Lowe v Federal Express (Australia) Pty Ltd
[2017] VCC 132
•1 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-06144
| BRENDAN GRANT LOWE | Plaintiff |
| v | |
| FEDERAL EXPRESS (AUSTRALIA) PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 December 2016 | |
DATE OF JUDGMENT: | 1 March 2017 | |
CASE MAY BE CITED AS: | Lowe v Federal Express (Australia) Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 132 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the low back – pain and suffering and loss of earning capacity – range case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Jayatilake v Toyota Motor Corp Australia Ltd (2008) 20 VR 605; Richter v Driscoll [2016] VSCA 142; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G K Coldwell | Slater & Gordon Ltd |
| For the Defendants | Ms M Tsikaris | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him in the course of his employment with the first defendant from 2011 but, in particular, during the period of April 2013 and October 2013.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the low back.
6 The plaintiff relied upon two affidavits, which were sworn 18 June 2016 and 23 November 2016. The plaintiff was cross-examined. I have not summarised the affidavits and the further evidence the plaintiff gave, however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all of the tendered material.
The issues
7 Counsel for the defendants informed the Court that this is a “range case”, namely, that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
8 In addition, counsel for the defendants submitted that the plaintiff has a realistic capacity for employment and does not satisfy the statutory requirements for loss of earning capacity. Counsel for the defendants submit that positions have been identified as suitable which accommodate the plaintiff’s limitations and uses his transferable job skills. The defendants’ submission is that the plaintiff’s lost capacity is not greater than 40 per cent, having regard to the gross earnings.
Credit of the Plaintiff
9 From my observation of the plaintiff in Court, he was a man of few words. I formed the impression that if asked a question, he answered it and did not volunteer additional information. In court, he answered questions in a direct and straightforward manner.
10 It was not put to the plaintiff that he exaggerated the consequences; however, counsel for the defendants cross-examined the plaintiff on the histories recorded in the medical reports. For example in a report of Dr Baker, who he saw in December 2013, counsel for the defendants said that Dr Baker recorded that the plaintiff was able to shop, cook, undertake limited cleaning and did what he could. The plaintiff answered, “I guess so. I don’t remember the conversation back then, but I guess I did”.[1]
[1]Transcript (“T”) 23, Lines (“L”) 1-3
11 Another example in cross-examination was when counsel for the defendants asked the plaintiff whether he told Dr MacCallum that his sleep had resolved. He conceded that at the time he saw Dr MacCallum, the sleep was better after taking Lyrica.[2] In re-examination, the plaintiff said his sleep is very poor due to his back pain, which is consistent with his two affidavits.[3]
[2]T45, L27-30
[3]PCB 17, paragraph [34] and PCB 21, paragraph [6]
12 There were a number of other matters relied upon by counsel for the defendants to suggest that the plaintiff was not frank with the Court. For example counsel for the defendants asked the plaintiff the reason he did not disclose travelling to Sumatra and Malaysia in his affidavits.
13 In his first affidavit, the plaintiff said he travelled to Sumatra in March 2013 on a pre-planned period of annual leave. In his second affidavit, he referred to travelling to the Philippines to visit his partner and to New Zealand to attend an engagement party. The following exchange occurred:
Q: “…There is nothing in that paragraph about your trips to Sumatra or Malaysia since you sustaining your injury in March 2013, is there?---
A: No, there’s not.
Q: Can you explain why?
A: Because I wasn’t asked that question at the time. I was asked about my New Zealand trip, which I answered, and then brought up about my partner in the Philippines and that I had travelled frequently to see her. Not frequently, sorry, I travelled to see her, yes.
Q: I will read to you again what you say in your affidavit: ‘My back pain affects my ability to enjoy travel and socialising’?---
A: Yes.
Q: Do you stand by that observation in that statement?---
A: Yes, yes.
