MacDonald v Victoria Carpet Company Pty Ltd (trading as Victoria Carpets)
[2017] VCC 1487
•19 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01148
| ROBERT STEWART MACDONALD | Plaintiff |
| v | |
| THE VICTORIA CARPET COMPANY PTY LTD (trading as VICTORIA CARPETS) | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2017 | |
DATE OF JUDGMENT: | 19 October 2017 | |
CASE MAY BE CITED AS: | MacDonald v Victoria Carpet Company Pty Ltd (trading as Victoria Carpets) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1487 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Meadows v Lichmore [2013] VSCA 201; Richter v Driscoll [2016] VSCA 142; Abdulle v Advanced Wire & Cable Pty Ltd [2008] VCC 1344
Judgment:Leave granted to bring proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Middleton QC with Mr A Hill | Slater and Gordon |
| For the Defendant | Mr D Masel SC with Ms S De Guio | Minter Ellison |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff to his lumbar spine in the course of his employment with the defendant from approximately March 2003 to approximately February 2015 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
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. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff relied upon two affidavits, sworn 1 August 2016 and 11 September 2017,[1] and gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
[1]Exhibit A
Outline of Section 134AB
6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function.
10 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
11 Sub-sections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
12 Sub-section (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
13 Sub-section (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] in reaching my conclusions.
[2](2005) 14 VR 622
15 The defendant concedes the plaintiff had suffered an injury in the course of his employment between the dates concerned, but does not concede that such injury meets the requirements of ss38(e), (f) and (g) referred to above with respect to loss of earning capacity. Without explicitly conceding the point, the defendant does not proffer any submission as to why the plaintiff has not established consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairment, may be fairly described at the date of hearing as being “more than significant or marked” and as being “at least very considerable”.
Compensable physical injury
16 It is common ground that a compensable injury occurred in the course of the plaintiff’s employment between the dates alleged, due to the heavy nature of the work that he was performing during that period.
17 It is also conceded that when the plaintiff was put off work on 19 February 2015, he was thereafter permanently incapacitated for his pre-injury work due to compensable injury.
The issues
18 The defendant disputes that the threshold has been met with respect to economic loss. In particular, senior defence counsel relies on the plaintiff’s admissions under cross-examination to the effect that he would be able to apply the skills and attributes set out in his curriculum vitae recently prepared as an aid in seeking alternative work due to his injury.[3]
[3]Exhibit 7, Defendant’s Court Book (“DCB”) 148
19 Counsel also relies on the assessment by Nabenet as to the plaintiff’s demonstrable transferable skills as at 14 October 2015.[4]
[4]Exhibit 5
20 In addition, defence counsel relies on the Vocational Assessment and Labour Market Analysis Reports dated 9 March 2017 and 11 September 2017, which set out a number of alternative occupations which would constitute suitable work in terms of the plaintiff’s transferable skills.[5]
[5]Exhibit 7
Compensable injury
21 An MRI scan of the lumbar spine dated 8 April 2014 revealed the following:
“L4/5
Desiccated disc. Broadbased disc protrusion effacing the anterior thecal sac without neural impingement. Mild foraminal stenosis, non-neural compressive.
L5/S1
Normal broadbased disc protrusion effacing the anterior thecal sac. Right posterolateral annular fissure with subtle right paracentral disc protrusion with probable mild contact of the descending right S1 nerve root. Mild facet degeneration.
Comment
Spinal broadbased disc protrusion L5/S1 with small posterolateral annular fissure and subtle small paracentral disc protrusion with probable contact of the descending right S1 nerve root.
Mild L5/S1 facet degeneration.”[6]
[6]Exhibit B, Plaintiff’s Court Book (“PCB”) 22
22 Further, a CT scan of the lumbosacral spine dated 11 February 2015 revealed:
“L4/5: There is a broadbased posterior disc bulge which appears to be slightly more prominent to the left at midline. There is no evidence of central canal stenosis nor of neural exit canal stenosis. The facet joints appear normal.
