintiff in the following terms:
“At his review appointment on 15 November 2017, Mr Latter noted he had persistent problems with right shoulder pain and weakness. Based on my assessment at that time, I do not believe Mr Latter will ever be able to return to his pre-injury employment at Crown Casino. Mr Latter did indicate he was working two shifts per week in the Lost Property Department at Crown Casino. I believe this would be all that could be expected of Mr Latter with regard to his capacity for work.
Mr Latter will struggle with any activities into the future that involve lifting his arm above shoulder height or heavy lifting. This will no doubt impact upon his social and domestic activities … .”[2]
[2]PCB 58
7 Mr Pullen added that he considered that the plaintiff’s prognosis for his right shoulder was “very poor”, and that the only remaining treatment option was a tendon transfer procedure or a reverse total shoulder joint replacement.[3] Although, Mr Pullen did not say so, it is my impression that it is a treatment option of last resort.
[3]PCB 59
8 Mr Jones, orthopaedic surgeon, examined the plaintiff for the defendant on 13 February 2018. He agreed with Mr Pullen’s diagnosis of the plaintiff’s right shoulder injury, treatment options, and that the plaintiff did not have a capacity to return to his pre-injury employment.[4]
[4]DCB 70-72
9 Dr Kostos, rheumatologist, examined the plaintiff for the defendant on 14 December 2017. He expressed some serious reservations about the treatment which the plaintiff had undergone, and continued to undergo, but notwithstanding that, he was of the same opinion as Mr Pullen and Mr Jones. That is, that the plaintiff does not have a capacity to return to his pre-injury employment.[5]
[5]DCB 61
10 The plaintiff was examined by other treating and medico-legal medical practitioners whose opinions are consistent with the short summary I have given of the opinions of Mr Pullen, Mr Jones and Dr Kostos. Neither counsel pressed those opinions to any extent at all, and therefore, there is no point in referring to their opinions because the opinions of Mr Pullen, Mr Jones and Dr Kostos was submitted to me by the parties as lacking controversy except in one respect which I will return to shortly.
The issues
11 The issues raised by the defendant are:
· Whether the plaintiff’s alleged incapacity for suitable employment is contributed to by a psychiatric condition calling for disentangling.
· Whether the plaintiff is fit for work as a table games area manager.
The proposed suitable employment
12 Both Mr Jones and Dr Kostos were asked to consider a position description of a table games area manager. Both considered that the plaintiff had the physical capacity to undertake what they understood to be the duties of a person employed in that capacity, and that he could engage in that employment full time.[6]
[6]Mr Jones at DCB 73 and Dr Kostos at DCB 64
13 None of the treating or medico-legal medical practitioners who provided reports relevant to the plaintiff’s capacity for work were asked to comment on whether he could work as a table games area manager.
14 The description of what constitutes the range of responsibilities of a table games area manager is very extensive. The relevant document containing the job description commences with a summary of the position:
“Reporting to the Assistant Casino Manager, the Table Games Area Manager is accountable for the customer experience and employee performance across their area of business. The Area Manager is also responsible for implementing the business plan and driving the effective communication and achievement of key performance objectives (KPOs) within their area … .”[7]
[7]DCB 74. At DCB 76-80 there is a further document headed “Crown Position Description”
15 What follows that summary are a series of statements set out in columns headed - “Key Position Accountabilities”; “Key Activities and Tasks” and Outputs & Measures”. Under those columns, 30 per cent of the role involves “Customer Focus”; 30 per cent of the role involves “Teamwork and People Management”; 10 per cent of the role involves “Area Management Responsibilities”, and 10 per cent of the role involves “Compliance and Health & Safety”. The columns headed “Key Activities and Tasks” and Outputs & Measures” contain descriptions of the roles and responsibilities of a person occupying that position.
16 What the documents do not do is demonstrate what physical tasks are involved in performing the “Key Activities and Tasks” to achieve the “Outputs & Measures”. It must be the case that in order to meet the demands of what is contained in the documents, that there would be a need for some physical activity involved in performing work in that position.
17 Under cross-examination, and then re-examination, the plaintiff made two telling points: firstly, there are physical demands required in performing work in that position; and, secondly, he does not possess the education and training necessary to meet the supervisory functions which he would be called upon to undertake in that position.
18 I accept the plaintiff’s evidence that there are physical demands in performing work in that position. The examples given by the plaintiff were[8] the necessity to replace a dealer if the dealer fell sick with the need to take over straight away, and coaching and development, which would involve physical demonstration.