Q: Why is it that you do not depose in your affidavit about your trips to Sumatra in March 2013 and September 2013 as well as your trips to Malaysia in June 2016?---
A: I didn’t need it – I didn’t know that I needed to mention every bit of travel in that. It was just I was talking about specific events in that paragraph, not general.”[4]
[4]T24, L21 – T25, L8
14 I take the view that the plaintiff adequately explained his failure to disclose this overseas travel to Malaysia in his affidavits.
15 In addition, the plaintiff was cross-examined about what he told doctors about his surfing and bike riding activities. Counsel for the defendants asked:
Q:“That if you engaged in both of those activities with a lot of regularity, you would have informed Dr Baker of that when you saw him in December 2013?---
A:Well, to be honest, I thought I told most of the doctors if they asked me what I did before – I’m pretty sure most of the doctors have got that in their reports. I mentioned that to most of them when they asked the question, if they asked the question.”[5]
[5]T23, L29 – T24, L4
16 Counsel for the defendants submitted that whilst the plaintiff emphasised his inabilities to undertake swimming, surfing and bike riding activities, he had remained silent on some overseas travel, which would have been onerous to someone with back pain.[6] As such, counsel submitted that this impacted significantly upon the plaintiff’s credit.
[6]T31
17 Ultimately, I take the view that the plaintiff was an honest witness. The plaintiff made concessions, namely, that he surfed on odd occasions but that it was not a regular weekly event.[7] I do not take the view that the plaintiff deliberately omitted his travel to Malaysia from his affidavits. In addition, if medical witnesses did not obtain a history of his outdoor activities, it was more likely than not that they did not ask the relevant question of the plaintiff. I do not accept that the plaintiff intended to be misleading about his restrictions and consequences from his back injury.
[7]T23, L23-26
18 I note that the plaintiff was under video surveillance. The defendants disclosed in their Court book that video surveillance of the plaintiff was brought into existence for the dominant purpose of use in the litigation and in respect of which privilege is not waived. No video surveillance was shown nor was its absence explained. I can infer that the surveillance did not assist the defendants’ case.
Analysis of the evidence
19 Briefly, as to the plaintiff’s education and employment, the plaintiff has an education of Form 4 level at Maribyrnong High School. He commenced work in the army before becoming a station officer at the Department of Transport in the early 1980s. Subsequently, he was a prison officer in the early 1990s.[8]
[8]PCB 10
20 In approximately 1995, he commenced work as an owner driver, delivering clothing to various Melbourne outlets and then as a delivery driver for Poultry Palace. Subsequently, in 2003, he commenced work as an airport shuttle driver. In November 2011, the plaintiff commenced work for the first defendant as a courier, which involved delivery and pick up of freight at various locations around Melbourne.[9] I accept that the plaintiff has mainly undertaken physical employment and, since 1995, has predominantly been employed in a driving or delivery role.
[9]T5-8; PCB 10
21 I note that Dr Sutcliffe recorded the plaintiff as having obtained a TESOL (Teaching English to Speakers of Other Languages) degree.[10] As to this qualification, Mr Hartley said that the plaintiff told him that he could not recall the date of attainment, trainer, nor had he used this qualification professionally.[11] Counsel for the defendants submitted to the Court that there was no evidence that the plaintiff had undertaken any training to teach English and that Dr Sutcliffe had been in error.[12] The plaintiff was not cross-examined on this issue. Accordingly, on the state of the evidence, I am not prepared to consider this issue further.
[10]PCB 62
[11]PCB 87
[12]T80
22 The evidence was that the plaintiff injured himself at work with the first defendant on or about 7 March 2013. In late March 2013, he was certified for modified duties with restrictions on heavy lifting, bending and the use of stairs. The plaintiff said that his back continued to deteriorate and he ceased work in October 2013.
23 In February 2014, he attempted to return to work on light duties and restricted hours. The plaintiff said that he was told by the first defendant that they could no longer accommodate his restrictions in April 2014. Since those duties were revoked by the first defendant, the plaintiff has not worked in any capacity.