…
Conclusion
Broadbased posterior disc bulging of the L4/5 disc, which appears to be slightly more prominent to the left of midline.”[7]
[7]Exhibit B, PCB 23
23 It is common ground that the degenerative changes, as revealed above, have been aggravated by the work described by the plaintiff in his employment, such that they have been rendered symptomatic and, as a consequence, he has been rendered permanently unable to return to his pre-injury work.
24 Mr Michael Troy, orthopaedic surgeon, on behalf of the defendant, in his report dated 23 January 2015, opined that the plaintiff had a degenerative prolapsed disc at L5-S1, which gave him intermittent symptoms in his legs. He considered the injury had been caused by the physical nature of the plaintiff’s work back in April 2010, and also an aggravation in March 2014. He considered the plaintiff to not be fit for pre-injury duties of unrestricted lifting and bending, and he was not fit for pre-injury duties and hours. However, he also considered that the current condition as at January 2015 continued to result from the degenerative changes in the back, but that he had recovered from his aggravation in March 2014. He further stated the symptoms persisted as he has progressive degenerative change in the disc at L5-S1, and hence that caused him his symptoms and restriction of activities.[8]
[8]Exhibit 2, DCB 27-28
25 Suffice to say that Mr Troy is on his own in this opinion and is at variance with the other defendant’s and plaintiff’s medical practitioners. In any event, Mr Troy opines:
“I do not believe he will be able to return fully to his pre-injury work of unrestricted lifting and bending while ever he continues to have symptoms and that is likely to occur indefinitely considering that he has had a degenerative disc in his back since 2010 and that is still progressive.”[9]
[9]Exhibit 2, DCB 27
Suitable employment
26 It is submitted by Senior Counsel for the defendant that the plaintiff is “properly identified by Dr Brazenor, by Ms Bryant, and by Dr Slesenger, motivated, resourceful, able to learn new skills”,[10] and, as such, does not satisfy the threshold with respect to loss of earning capacity set out above. Although not having specific instructions to concede a pain and suffering certificate, Senior Counsel stated:
“… I won’t be putting any positive submission that he doesn’t satisfy the pain and suffering consequences. … .”[11]
[10]Transcript (“T”) 16, Lines (“L”) 11-15
[11]T16, L17-18
27 In my view, this was a fair and proper submission to make.
28 Dr Graeme Brazenor, neurosurgeon, reported to the defendant on 11 July 2017.[12] He took a relevant history and noted at that time, the plaintiff had been seeing a physiotherapist “second weekly” since June 2015, and that the physiotherapist had recently been doing manipulations.[13]
[12]Exhibit 4
[13]Exhibit 4, DCB 55
29 Further, he took a history that at night he ─
“… wakes after two or three hours with low back ache, an ache in the posterolateral aspect of the right buttock and thigh, occasionally extending down to the second and third toes on the right foot.”[14]
[14]Exhibit 4, DCB 56
30 He further took a history that ─
“His medications at present are Nurofen Plus and he says he gets through a packet of 30 of these every couple of weeks. He also takes Nexium for his stomach. He said he stopped Panadeine Forte because of side effects. He said he is about to start an antidepressant medication because of anxiety and panic attacks. On close questioning it became apparent that these symptoms are allegedly in relation to the management of his Workers’ Compensation claim.”[15]
[15]Exhibit 4, DCB 56
31 Dr Brazenor’s conclusion was that the plaintiff ─
“… repetitively injured the two lowest discs in his lumbar spine over the period between March 2003 and the end of February 2014. The radiological record is concordant with Dr Demaio’s records [the general practitioner] and with Mr MacDonald’s affidavit.”[16]
[16]Exhibit 4, DCB 58
32 Further, Dr Brazenor opined:
