Leslie v Paccar Australia Pty Ltd
[2009] VCC 536
•8 May 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-02552
| DARRYL LESLIE | Plaintiff |
| v | |
| PACCAR AUSTRALIA PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 April 2009 |
| DATE OF JUDGMENT: | 8 May 2009 |
| CASE MAY BE CITED AS: | Leslie v Paccar Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0536 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – plaintiff suffered injury to his lower back – whether pain and suffering consequences were at least very considerable – whether loss of earning capacity consequences were at least very considerable – whether the plaintiff failed to discharge the onus of proof under subsections (19)(b) and (38)(g) in proving loss of earning capacity where he had not undertaken any rehabilitation or retraining – section 134AB(19)(b) and subsections (38)(c) and (g)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with | Winn Legal |
| Mr D Gillard | ||
| For the Defendants | Mr J Parrish SC with | Minter Ellison |
| Ms M Taaffe | ||
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 26 June 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the first defendant on 20 August 2001.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Mighell SC appeared with Mr D Gillard of Counsel for the plaintiff and Mr J Parrish SC appeared with Ms M Taaffe of Counsel for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • The plaintiff tendered the following evidence:
ƒ The Plaintiff's Court Book ("PCB") pages 8-121: Exhibit A ƒ Reports of Farquhar & Associates Pty Ltd dated 10 May 2004 and
20 February 2006: Exhibit B.
• The defendants tendered the following evidence: ƒ The plaintiff's taxation return for the year ending 30 June 2000:
Exhibit 1
ƒ The plaintiff's taxation return for the year ending 30 June 2001:
Exhibit 2
ƒ The plaintiff's taxation return for the year ending 30 June 2006:
Exhibit 3
ƒ The Defendants’ Court Book (“DCB”) pages 1-20 and 25-99:
Exhibit 4.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) 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. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born on 12 December 1966. He is now forty-two years of age. He is in a relationship with his female partner. There is one child of that relationship. The plaintiff has three other children who are about twenty-one, seventeen and fifteen years of age who live with their mother.
10 The plaintiff attended the Prospect High School in Tasmania, leaving school at fifteen years of age after completing Year 9. Subsequently, he worked in general labouring work in Tasmania and interstate.[5]
[5] PCB 9-10
11 On 8 August 2001, the plaintiff commenced employment with the first defendant which trades as "Kenworth Trucks" at its Bayswater plant as a plant operator.
12 On 20 August 2001, the plaintiff was manually lifting a 50 kilogram brake set onto a bench for the purpose of completing the assembly of the brake set before it was transferred to an axle mounting. As he lifted the brake set he felt severe pain in his lower back.
13 The plaintiff spoke to a fellow employee, Domenic Lamanna, who told the plaintiff that he should not report that the incident occurred in that way, but that it occurred as a result of bending over to pick up a spanner. The plaintiff went along with what Domenic Lamanna suggested. The reason advanced by Domenic Lamanna that the plaintiff should conceal the real mechanism of the incident was because the plaintiff should have used an overhead crane rather than lifting the brake set manually.[6]
[6] Transcript 30-31
14 The plaintiff reported the incident and completed a claim form which he signed on 6 September 2001. In the claim form he described, in answer to Question 19, that he was lifting and turning a Kenworth brake set when he suffered injury.[7]
[7] DCB 1-3
15 Initially the plaintiff was treated by Mr Paul Randles, physiotherapist, who gave him acupuncture, ultrasound and advice regarding exercise.[8] He was referred to Dr Boctor, general practitioner, by Mr Randles. The plaintiff first saw Dr Boctor on 28 August 2001.
[8] PCB 13
16 Dr Boctor considered that the plaintiff had suffered a soft tissue injury and advised him to continue with physiotherapy and to use Naprosyn for pain relief. Despite some issues between the plaintiff and Dr Boctor about whether the plaintiff wanted to continue seeing Dr Boctor and Mr Randles, Dr Boctor referred the plaintiff to have a CT scan which was taken on 21 September 2001.