24 Counsel for the plaintiff told the Court that the plaintiff had applied for two part-time light jobs in early 2016 but was unsuccessful.[13]
[13]T11
25 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course of, his employment with the first defendant, to his lower back. The majority of the medical witnesses accepted the injury was work related.[14] This is in the context where the plaintiff has an accepted claim for compensation. The minority view was expressed by Mr Simm. He said a component of the plaintiff’s pain would be arising from an aggravation of degenerative changes. He also said the plaintiff had developed a chronic spinal pain syndrome, which related to non-organic or psychological factors in the context of a work injury.
[14]Dr Wilkinson, general practitioner, PCB 47-49; Mr Dooley, orthopaedic surgeon, PCB 51-52; Dr Sutcliffe, occupational physician, PCB 68-69; Mr O’Brien, orthopaedic surgeon, PCB 76; Dr Baker, occupational physician, DCB 64; Associate Professor Buzzard, DCB 36, 46, 56 and 58; Dr Fish, occupational physician, DCB 30; Mr Simm, orthopaedic surgeon, DCB 9
26 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s134AB(37)), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically based.[15] The evidence of Dr Strauss, psychiatrist, is that the plaintiff does not have any psychiatric diagnosable or recognisable condition.
[15]See Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
27 I rely on what Ashley JA said in Jayatilake v Toyota Motor Corp Australia Ltd[16] at paragraphs 18 and 19:
“Section 134AB(38)(h) says nothing to suggest that the general approach is to be abandoned in favour of trial by medical opinion. Simply, a plaintiff is required to establish, in order to satisfy the presently pertinent aspect of the definition of ‘serious injury’, that he or she suffers an impairment or loss of function the consequences of which, physically based, are serious in terms of pain and suffering or loss of earning capacity. Like any other question for determination, it is a question to be resolved by consideration of all the evidence before the court. Stamboulakis should not be understood to mean that, upon the serious injury question, the principle that an issue is to be determined by reference to all admissible and relevant evidence is inapplicable.
If a question arises whether, because there is said to be a psychological aspect (say) of pain and suffering, the plaintiff has made out the necessary proof, that question might, as a matter of theory, be resolved by identification of the ‘quantum’ of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”
[16](2008) 20 VR 605
28 Accordingly, I accept the plaintiff has suffered a physical injury.
29 The Court must examine the consequences of the physical impairment in the separate context of:
(a) pain and suffering; and
(b) loss of earning capacity.
30 The test is whether the plaintiff is suffering from a compensable injury and whether the consequences meet the very considerable test or are subject to the statutory test.
31 If the plaintiff satisfies the test laid down by the Act for loss of earning capacity, then he is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[17]
[17]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
32 Accordingly, it is appropriate to look, first, at the various tests for loss of earning capacity, which must be satisfied by the plaintiff in respect to the low-back injury.
Loss of earning capacity
The narrative test
33 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time. Accordingly, I will be influenced by the more recent medical opinions of Dr Wilkinson, Dr Sutcliffe, Mr O’Brien, Dr Fish, Mr Simm and Associate Professor Buzzard. All medical witnesses that expressed an opinion on the plaintiff’s employment accepted that the plaintiff could not continue in pre-injury employment because of his low-back injury. Mr Simm did not address the plaintiff’s employment.
34 All medical witnesses who expressed an opinion on employment accept that the plaintiff has no capacity for pre-injury work. Dr Wilkinson, Mr O’ Brien and Dr Sutcliffe accepted that the plaintiff is unlikely to return to work for the foreseeable future.
35 Dr Wilkinson, the plaintiff’s general practitioner, described the plaintiff’s low back injury as chronic pain with a prognosis for improvement being poor and it is unlikely that he will be able to return to work for the foreseeable future.