[8]Transcript 29, 31, 33, and 34
19 I am fortified in accepting the plaintiff’s evidence in that respect because he has knowledge of what the position involves. He applied for the position, but was unsuccessful.[9]
[9]Transcript 24
20 I am also fortified in accepting the plaintiff’s evidence because he returned to work, undertaking two shifts per week, comprising twelve hours per week in the defendant’s lost property department. This involved the plaintiff sitting at a desk, answering the telephone and entering lost property into a computer.[10] He last worked in that position in February 2018. I accept the plaintiff’s evidence that even though he was working limited hours in what appears to be relatively light work, he nonetheless experienced pain in his right shoulder which forced him to go home early because he could not handle the pain.[11] It is difficult to accept that if he had that degree of difficulty working in the lost property department, that he could work full time as a table games area manager.
[10]PCB 25
[11]Transcript 29
21 Furthermore, I accept the plaintiff’s evidence that his education is relatively modest. He just completed Year 10. Despite embarking on an apprenticeship as a plumber and doing work in the insurance field, I accept that he has little or no experience and training in the use of computers and in the administrative work that would be required as a tables games area manager.[12] I accept his own subjective assessment that his level of literacy and capacity to learn is rather more on the modest side.[13]
[12]Transcript 25
[13]Transcript 24, 25, 26, 30-31 and 32
Disentangling
22 The defendant submitted that a contributor to the plaintiff’s incapacity for work is the psychiatric condition referred to by Mr Karamanos, psychologist.
23 The plaintiff was referred to Mr Karamanos by his general practitioner. The plaintiff first saw Mr Karamanos on 27 March 2018, then again on 3 April 2018, and was to see him the day after the hearing before me. Mr Karamanos provided a comprehensive report of the plaintiff’s background, work circumstances and symptoms, leading him to conclude that the plaintiff was suffering from moderately severe depressive and anxiety symptoms. He considered that those symptoms rendered the plaintiff incapacitated for all types of work.[14]
[14]PCB 81 (k)
24 The defendant referred to two medical certificates which it submitted demonstrate the gravity of the psychiatric symptoms suffered by the plaintiff. The first Certificate of Capacity is dated 19 February 2018. It was prepared by the plaintiff’s general practitioner.
25 In relation to the plaintiff’s mental health function, his general practitioner crossed boxes on the Certificate stating that the plaintiff was not suffering from any impact upon his attention/concentration, memory or judgment.[15] That is to be contrasted with the subsequent Certificate dated 26 February 2018 in which the general practitioner crossed boxes that the plaintiff’s attention/concentration and memory are affected, and that in relation to his mental health function he was suffering stress, low mood and anxiety.[16]
[15]DCB 28-29
[16]DCB 31-32
26 The plaintiff submitted that I should not accept the defendant’s submission in the light of the opinion of Dr Entwisle, psychiatrist, who examined the plaintiff for the defendant on 4 December 2017. He considered, “from a strictly psychiatric perspective” that the plaintiff did not have a permanent incapacity for work, and that he was fit for his pre-injury employment.[17]
[17]DCB 56
27 Despite Mr Karamanos’ opinion, I am not persuaded that there is any need for disentangling. That is so because Mr Pullen, Mr Jones and Dr Kostos (among other medical practitioners) did not discern any contribution to the plaintiff’s incapacity for work by any psychological or psychiatric consequences of the injury to his right shoulder. Their opinions are based exclusively on the plaintiff’s physical injury and the extent to which it impairs the function of his right shoulder.[18]
[18]Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167
28 I accept the plaintiff’s evidence that if he were only suffering from a “psychological condition”, that he would probably be able to work.[19] I think that is compelling evidence which seriously calls into question the diagnosis made by Mr Karamanos.
[19]Transcript 28
Conclusion
29 Therefore, I am satisfied that the injury to the plaintiff’s right shoulder has impaired the function of his right shoulder to the extent that it has permanently rendered him incapacitated for his pre-injury work and for suitable employment. I have reached that conclusion by comparing that level of impairment with other cases in the range of possible impairments or losses. Furthermore, I am satisfied that the impairment of the plaintiff’s right shoulder can be fairly described as more than significant or marked and at least very considerable.
30 Based on the above, the plaintiff is granted leave to recover damages at common law for pecuniary loss for the injury he suffered in the course of his employment with the defendant.
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