Low v Victorian WorkCover Authority
[2014] VCC 456
•11 April 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01076
| HOCK LOW | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 April 2014 | |
DATE OF JUDGMENT: | 11 April 2014 | |
CASE MAY BE CITED AS: | Low v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 456 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to left knee – concession that pain and suffering consequences were “very considerable” – denial that loss of earning capacity consequences were “very considerable” – plaintiff retaining a residual capacity for suitable employment – return to suitable employment – whether plaintiff had a greater capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Judgment: Leave granted to the plaintiff to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison with Mr G Coldwell | Maurice Blackburn |
| For the Defendant | Mr I Gourlay | Hall & Wilcox |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 8 March 2013, the plaintiff seeks the leave of the Court, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, to bring a proceeding against the defendant to recover damages at common law.
2 The plaintiff submits that he has suffered a permanent serious impairment or loss of the function of his left knee. He claims that the pain and suffering consequences and loss of earning capacity consequences resulting from the injury to his left knee are at least very considerable.
3 Mr C Harrison SC appeared with Mr G Coldwell of Counsel for the plaintiff. Mr I Gourlay of Counsel appeared for the defendant.
4 At the commencement of the trial, Mr Harrison and Mr Gourlay announced that the defendant had conceded that the pain and suffering consequences resulting from the injury to the plaintiff's left knee were at least very considerable, and that the issue for me to determine was whether the loss of earning capacity consequences were at least very considerable.
5 The following evidence was adduced at the trial of the proceeding:
·The plaintiff tendered his Court Book (“PCB”), pages 8-18c and 45-122: Exhibit A.
·The defendant tendered its Court Book (“DCB”), pages 1-63; 75-80 and 82-83: Exhibit 1.
·Film taken of the plaintiff on 25 and 26 March 2014: Exhibit 2.
·Film taken of the plaintiff on 10 and 14 April 2013: Exhibit 3.
6 Mr Harrison called on Mr Gourlay to make admissions regarding the hours of surveillance undertaken by the defendant on the plaintiff. The admission was made; however, I do not consider that whatever advantage Mr Harrison sought from the admission is of any importance in this proceeding for reasons which will become obvious below.
The Plaintiff's background
7 The plaintiff was born in July 1964 in Malaysia. He is forty-eight years of age. He is a married man. He has two sons, who have completed their secondary schooling and who are both engaged upon University studies.
8 The plaintiff completed the equivalent of Year 12 in 1980 in Malaysia. He initially worked as a pastry chef in Malaysia. He migrated to New Zealand in 1981, where he qualified as a chef. His wife is also a qualified chef.
9 The plaintiff commenced running a restaurant business in 2010 with his wife and sons. The restaurant is known as the HD Café Bar & Grill. It is run as a family concern. The normal opening hours of the restaurant are from 8.30am am to 2.00pm, and then from 5.30pm to the time when the last customer leaves. The plaintiff opens the restaurant in the morning and in the late afternoon. His wife runs a childminding business from their home. At the end of her working day, she joins the plaintiff at the restaurant at 5.30pm and runs the front of the restaurant. The plaintiff's two sons assist in the running of the restaurant.
The Plaintiff’s injury
10 The plaintiff commenced employment as a chef with a restaurant business known as Purplestone Café Pty Ltd in 2005.
11 On 17 February 2005, the plaintiff was working as a chef at his employer’s restaurant. The floor around the dishwashing area was often wet. The floor in that vicinity was tiled. On that day, he slipped on the wet tiled floor, with the result that his left knee struck metal shelving.
The Plaintiff’s medical treatment
12 It is unnecessary for me to set out the whole of the medical treatment obtained by the plaintiff between the date of injury and the date of trial because the defendant conceded that the pain and suffering consequences were at least very considerable, and inherent in that concession is a concession that the plaintiff suffers a significant impairment of overall function of his left knee which logically extends to his capacity to undertake suitable employment.
13 I propose to summarise the opinion of Mr Hunt, orthopaedic surgeon, who treated the plaintiff. The plaintiff attended the Orthopaedic Outpatient Clinic at The Alfred hospital on 28 July 2005. He was examined by Mr Hunt on that occasion. He considered that the plaintiff had suffered a meniscal tear in his left knee. He undertook an arthroscopy on the plaintiff’s left knee on 2 November 2005, which revealed chondromalacia patellae. He performed a patella-chondroplasty.
14 Despite the arthroscopic procedure, the plaintiff continued to complain of persistent left knee pain. He was reviewed on a number of occasions. He was referred to have an MRI scan. Mr Hunt performed a second arthroscopy on the plaintiff's left knee on 11 September 2007. It revealed a tear of the medial meniscus which was debrided. It also revealed Grade 3 changes of the right medial femoral condyle and Grade 1 changes in the patella.