36 In his report dated 19 September 2016, Mr O’Brien concluded that the plaintiff presented as physically incapable of undertaking his pre-injury occupation. He noted that the plaintiff failed to be able to pursue modified duties and said it would now appear that the plaintiff is unable to undertake suitable employment. He noted that the plaintiff was in receipt of a Disability Support Pension. He said it was extremely unlikely that the plaintiff will ever return to any form of gainful employment.[18]
[18]PCB 77
37 From her assessment of the plaintiff in October 2015, Dr Sutcliffe, occupational physician, imposed restrictions on the plaintiff’s employment, which would continue into the future. She said that he had no capacity to undertake employment or activities involving the following:
· Bending, lifting, twisting or stooping
· Pushing, pulling or lifting
· Repetitive pushing, pulling or lifting; and
· Prolonged sitting, walking or standing.[19]
[19]PCB 70
38 Dr Sutcliffe said if the plaintiff were retrained, he would need to obtain work which enables him to sit and stand and vary his posture, and he would be limited to part-time employment of 9 to 12 hours per week. She said the plaintiff had no capacity to undertake suitable employment, taking into account his incapacity, age, education, place of residence, skill and work experience, and this will continue into the foreseeable future.[20] She felt his prognosis was poor.
[20]PCB 71
39 Associate Professor Buzzard said that as far as his employment capacity was concerned, the plaintiff had a “light work back”.[21] I assume from this statement that he considered the plaintiff could perform suitable light work, given his back injury.
[21]DCB 39
40 In April 2014, Mr Dooley said the plaintiff had a current capacity for light work; that is, light physical work and light duties.[22] I accept that was in 2014 and at a time when the plaintiff was performing clerical duties for the first defendant, which were three hours per day, three days per week. He expected the plaintiff to suffer intermittent low-back and lower-lumbar pain but did not expect his orthopaedic condition to deteriorate. Mr Dooley was of the view that it was likely that the plaintiff’s condition had stabilised.
[22]PCB 52
41 In November 2015, Dr Fish thought the plaintiff had a capacity for part-time hours, up to 20 hours per week working either five hours per day, four days per week or four hours per day, five days per week. He said the areas needing exploration for further employment would include some use of his photography knowledge and skills or some use of his tourism knowledge and skills. I note that Dr Fish was unaware of the fact that the plaintiff’s training in photography was undertaken in 1991-1992, prior to the era of digital photography, and that the plaintiff’s degree in tourism and travel management was from Knightsbridge University, which was through a fake organisation and meant the plaintiff could not use his uncredited degree professionally.
42 In his assessment in 2016, Mr Paul Hartley, a vocational assessor, considered the jobs put forward by WorkAble Consulting in 2014 and 2015 and concluded they were not suitable. Mr Hartley was unable to put forward any employment options that the plaintiff would be able to undertake. He noted that the plaintiff had basic but less than average computer skills, no skills or ability to use a point of sale system, a worthless degree from Knightsbridge University and outdated photography skills. In considering the plaintiff’s transferable skills, Mr Hartley said that while the plaintiff had some transferable skills, he did not believe his base is such that he would be a competitive or viable employment candidate for alternative forms of possibly physically suitable employment.
43 Significantly, Mr Hartley said:
“A man who has spent most of his working life as a truck driver, bus driver and delivery driver and who now cannot meet the physical demands of those types of roles or sit long enough to undertake the prolonged driving required of such roles, Mr. Lowe has limited transferrable skills in my opinion”.[23]
[23]PCB 90
44 In February 2016, Dr Fish was provided with a suitable employment report from Recovre dated February 2016. The Recovre report identified three actual job roles, which were as follows:
· First, a lab/sales assistant in a retail photography store based in Maribyrnong;
· Second, despatch clerk with a packaging recycling business based in Derrimut; and
· Third, a customer service/hire officer in an equipment hire business based in North Geelong.[24]
[24]DCB 69
45 Dr Fish considered the first position of lab/sales assistant in a camera and video store would be suitable. He said the described duties and photographs indicate that the plaintiff is fully capable of carrying out the duties of that position. He thought that within a short period of time of commencing the duties, the plaintiff would be able to perform the duties on a full-time basis.[25] This was despite the fact that he said the plaintiff could work 20 hours per week in November 2015.
[25]DCB 18
46 As to the second position of despatch clerk, Dr Fish felt the described duties and photographs were within the capabilities of the plaintiff. However, he recommended a sit/stand desk and considered that often this role requires physical aspects. Consequently, there would need to be some selection as to what positions of despatch clerk were suitable and available.