17 Dr Boctor examined the CT scan and noted posterior bulging of the L2-3 disc and evidence of a focal disc protrusion at L4-5 entering the left L4-5 neural canal.[9]
[9] PCB 50
18 Dr Boctor referred the plaintiff to Mr Chamberlain, orthopaedic surgeon, who first saw the plaintiff on 24 September 2001. On the occasions Mr Chamberlain saw the plaintiff, the plaintiff complained of pain in his lower back with intermittent aching in his legs. Mr Chamberlain referred the plaintiff to have an MRI scan which was taken on 17 December 2001 which showed a posterolateral protrusion at L4-5 causing left foraminal narrowing.[10]
[10] PCB 29 and 52
19 Mr Chamberlain referred the plaintiff to have an epidural injection into his lower back which was undertaken on 8 March 2002 without giving the plaintiff any significant improvement. He considered that conservative treatment was appropriate for the plaintiff. It is clear from Mr Chamberlain's report dated 2 July 2002 that the plaintiff was taking anti-inflammatory and analgesic medication and was having physiotherapy.[11]
[11] PCB 29
20 The plaintiff also saw Dr Soo, general practitioner, on 6 September 2000. He prescribed the plaintiff Valium, Tramal and Celebrex, and advised him to have physiotherapy. The plaintiff stopped seeing Dr Boctor and continued with his treatment with Dr Soo until July 2002.[12]
[12] PCB 34-35
21 The plaintiff’s attempts to return to work in August and September 2001 failed.[13] The plaintiff was made a further job offer on 20 June 2002 which coincided with the plaintiff making the decision to return to Tasmania. The plaintiff and his partner purchased tickets for travel on the Spirit of Tasmania leaving Victoria on 8 July 2002. He and his partner had also vacated their rented premises and sold their furniture.[14]
[13] PCB 15-16 and Transcript 36
[14] Transcript 49
22 The plaintiff returned to Tasmania and has lived there with his partner and infant child at Clarence Point. His parents and the parents of his partner live nearby.
23 After returning to Tasmania, the plaintiff first saw Dr Hewson, general practitioner, at the Exeter Medical Centre on 26 July 2002, and subsequently saw Dr Clarke, general practitioner, at the same clinic and continues to see him.[15]
[15] PCB 41-48
24 Dr Clarke has principally treated the plaintiff by the prescription of painkilling medication, referral to physiotherapy and advice regarding exercise. The plaintiff said that he currently takes Tramal for pain relief, Valium as a muscle relaxant and Tegretol for pain relief at night.[16]
[16] Transcript 12
25 In his last report dated 27 January 2009,it would appear that Dr Clarke formed the view that the plaintiff should have surgical management for his lower back injury.[17]
[17] PCB 48
26 The plaintiff was referred to Mr Liddell, neurosurgeon, by Dr Hewson. The plaintiff saw Mr Liddell about eight weeks after he arrived in Tasmania. Mr Liddell referred the plaintiff to have a further MRI scan which was taken on 27 September 2002. Mr Liddell was of the opinion that the MRI scan showed disc degeneration at L1-2 and L2-3, and to a lesser extent at L4-5. He was also of the opinion that it revealed a small, but significant left paracentral disc herniation at L2-3 with a degree of foraminal stenosis on the left side of L4-5.
27 Mr Liddell was of the opinion that he could not offer the plaintiff any treatment to improve his situation. He suggested that the plaintiff speak to Dr Hewson to consider having diagnostic facet blocks.[18]
[18] PCB 36-40
28 Dr Clarke has given the plaintiff a referral to see a Mr Edis, orthopaedic surgeon, in September 2009 to obtain a surgical opinion. The plaintiff said that he is to see Mr Edis at the suggestion of Dr Clarke. He said he would give consideration to surgery if it was recommended.[19]
[19] Transcript 16
The Issues
29 Mr Parrish submitted that there was broad agreement by the medical practitioners who have examined the plaintiff that he suffered injury to his lower back consistent with a disc injury, however, Mr Parrish submitted that I should not be satisfied that the injury resulted in an impairment which was permanent.