15 Mr Hunt reviewed the plaintiff on a number of occasions. Subsequently, the plaintiff developed pain in his right knee, for which he had an x-ray and an MRI scan.
16 The plaintiff was referred back to Mr Hunt by his general practitioner. He next saw him on 29 October 2010. The plaintiff told him that he was experiencing pain along the medial joint line of the left knee, especially on weight bearing. He said his left leg felt weak with activity. He said that he had developed lateral thigh pain and discomfort in his calf. The plaintiff’s right knee was also causing him pain. He had undergone an arthroscopy on that knee in May 2010 at The Alfred hospital. It would appear that was not performed by Mr Hunt. On the occasion of that examination by Mr Hunt, the plaintiff was using a walking stick. He told Mr Hunt that he was using Mobic (an anti-inflammatory) regularly each day, and Panadeine Forte for pain relief.
17 Mr Hunt referred the plaintiff to have an MRI scan of both knees. He next reviewed him on 13 December 2010. He considered that the plaintiff was suffering from intra-articular pathology and malalignment problems with both knees. It would appear that the plaintiff’s left knee was the most symptomatic, which led Mr Hunt to suggest that he have an arthroscopy to debride the left knee. That arthroscopy was undertaken on 17 May 2011. At arthroscopy, Mr Hunt found Grade [?] chondral fibrillation down to the bone over the medial femoral condyle, as well as superficial chondral fibrillation over the medial tibial surface. He also performed a resection of the medial meniscus and a chondroplasty of the medial femoral condyle.
18 Mr Hunt provided a number of reports which incorporate the complaints made by the plaintiff of persistent pain in his left knee. His last report is dated 3 March 2014. In that report, he described the plaintiff as suffering from severe medial compartment arthritis in both knees. He suggested that the plaintiff consider further treatment in the form of a high tibial osteotomy, and he considered that the plaintiff would ultimately need to consider a knee replacement.
19 Mr Hunt considered that the plaintiff will be restricted in his ability to sit, twist, bend, walk, stand, squat and ascend and descend stairs. He considered that the plaintiff was not fit for unlimited work because of the arthritic condition of his knees which would preclude him from long periods of standing or moving from a sitting to a standing position. He envisaged that the plaintiff would be able to work three to four hours per day in sedentary type work. He added that the plaintiff would need to move around to alleviate further symptoms of pain.
20 I should add at this point that Mr Harrison, in opening the plaintiff’s case, submitted that as a consequence of the injury to the plaintiff’s left knee, he suffered similar damage to his right knee. He submitted that there was a causal connection between the inability of the plaintiff to sustain stresses on his left knee which exposed him to extra stresses on his right knee.
21 The only other medical examination which I consider to be relevant is the examination of Mr M Dooley, orthopaedic surgeon. Mr Dooley examined the plaintiff on 12 March 2014. Mr Dooley commented upon the usefulness of arthroscopy in treating the condition affecting the plaintiff’s knees, and the constancy and intensity of the pain reported by the plaintiff to be more than he would expect to see. However, Mr Dooley appears to accept that the plaintiff has suffered a major problem with his left knee.
22 Mr Dooley considered that the plaintiff would continue to note intermittent pain in his left knee. He considered that the underlying degenerative medial compartment condition would continue to evolve to the extent that the plaintiff might need further surgical intervention in the future in the form of a knee replacement. In relation to the plaintiff’s capacity to work, he considered that the plaintiff would be able to carry out at least part-time employment as a chef or café owner or manager of a similar business. He added that the plaintiff would note difficulty with prolonged kneeling and squatting, and may note difficulty with prolonged standing in one position.
23 The foregoing is sufficient to demonstrate the reasoning of the defendant in conceding that the pain and suffering consequences of the plaintiff’s left knee are at least very considerable. As I have already commented, there is no useful purpose in summarising any of the other medical material. The foregoing is sufficient to demonstrate that the plaintiff has suffered a major injury to his left knee, which incapacitates him in a social, domestic, recreational and vocational sense to a fairly high degree.
The Plaintiff’s return to work
24 The plaintiff tried to continue working with his employer. He saw Dr Jones, general practitioner, on 23 May 2005 because he was finding it increasingly difficult to undertake his work as a chef. Dr Jones put him off work on medical certificates.
25 The plaintiff returned to work more as a consultant to friends who have restaurant businesses. The parties were content to describe the work the plaintiff performed through a schedule which summarises the gross earnings which the plaintiff earned from personal exertion. The schedule demonstrates, among other things, that the plaintiff commenced operating his own restaurant in the financial year ending 30 June 2011.