47 In regards to the third position of customer service officer, Dr Fish said that the plaintiff was capable of performing the described position. However, he noted that not all such positions perform the duties as described, as there may be a requirement that a rental/customer service officer demonstrate equipment.
48 Ultimately, Dr Fish found that the plaintiff was capable of performing the three jobs but had concern that the positions of despatch clerk and/or a rental/customer service officer with an equipment and plant hire business do not fully accommodate the needs for careful assessment, as they are not always as described.[26]
[26]DCB 19
49 In cross-examination, the plaintiff described having used his computer to design itineraries, attend travel expos, liaise with travel agents and complete assignments to be graded by Knightsbridge University as part of his degree. He used a standing desk at home. The plaintiff agreed that a standing work station could be replicated in an employment setting dependant on the employer, which would allow him to vary his posture as required.[27]
[27]T37
50 In re-examination, the plaintiff said he had never worked as a sales assistant, in a retail photography store nor in a photography lab.[28] Further, he did not have skills in lab processing for photography and no experience in operating machines to develop photographs at retail stores.[29] Whilst he had undertaken photography study, that was prior to digital cameras being introduced.[30] He has a consumer’s familiarity with a digital camera and that photography was a hobby from twenty-five years ago. He was not familiar with the setup of a camera shop, because he had not been to one in about twenty years. The plaintiff told the Court that he was a one-touch typist and had no knowledge of Acumen, Photoshop, HP Photo or other photography industry programs. The job also requires sound computer skills. The plaintiff‘s computer skills were described by Mr Hartley as basic.
[28]T53
[29]T53
[30]T35-36
51 I accept that the physical requirements of the lab/sales assistant would exclude the plaintiff, namely reaching high shelves, bending and climbing ladders. There was nothing in the material to suggest that the employer has a flexible workstation. Further, the plaintiff’s photography skills are outdated and his computer skills basic. He would be unsuitable for the position.
52 Pursuant to ss(38)(g) of the Act, I am also required to consider issues of retraining and rehabilitation.
53 In relation to rehabilitation, the plaintiff has undertaken pain management with Dr McCallum. He has applied for jobs. In 2005, the plaintiff applied for a sales representative job with the first defendant and was unsuccessful.
54 In early 2016, the plaintiff applied for two part-time jobs that he thought he might have a physical capacity to perform based on the job description. In cross-examination, the plaintiff said that these jobs were front desk office administration positions at Quest Apartments and at a retirement village for over 55s.[31] He agreed that he would not have applied for the positions if he did not think he could give it a go. At that stage, he contacted Work Able Consulting because he thought he might need assistance. He was told that Work Able Consulting could no longer assist him.
[31]T33-34
55 The plaintiff told the Court that he had not attempted any retraining between ceasing clerical work duties with the first defendant and now.[32]
[32]T48
56 Counsel for the defendants queried whether the plaintiff would undertake retraining for employment as follows:
Q:“If there is training in a new job, Mr Lowe, you would be able to undertake that if it didn’t involve lifting heavy equipment; correct?---
A:Well, there is – there is another side to the issue and that’s my medication.”[33]
[33]T43, L20-23
57 As to future re-training, the plaintiff agreed with counsel for the defendants that he had an ability to do paperwork[34] and process delivery and receipt documents[35] if he was trained in those areas. However, whilst he had a willingness to participate in re-training, he acknowledged that his one touch-type computer skills were lacking, which would make him unsuitable for a clerical role.[36]
[34]T50
[35]T51-52
[36]T52
58 Counsel for the plaintiff said that the best counsel for the defendants could argue was that the plaintiff had a “theoretical capacity” for work tasks.[37]
[37]T123, L26-27
59 In Richter v Driscoll,[38] the Court of Appeal, at paragraph 76, said that return to work in employment requires more than a physical capacity to engage in a task or tasks. The Court said:
“Second, we agree with the applicant’s submission that the word ‘employment’ carries with it the idea, as King CJ put it in Philmac, of return to work ‘as a settled or established member of the wage earning workforce’. In Philmac, the legislation simply referred to return to work. Even so, King CJ in substance found within that concept an implication of return to work in employment (which is expressly stated in the definition now under consideration); and return to employment in what might be described as a meaningful way, so as to obliterate a continuing need for weekly payments of compensation.”[39]
[38][2016] VSCA 142
[39]At paragraph [75]
60 I accept the submission of counsel for the plaintiff that the Court of Appeal in Richter stated that it was necessary to look further than the medical restrictions or the job tasks usually put forward by the doctors and consider each of the elements of suitable employment.[40] The first is the nature of the worker’s incapacity and the details provided in medical information, including, but not limited to, the certificate of capacity supplied by the worker. It was accepted by the medical evidence that the plaintiff cannot perform his pre-injury employment and he has substantially reduced physical tolerances which include sitting, driving, manual handling and going up and down stairs. The plaintiff gave evidence that the pain can be severe and unpredictable. It disrupts his sleep and causes him to be tired and irritable the following day. He has analgesic use that is constant, so far as he takes it before bed, but during the day, he takes analgesics when he does not have something to do.