30 Mr Parrish also submitted that I should not be satisfied that the plaintiff had suffered the requisite degree of loss of earning capacity, and he particularly emphasised the fact that the plaintiff has not made any real attempts to obtain suitable employment in all the time he has been in Tasmania. Mr Parrish referred me to section 134AB(38)(g), in particular submitting, that in the absence of the plaintiff complying with the requirements of that subsection, he could not succeed with his application insofar as it related to loss of earning capacity.
The Medical Evidence
31 The preponderance of the medical evidence discloses that the plaintiff suffered a discal injury to his lower back which was materially contributed to by his work, whether it was picking up a spanner or lifting the brake set.
32 Given the submission made by Mr Parrish relevant to the issues raised by this proceeding, I intend to provide only a short summary of the medical evidence:
•
Dr Clarke considered that the plaintiff had suffered a lower back injury with a left paracentral disc herniation at L2-3 and also damage at L1-2 and L4- 5.[20]
•
Mr Chamberlain considered that the plaintiff had suffered a lumbar disc strain without major prolapse.[21]
•
Mr Liddell considered that the plaintiff suffered an injury to his lumbosacral spine, however, he was unable to determine the precise aetiology of the source of the plaintiff's ongoing symptoms.[22]
•
Mr Simm, orthopaedic surgeon, considered that the plaintiff was suffering from multilevel disc degeneration with evidence of left posterolateral L4-5 disc protrusion resulting in the left sided sciatica.[23]
•
Mr Klug, neurosurgeon, considered that the plaintiff sustained an injury to the L4-5 intervertebral disc.[24]
•
Dr Horsley, occupational physician, was of the opinion that the plaintiff was suffering from mechanical back pain, which she appears to have based upon her interpretation of the MRI scan of 27 September 2002. [25]
•
Mr Kossman, orthopaedic surgeon, considered that the plaintiff was suffering from lower back pain and a chronic pain syndrome affecting his lower back.[26]
•
Mr Moran, orthopaedic surgeon, considered that the plaintiff suffered a chronic lumbar disc injury, and it would appear that he accepted that there was a moderate-sized left posterolateral disc prolapse at L4-5 consistent with compression of the left L5 nerve root.[27]
•
Mr Shannon, orthopaedic surgeon, considered that the plaintiff had suffered an aggravation of lumbar disc degeneration and a lumbar disc prolapse at L4-5.[28]
•
Dr Baynes, occupational physician, considered that the plaintiff was suffering from a prolapsed disc at his lower lumbar level, presumably meaning he accepted that there was a disc injury at L4-5.[29]
[20] PCB 48. The other general practitioners, Dr Boctor and Dr Soo, did not give a diagnosis, although by implication they seem to have accepted the opinion of Mr Chamberlain
[21] PCB 28
[22] PCB 40
[23] PCB 60
[24] PCB 81 and 87
[25] PCB 93-94
[26] PCB 100
[27] PCB 120-121
[28] DCB 74 and 80-81
[29] DCB 89
33 Although the CT scan taken on 20 September 2001 demonstrates discal abnormality at a higher level in the lumbar spine, it appears that the surgeons who have examined the plaintiff have directed their attention more to the disc injury at L4-5 as being the real source of the problems encountered by the plaintiff. Dr Clarke appears to be the only medical practitioner who continued to consider that the discal abnormality at the higher level was the real source of the problems encountered by the plaintiff.
34 I find that the plaintiff did suffer a discal injury to his lumbar spine, particularly at L4-5, with probable aggravation of pre-existing degenerative changes. Whilst I do not have to determine whether the injury occurred as a result of the plaintiff lifting a spanner or a brake set, it is more probable than not that he suffered that injury as a result of lifting the brake set.
35 I consider that his explanation for giving a misleading account of how the incident occurred as a result of his conversation with Dominic Lamanna to be plausible because when it came time for him to complete the workers’ claim form he referred to the incident occurring when he lifted a brake set at a time which is broadly contemporaneous with the occurrence of the incident (some seventeen days later), and at a time before he had sought any legal advice, but at a time when he realised the seriousness of his lower back condition.