26 Before opening his restaurant, the schedule discloses the following:
· For the financial year ending 30 June 2006, he undertook consultancy work for a restaurant business known as Top Paddock. He was paid $15,631 by way of consultancy fees.
· For the financial year ending 30 June 2008, he also undertook consultancy work for Top Paddock. He was paid $18,078 by way of consultancy fees. Part of the way through that financial year, Top Paddock was purchased by a company known as Bigmont Pty Ltd.
· For the financial year ending 30 June 2009, he undertook consultancy work for Bigmont Pty Ltd. He was paid $20,181 by way of consultancy fees.
· For the financial year ending 30 June 2010, he undertook consultancy work for a restaurant business known as Four’s a Crowd Pty Ltd. He was paid $12,842.
27 Since opening his restaurant, it has been operated through a holding company and a family trust. In the subsequent complete financial years, the distribution from the trust to the plaintiff has been as follows:
· For the financial year ending 30 June 2012, a distribution of $20,559.
· For the financial year ending 30 June 2013, distribution of $18,000.
28 It was apparent during Mr Gourlay’s cross-examination of the plaintiff that he had the taxation returns of the plaintiff, the taxation returns of the holding company and the family trust. He anticipated tendering some of the financial documents relevant to the family trust, but did not do that at the time he closed his case and before he commenced his final address. The fact that the defendant had that material is of some significance, which I will refer to later in these reasons.
The present hours worked by the Plaintiff
29 Mr Gourlay cross-examined the plaintiff at some length regarding the hours he is occupied at the restaurant. The plaintiff said that after he opens the restaurant in the morning, he is present at the premises for about four-and-a-half hours from 8.30am to 2.00pm. He then leaves the restaurant and goes home. He returns at about 5.30pm pm for about two hours.[1]
[1]Transcript 54, and 88-90
30 It was my impression that the restaurant is not very busy in the morning and over lunchtime.[2] It is busy in the evening. It has a comfortable seating capacity of 40, and a maximum capacity of 50 at a squeeze.[3]
[2]Transcript 49-50
[3]Transcript 49-50
31 It was also my impression that the plaintiff has organised the food preparation so that some of it is pre-prepared and some of it is prepared when an order is made by a customer. The pre-prepared food is, for example sauces and gravy. That preparation is undertaken on weekends by the plaintiff and his wife.[4]
[4]Transcript 86-87
32 It was also my impression that when customers come to the restaurant, the plaintiff does some cooking, for example he will cook a main portion of the meal, such as a steak, but one of his sons will do other parts of the preparation, for example whatever else is part of the order. The plaintiff said that he and his son work together in the kitchen undertaking what preparation is needed to meet an order for a meal.[5]
[5]Transcript 85-87
33 It is clear from the medical evidence that the plaintiff has a moderately high level of difficulty with mobility. Mr Hunt considered that the plaintiff was restricted in being able to sit, twist, bend, walk, stand, squat and ascend and descend stairs. That level of restriction has resulted in the plaintiff sitting on a stool in the kitchen of the restaurant, and sitting on a nearby staircase. It was my impression that the need for the stool and the resort to sitting were to gain relief from the pain and restriction of movement which he suffers as a result of the injury to his left knee.[6]
[6]Transcript 54
34 Although the plaintiff’s capacity with English was moderate, there were occasions when he was a little difficult to understand. However, after reading the transcript of his evidence, I am confident that he does go to the restaurant in the morning to open it; is there for about four-and-a-half hours; returns in the evening for about two hours; sits on a stool when he needs to while undertaking cooking and food preparation in the kitchen, and is assisted in food preparation by one of his sons. There is a lot of preparation undertaken on the weekend by the plaintiff and his wife, no doubt in order to minimise extra preparation on a night when the restaurant is open. His major involvement is cooking a main meal, for example a steak, and then leaving other aspects of the preparation to his son, who he assists.
35 The plaintiff's wife is at the front of house, no doubt dealing with customers. His sons and his wife wait tables. They not only do that, but they must also do other food preparation and all of the clearing away because, after a relatively short period of time, the plaintiff leaves the restaurant in the early part of the evening and goes home.
36 I accept the plaintiff’s evidence that he has the level of pain and interference with his mobility he described to Mr Hunt. I am fortified in accepting the plaintiff’s evidence because Mr Hunt, who has treated the plaintiff for a very long time, is in a particularly good position to make an assessment of the condition of the plaintiff’s left knee, and to assess the plaintiff’s level of pain and capacity to be mobile. Additionally, he is in a particularly good position to assess the plaintiff’s capacity to work as a chef and in like occupations.