“As a result of these work-related injuries (which in no way owe anything to pre-existing degenerative disease) Mr MacDonald has been left permanently unable to indulge in bending at the waist or accessing levels less than 600mm above floor or ground, or vigorous pushing or pulling movements as in the shifting of machinery or furniture, or the manoeuvring of heavily laden trolleys. These restrictions apply both at home and in any employment that he secures, and insofar as he has done physical jobs for the whole of his working life, he is now in a dilemma about what jobs he could possibly re-train for. … .”[17]
[17]Exhibit 4, DCB 58
33 As to his prognosis, Dr Brazenor opined that if the plaintiff followed a three-step procedure of self-management, he will ─
“… complete the healing of both the L4-5 and L5-S1 discs. … Nevertheless, full healing of the two injured lumbar discs will not restore to Mr MacDonald the ability to return to activities or employment requiring bending at the waist.”[18]
[18]Exhibit 4, DCB 59
34 As to whether the plaintiff would be able to engage in any of the five suggested employment options contained in the vocational assessment and labour market analysis report by CoWork, dated 9 March 2017,[19] Dr Brazenor replied:
“I believe that Mr MacDonald could address any of the five suggested employment options (mobile speed camera operator, trade counter sales assistant, electronic assembler or spare parts interpreter). I do not believe that road traffic controller would be suitable, insofar as these workers often have to manually drag barriers and signs from place to place. In addition, the electronic assembler role might not be possible at the present time insofar as Mr MacDonald’s sitting tolerance is limited.
Nevertheless this man is intelligent, and I believe with re-training could prepare himself for and execute far more challenging and rewarding occupations than those listed.
Before he begins to actually full time he will need to regain his walking stamina and learn to follow the three Rules. I also recommend that he discontinue physiotherapy and attendance on an exercise physiologist.
Once he has gently escalated his walking up to 30 minutes three times daily and has learnt the three Rules, he will be fit to begin re-training for a non-bending, non‑lifting job which he can be expected to attend full time until normal retiring age.”[20]
[19]Exhibit 7
[20]Exhibit 4, DCB 61
35 Dr Joseph Slesenger, specialist occupational physician, provided three reports to the defendant dated 20 March 2016, 4 August 2017 and 7 September 2017.[21] In his first report, Dr Slesenger opined that the plaintiff did have a capacity for work with the following restrictions:
·No push/pull/carry/lift over 5 kilograms
·No repetitive bending or twisting
·No working in restricted spaces
·Four hours a day, four days per week.[22]
[21]Exhibit 3
[22]Exhibit 3, DCB 37
36 In addition, Dr Slesenger was of the opinion that the plaintiff could return to work as a spare parts interpreter, a despatch clerk, and a product quality controller with the restrictions identified above.[23]
[23]Exhibit 3, DCB 37
37 Further, Dr Slesenger considered the plaintiff had a capacity to engage in retraining and occupational rehabilitation services, as identified in the Nabenet – Transferable Skills Analysis dated 14 October 2015.[24]
[24]Exhibit 5
38 In his second report dated 4 August 2017, Dr Slesenger took a history that the plaintiff was continuing to see his general practitioner for certification and medication purposes. He was also attending a physiotherapist once weekly, which consisted of massage, stretching and exercises. There had also been some wide lifting associated with these tasks. He had also been attending an exercise physiologist on a once-a-week basis to assist his transition to a self-managed exercise program.
39 He was taking medication consisting of Nexium, Panadeine Forte at night once or twice a week, and Nurofen once daily. He further reported no change in his symptoms since the last examination, and continued to complain of severe lower back pain with right radicular symptoms. He stated that the pain varied between a moderate to severe level and was aggravated by activity, particularly sitting for more than 20 to 30 minutes, standing for more than 20 to 30 minutes, and driving for more than 30 minutes. Further, the plaintiff reported a diminution in use of Panadeine Forte, but had his dose of Nurofen increased.