36 In any event, Mr Shannon puts the issue at rest in accepting that if the incident involved bending to pick up a spanner then the physical activity involved in that could have precipitated a prolapse of the L4-5 disc where it was to degenerate.[30]
[30] DCB 81
Permanency
37 Mr Parrish submitted that the fact that the plaintiff has been referred to Mr Edis for a surgical opinion must go to the question of whether the impairment is permanent because if the plaintiff undergoes surgery he may have the condition of his lower back ameliorated.[31]
[31] Transcript 80-81
38 I reject this submission for a number of reasons. Firstly, it invites me to speculate that Mr Edis will recommend surgery and that the plaintiff will undergo it and will see his damaged lower back reinstated to such a degree that no impairment will exist.
39 Secondly, in order to go even part of the way down that track I would need evidence pointing to the prospect of surgery improving the plaintiff's lower back condition. The medical evidence is to the contrary. Neither Mr Chamberlain nor Mr Liddell, both treating surgeons, considered surgery as a treatment option. Of the other surgeons who have examined the plaintiff on a medico-legal basis, none recommend surgery, and indeed, Mr Klug, Mr Kossman, Mr Moran and Mr Shannon also were content that the plaintiff should continue with his present treatment regime. In the case of Mr Klug and Mr Shannon, they specifically address the issue of surgery, saying that it is unlikely to help the plaintiff.[32]
[32] Mr Klug at PCB 88 and Mr Shannon at DCB 74
40 It is common enough in proceedings of this kind to see workers continuing to receive active treatment. The fact that the plaintiff has been referred to Mr Edis is not such a momentous event as Mr Parrish submits it might be. I prefer to consider it as another step taken by an interested general practitioner to see if there is some solution for the plaintiff, but I have to measure that against the evidence of well-known surgeons of the highest rank who dismiss surgery as being a viable option.
41 It would be another matter if the surgeons who have examined the plaintiff were strongly of the opinion that the plaintiff should have surgery and that it would return the plaintiff to some level of good health.
42 Therefore, I am not persuaded that there is an issue in this proceeding to suggest that the plaintiff has not suffered a permanent impairment. Indeed, I think the evidence is very much the other way.
Serious Injury
Pain and Suffering
43 The substantive submission made by Mr Parrish on the issue of pain and suffering consequences was whether the impairment was permanent. He did not strenuously submit that the plaintiff had not suffered an injury nor that the consequences may well equate with being at least very considerable.
44 However, it has been left to me to consider whether the pain and suffering consequences for which the plaintiff contends are at least very considerable.
45 I should firstly turn back to the medical evidence which is essentially all one way. The medical practitioners who have examined the plaintiff on a medico- legal basis essentially are of the same mind that the plaintiff has suffered a lower back injury of such degree that it is consistent with the complaints made by the plaintiff and the extent to which he claims he is disabled.
46 Certainly Dr Clarke, whose clinic has had the care of the plaintiff’s medical condition since July 2002, has been in a very good position to make a judgment about the plaintiff. The most telling opinion he has expressed in the many reports he has provided is contained in his report dated 22 February 2007:
"Darryl’s back injury is quite severe. He has multiple level disc disease involving L1/2, L2/3 and L4/5 discs. He has a severe L2/3 rupture putting pressure on the spinal canal. He also has L4/5 neural foraminal narrowing of the left side trapping his nerve to his left leg. These two lesions are causing his left leg numbness and weakness. He has been assessed for surgical management. The surgeons say that they could do some surgery to try and stabilise these areas of his back, but they could not guarantee that this would ease his symptoms and allow him to get back to work. He has, therefore, sensibly opted for conservative management for his back disease.