37 I also accept that the plaintiff works in the restaurant to the extent which he described in his oral evidence. I accept that he is working to an optimum level and is held back in doing more by the nature and extent of the injury to his left knee.
Other occupations
38 Mr Gourlay submitted that the plaintiff worked as a consultant after he left the employ of Purplestone Café Pty Ltd, and showed significant aptitude in doing so, based upon his long experience as a chef and his considerable skill as a chef. He submitted that the plaintiff could now be working as a consultant full-time for at least $30 per hour.
39 Mr Gourlay submitted that the work which the plaintiff is undertaking in his restaurant is significantly less than what he could undertake in the open market as a consultant. He submitted that if I accepted that the plaintiff was working 6.5 hours per week over six days, he has an average working week of 39 hours. At $30 per hour, that is $1,170 per week, and, therefore, the plaintiff must fail when the relevant comparison is made with what he was earning in the permissible period of comparison with what he could be earning now.
The basis of comparison
40 The plaintiff said that he was paid $1,600 net per week by the employer at the time he was injured. I reject that evidence, because the only financial document tendered in evidence was part of a taxation return for the year ending 30 June 2005. It demonstrates that the plaintiff was employed by the employer from 15 November 2004 to 23 May 2005. During that period, he was paid $43,550 gross, and paid $16,883 tax.[7] I accept that the plaintiff’s evidence as to whether the $1,600 was net of tax or gross was a mistake on his part, because the taxation return demonstrates a very different picture.
[7]PCB 122
41 Mr Gourlay cross-examined the plaintiff about his gross earnings. He put to the plaintiff that he was actually paid $1,200 gross per week by the employer. The plaintiff admitted that he was paid that amount for a short time before his gross weekly wage was increased to $1,600. No evidence to the contrary was adduced by the employer.
42 No attack was made upon the calculation of the distribution from the family trust to the plaintiff. In the financial year ending 30 June 2012, he was paid $20,559, and for the financial year ending 30 June 2013, he was paid $18,000. In the absence of any attack suggesting that it is an underpayment from the net profits earned by the restaurant, I accept that it is a true reflection of the income generated by the plaintiff from personal exertion in working in the restaurant.
43 I accept that the plaintiff’s taxation return for the year ending 30 June 2005 is correct. Mr Harrison informed me that when the number of weeks is calculated between 15 November 2004 to 23 May 2005 and divided into the gross, he earned $43,550 or $1,612.96 gross per week or $83,874 gross per annum, and 60 per cent of $83,874 is $50,324.
44 A simple comparison between what the plaintiff is now earning against what he was earning clearly demonstrates that his loss is 40 per cent or more.
Conclusions
45 Firstly, I accept that the plaintiff suffered a major injury to his left knee. I accept that as a consequence of suffering the injury to his left knee, there has been impact upon the plaintiff’s right knee. However, I have not included the injury to the plaintiff’s right knee in my consideration of whether the loss of earning capacity consequences suffered by the plaintiff are serious.
46 Secondly, I accept the plaintiff’s evidence, confirmed by Mr Hunt’s opinion, that the plaintiff has suffered a dramatic and very significant interference with his mobility. I accept that he cannot stand for significant periods of time, which would not permit him to work more extensive hours in a kitchen as a chef. I accept the plaintiff’s evidence that he is probably in an ideal position to be working for himself with the assistance of his family in order to overcome the limitations which the injury to his left knee impose on him.
47 Thirdly, I reject the submission that the plaintiff has a greater capacity to work in the hospitality industry than he is at the moment. I do not accept the fact that he worked as a consultant is a demonstration that he could do so full-time. Furthermore, I think to suggest that he could, and that it is then a matter of simple arithmetic multiplying the number of hours he is present at the restaurant by $30 per hour is a fiction, and does not have an eye for the reality of the dramatic and very significant interference which the plaintiff suffers to his mobility.
48 Fourthly, I accept that the plaintiff did earn the gross income referred to in his taxation returns for the year ending 30 June 2005. I accept that a comparison between that gross income and the gross income he is earning now demonstrates the requisite degree of loss for the plaintiff to succeed in obtaining the leave he seeks.
49 Lastly, Mr Gourlay properly tested the plaintiff’s credit and reliability. Although I had a little difficulty understanding the plaintiff at times, that difficulty did not interfere with my observation of the plaintiff that he appeared to me to be giving a good account of himself. I saw nothing in his evidence to suggest any significant impairment of his credit or reliability.
Orders
50 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for injuries for loss of earning capacity arising out of his employment.
51 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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