40 Further, the plaintiff reported that he continued to avoid domestic tasks, though he could perform some light shopping, light cleaning and light laundry duties. He avoided vacuuming, mopping and cleaning the toilet and bathroom.[25]
[25]Exhibit 5, DCB 44
41 Further, he had been attending a number of training appointments and had attended three days of computer training, but advised that the courses were of limited benefit.[26] However, he described himself as being competent using a computer and believed that he could work out most computer problems.[27]
[26]Exhibit 5, DCB 45
[27]Exhibit 5, DCB 45
42 With respect to residual capacity for work, Dr Slesenger repeated the identical restrictions referred to above and particularly citing four hours a day, four days per week.[28]
[28]Exhibit 5, DCB 48
43 It would appear that Dr Slesenger was not agreeable to the occupations consisting of mobile speed camera operator or trade counter sales assistant, but that he may possibly be able to perform the duties of a mobile vehicle parts interpreter. There was also the possibility of a product assembler in electronics, but he was not agreeable to a road traffic controller.[29]
[29]Exhibit 5, DCB 48
44 With regard to his future employment, Dr Slesenger stated:
“I anticipate a gradual improvement in his hours of work. I anticipate that he will be able to gradually increase his hours, though I am uncertain that he could work full hours given the persistence of his symptoms, and at this stage, I anticipate an improvement in his hours up to 6 hours a day, 5 days a week, with a 5-minute rest break per hour to mobilise.”[30]
[30]Exhibit 5, DCB 49
45 In his third report, Dr Slesenger was provided with further up-to-date reports from other practitioners, but essentially did not change his opinion previously expressed.[31]
[31]Exhibit 5, DCB 49e
46 It was not contended by the defendant that the reports of Mr David Barton, occupational physician, in 2014 took the matter any further.
47 Ms Joanne Bryant, occupational therapist, has provided a report entitled: “Vocational Assessment and Labour Market Analysis Report” dated 9 March 2017, and a supplementary report dated 11 September 2017.[32] The essence of her recommendations is as follows:
[32]Exhibit 7
“With a residual physical capacity that can be best described as a ‘light back’, I formed the view that Mr MacDonald is employable and recommended the following as alternative occupations for him to consider:
1.Mobile Speed Camera Operator (transitional occupation)
2.Trade Counter Sales Assistant
3.Light Electronics Product Assembler
4.Spare Parts Interpreter
5.Road Traffic Controller.”[33]
[33]Exhibit 5, DCB 164
48 The plaintiff has tendered a 24-page report from Dr David Middleton, occupational physician. Suffice to say, he disagrees with the opinions proffered by the defendant’s practitioners and consultants as to the plaintiff’s ability to perform alternative employment. He considers that ─
“… as a consequence of those functional limitations, he could not presently perform even light work on a part-time basis. Mr MacDonald is permanently incapacitated for any type of employment that has a significant physical/manual component.
In theory, he does have some capacity to perform sedentary work; however, taking into consideration his incapacity, age, education, place of residence, skills and work experience, lack of effective vocational re‑education and inadequate occupational rehabilitation services, Mr MacDonald’s capacity to procure and maintain such employment would be negligible. It is my opinion that Mr MacDonald has no current work capacity as defined under The Act.”[34]
[34]Exhibit J, PCB 72
49 If some suitable employer could be found, Dr Middleton considered that there would have to be a graduated return to work plan ─
“… commencing on 2-3 hours on any one day, 2-3 non-consecutive days per week. These hours would need to be monitored and modified in accordance with ensuring symptoms and pain remains manageable and does not impinge on Mr McDonald’s non-work time.”[35]
[35]Exhibit J, PCB 71
Analysis
50 The plaintiff was cross-examined extensively and fairly by Senior Counsel for the defendant. I accept counsel’s submission that although the qualities set out in his curriculum vitae were professionally prepared and cast him in “the best light”, I consider that the plaintiff does have a number of transferable skills, as opined by the defendant’s practitioners set out above.
51 I also accept both counsel’s submissions that the plaintiff is a well-motivated and truthful witness. It appears to me that he has co-operated with every rehabilitation service provided to him thus far, and in this regard, he has satisfied the provisions of s134AB(38)(g) of the Act.