Darryl is still getting pain in his lumbar back with left leg numbness and weakness on a daily basis. He gets frequent exacerbations of intense pain and these are often several per week. He is basically unemployable with his current symptoms and this is for any paid work. Because of Darryl's symptoms, he has not worked since his injury."[33]
[33] PCB 46-47
47 The observations of Dr Clarke and his opinion are consistent with the opinions of the surgeons who have examined the plaintiff on a medico-legal basis: Mr Simm;[34] Mr Klug;[35] Mr Kossman;[36] Mr Moran[37] and Mr Shannon.[38]
[34] PCB 60
[35] PCB 87-88
[36] PCB 101-102
[37] PCB 121
[38] DCB 81-82, although Mr Shannon was of the opinion that the plaintiff was and has been theoretically capable of light work, such as process work, with restrictions to avoid prolonged or repetitive bending or heavy lifting and with the option of varying his posture
48 In his affidavit sworn 15 March 2004, the plaintiff described suffering constant pain at variable levels in his lower back with symptoms extending into his left leg as far as his left foot from time to time. He said that he has difficulty finding a comfortable position; experiences more pain when he sits for too long; limps from time to time because of symptoms affecting his left leg; has difficulty sleeping; has suffered an impairment of his capacity to engage in a sexual relationship with his partner, and has difficulty bending and lifting and undertaking domestic activities such as mowing lawns.[39]
[39] PCB 22-23
49 The plaintiff swore a second affidavit on 27 November 2007, essentially confirming that he is unable to work as a consequence of suffering the injury to his lower back.[40]
[40] PCB 26-27
50 The plaintiff has a criminal record which was not relied upon to any great extent by Mr Parrish, however, it does tell something about the plaintiff. He was imprisoned for assault in 1986 for a period of four months. He was convicted of drink driving in 1996 and was imprisoned for three months. He was convicted of drink driving again in 2004 and was imprisoned for three months.[41]
[41] PCB 23
51 The plaintiff said that he has not consumed any alcohol since he served his last term of imprisonment in 2004. The plaintiff conceded that 2002 and 2003 were something of an alcoholic haze for him.[42]
[42] Transcript 20
52 In addition to adopting his affidavits as his evidence-in-chief, the plaintiff repeated during cross-examination and re-examination the nature and extent of the consequences to him of suffering the injury to his lower back. The plaintiff confirmed that he experiences constant pain in his lower back which increases depending upon the activity he engages in; that he has difficulty occupying postures like sitting and standing and his capacity to bend and lift is very limited, and that he spends a great deal of time lying on his bed during the day.[43]
[43] Transcript 10-11 and 25-27
53 I find that the plaintiff has suffered a disc injury in his lower back, principally at L4-5, and an aggravation of pre-existing degenerative changes which have produced significant pain in the plaintiff’s lower back and intermittent pain in his legs. I also find that the plaintiff is significantly incapacitated to the extent described by him in his affidavits and in his oral evidence.
54 I am fortified in reaching those conclusions because of the unanimity of the examining medical practitioners who, with understandable variations in emphasis, essentially tell the same story about the plaintiff that he has an injury of real significance which impairs the function of his lower back and is an injury of such magnitude that it is consistent with the consequences which the plaintiff described.
55 It must be remembered that the plaintiff is a young man. He is now forty-two years of age. He has a partner who works at the nearby Maritime College and who otherwise sees to most of the domestic tasks required for the family unit to survive. I accept that the plaintiff does very little and is in that situation because of injury to his lower back and the impairment that it has caused .
56 It must also be remembered that the plaintiff is under active medical treatment at the hands of Dr Clarke and relies heavily on medication for the purpose of controlling the pain he experiences.
57 Therefore, I find that the injury to the plaintiff’s lower back has caused him such a degree of impairment of the function of his lower back as to produce consequences which I consider deserve the description “at least very considerable”, and I have reached that conclusion after making the comparison that I am required to make as described in my discussion of the statutory scheme.
Loss of Earning Capacity
58 It is clear enough from the opinions of the medical practitioners who have examined the plaintiff and have been asked to express an opinion about the plaintiff's capacity for work that it is really only Mr Shannon[44] who suggests that the plaintiff has a theoretical capacity to undertake suitable employment. Otherwise the other medical practitioners whose opinions I have referred to in paragraph 47 above essentially agree that the plaintiff is unfit to perform his pre-injury work and is essentially unfit for any work for which he is qualified.
[44] Mr Klug expressed an opinion that would be difficult to define suitable work for the plaintiff and consider that it was a possibility that the plaintiff could undertake light physical work at PCB 88
59 Mr Parrish concentrated his attack on the plaintiff's claim for loss of earning capacity on the fact that since the plaintiff left Victoria and returned to Tasmania he has not undertaken any rehabilitation or retraining in order to determine whether he has a capacity for work, and therefore, that he has not discharged the onus he bears under subsection (19)(b) of the Act, and more particularly, under subsection (38)(g), which provides that the plaintiff cannot establish a loss of earning capacity until he meets what is required under that subsection.