[40]T112
61 The second element of suitable employment is age, education, skills and work experience. In this case, the plaintiff is aged fifty-five with a Form 4 level of education. He has a photography qualification obtained in the early 1990s, which predates pre-digital cameras, and the evidence of Mr Hartley is that the qualification is worthless in the digital age. The tourism qualification is from a university which does not physically exist, was owned by a Pakistani corporation and the qualification is regarded by vocational witnesses as worthless. The plaintiff’s experience for the past twenty-five years has focused on driving and manual handling. The prison office work is historical and long ago. The other elements of suitable employment include the worker’s place of residence, which, in this case, is Werribee. The plaintiff has applied for employment close to Werribee. The bulk of the medical material suggests the plaintiff would benefit from being able to work part time; however, the plaintiff encounters difficulty travelling and he is only suitable for light duties. He has an anxiety about letting employers down. These are all relevant considerations.
62 I accept counsel for the plaintiff’s submission that the plaintiff has a theoretical capacity for work tasks at best, which ranges between full time and 20 hours. Further, I accept that in a real and practical sense, there is no-one who would employ him.
63 In view of the evidence as a whole, I accept the plaintiff has no capacity for pre-injury or suitable employment. It is not necessary for me to enter into an analysis of wage rates.
64 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[41]
[41]Advanced Wire & Cable Pty Ltd & Anor v Abdulle (supra)
65 Given the foregoing medical evidence, I am satisfied the plaintiff cannot return to work. The plaintiff is aged fifty-five years. He has been out of the workforce for four years. The plaintiff reported to his general practitioner his desire to return to the workforce. The plaintiff has performed physical work. He has been in constant physical employment. I accept that he was proud of his work history.
66 I accept that the plaintiff’s inability to return to work and to provide for his new family represents a significant loss to this plaintiff, given his work history. Given the length of time the injury has persisted and the medical evidence as to permanency, I am satisfied that the plaintiff’s impairment is permanent.
67 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as “serious” as defined within the Act, when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments.[42]
[42]Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181 at paragraph [41]
68 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity. Given the medical evidence of Dr Wilkinson, Mr O’Brien and Dr Sutcliffe that the plaintiff has no capacity for work currently or into the foreseeable future as a result of his physical condition, I find the plaintiff is effectively out of the workforce for any employment. I have also taken into account the evidence of Mr Hartley. Accordingly, there is no need to go into the analysis of wage rates as I do not accept he has any residual capacity given the medical evidence.
69 I accept that the plaintiff has complied with the requirements of paragraph (g) of s134AB(38) of the Act. Accordingly, I am satisfied the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
70 In view of the matters I have described, the plaintiff has discharged the onus with respect to his physical condition regarding his loss of earning capacity.
71 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
72 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injury suffered over the course of his employment with the first defendant after 20 October 1999.
73 I will hear the parties on costs.
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