60 Mr Parrish cross-examined the plaintiff at some length about the way he behaved when a functional capacity evaluation was conducted through an organisation known as NabEnet, by Mr Jans, physiotherapist. Essentially, Mr Jans concluded that the plaintiff was not working to his maximum effort and was exaggerating his symptoms. The plaintiff denied the allegations made by Mr Jans.[45] The extent of the plaintiff’s alleged failures when tested and the degree of his exaggeration is not the subject of any observation by medical practitioners who examined him except perhaps for Mr Kossman, who considered that the plaintiff had a chronic pain syndrome, but I am uncertain whether he meant that in the sense of it being physically derived or psychologically derived.[46]
[45] Transcript 36-37
[46] PCB 101. In contrast is the observation of Mr Moran, who found no evidence of inconsistency, exaggeration or abnormal illness behaviour when he examined the plaintiff on 23 March 2009, at PCB 121
61 Mr Mighell submitted that it is unnecessary for me to consider subsection (38)(g) because the medical opinions are such that in applying the value judgment required of me there is little or no medical support for the proposition that given the plaintiff's age, his educational background and his vocational background, together with the fact that he is now living in an isolated rural community where there are very few jobs available, inevitably leads to the conclusion that the plaintiff is simply not fit for suitable employment.[47]
[47] Transcript 48 and 52
62 I find that there was nothing unreasonable about the plaintiff's move from Victoria to Tasmania. I accept his evidence that he was injured and labouring significantly under the consequences of that injury in terms of his capacity to continue working. His family and that of his partner are in Tasmania and now living in close proximity to the plaintiff and his partner and are obviously of considerable assistance to him, as emerged from the cross-examination of the plaintiff regarding the plaintiff's child and who it is who assists the plaintiff and his partner in looking after the child.[48]
[48] Transcript 19-20
63 It occurs to me that in order for me to accept the submission made by Mr Parrish that the plaintiff has failed to discharge the onus of proof that he bears, there must be an evidentiary basis upon which that submission is made that the plaintiff does have a capacity for suitable employment, and when subsection (38)(g) is applied, where no effort has been made to undertake rehabilitation or retraining, then the failure to discharge the onus might well be evident.
64 I do not consider that the opinions of Mr Shannon and Mr Klug regarding the plaintiff's capacity to return to suitable work are much more than speculative and not based upon evidence they found which realistically pointed to the plaintiff having an actual capacity to return to suitable work.
65 I find that the plaintiff has suffered an impairment of his lower back of such a degree that he is unfit for suitable employment given his educational background and vocational background, and the fact that he is now living in a semi-rural part of Tasmania where job opportunities which might possibly be suitable are absent.
66 It is one of the considerations which I must have regard to given the definition of "suitable employment" in section 5(1) of the Act. The definition requires me to take into account the worker's place of residence. The plaintiff's present position is not dissimilar to the example made by the Court of Appeal in Barwon Spinners v Podolak (supra) when it dealt with section 5(1), and in particular, paragraph (c) – “the worker's place of residence”. The Court of Appeal referred to the situation of a worker who was resident in Melbourne, where work available in Mildura would not be regarded as suitable because it was too far away.[49]
[49] at 636
67 There are a combination of reasons why I find that the plaintiff has no capacity for work – he has a seriously disabling injury according to all of the medical practitioners, rendering him unfit for his pre-injury employment and only providing him with a capacity which gives him some possibility of being fit for suitable employment; his age, educational background and vocational background, and the fact that he is living in a rural location in Tasmania where his job prospects are poor.
68 Therefore, I find that the impairment of the function of the plaintiff’s lower back has resulted in him having no realistic earning capacity which is permanent and which I consider deserves the description of “at least very considerable”, and again I have reached that conclusion by making the comparison that I am required to make as described in my discussion of the statutory scheme.
Conclusion
69 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of his employment with the first defendant on 20 August 2001.
70 After discussion with Counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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