52 Insofar as he has suffered a reactive psychological condition to his injuries, it would appear that this reaction has not interfered with his employability, except perhaps on a temporary basis. The evidence would suggest that the anxiety and depression is tied up with the litigation process, which will be ameliorated, if not brought to an end, at the conclusion of these proceedings. It is clear enough that all the medical practitioners on both sides have assessed the plaintiff in this regard as suffering from an organic injury which has been caused by his employment either by way of production or of aggravation of degenerative change, and that the continuing impediment would preclude him from working in his pre-injury employment or in a physically demanding position. It would appear to me that this was reasonably accepted by Senior Counsel for the defendant in his opening.[36] I accept Senior Counsel for the plaintiff’s submission that, accordingly, the well-known principles of Meadows v Lichmore[37] would apply in the plaintiff’s favour.
[36]T14, L30 – T15, L4
[37][2013] VSCA 201
53 In terms of the plaintiff’s accepted honesty and motivation, I note the contents of his affidavits as follows:
“17. I returned to work in late January 2015 working 5.5 hours x 4 days, having the Wednesdays off to give me a mid-week break. In early February 2015 I tried to increase my hours but my pain levels increased. I had a CT scan on 9 February 2015 which I believe showed a broad based disc bulge at the L4/5 level, slightly more prominent on the left. I increased to 7.5 hours x 4 days but I was struggling with the pain. I was put off work on 19 February 2015. I continued regular physiotherapy with Ross Edwards. I was walking regularly, up to 2 to 3 hours per day. I was taking Panadeine Forte, Nurofen Plus and Nexium to avoid reflux and indigestion type symptoms.
18. My employment with Victoria Carpets was terminated on 24 June 2015 on the basis that I was unable to carry out the inherent requirements of my pre-injury position and that there were no other suitable positions available.”[38]
[38]Exhibit A, PCB 19
54 Further, the plaintiff swore:
“21. I have been looking for work, with the assistance of Nabenet. I am registered with seek.com, Job Search Australia and Indeed. I have applied for several jobs. I continue to have flare ups of low back pain either due to trying to do too much or sometimes for no apparent reason. Dr Demaio has certified me fit for work but with no repeated lifting, pushing, pulling or bending, no lifting above 5 kilograms, taking regular rest breaks and having the opportunity to change posture on preferably self-paced light duties up to 4 hours x 4 days per week. Having had only one job for the vast majority of my working life, and having those restrictions was making it very difficult for me to obtain employment. I have done some retraining through Nabenet including a MS Excel Level 1 course over one day, a MS Excel Level 2 course also over one day, and I am hoping to do a Word course. My computer skills are generally limited.
22. I continue to suffer from low back pain varying from mild to severe. At times my back is stiff. I have intermittent pain going down my right leg, again varying from mild to severe. My pain seems to be worse in the early hours of the morning, which disturbs my sleep, or whilst driving or sitting for too long. Any awkward or sudden movements or increased physical activity can easily aggravate my pain.
23. I continue to attend my physiotherapist on a weekly basis. I do home exercises and walk as much as I can. I am taking Panadeine Forte and Nurofen Plus as required. I take Nexium on a daily basis.
…
25. Sleep disturbance due to my back pain means that I am quite fatigued during the day. I feel stressed, nervous and agitated most of the time. I am very concerned about my future. The loss of my job has been very stressful for me. I was capable of earning in the vicinity of $70,000 gross per annum. I am now restricted to reduced hours light duties in potential jobs that I have never done before.”[39]
[39]PCB 19, 20 and 21
55 These assertions were not attacked in cross-examination, probably for good forensic reasons.
56 In his second affidavit sworn 11 September 2017, the plaintiff swore:
“2. I continue to have pain in my back every day. The pain starts from my lower back and goes down my right leg. The pain is variable but at its worst can go down to the toes in my right foot. I also get a sharp stabling pain from time to time in the left side of my back if I do something like twist or move awkwardly. This causes my back to stiffen up immediately and I can spend a few days lying down. My back is very stiff in the mornings and I have a long hot shower to try and free it up a bit.
…
4. My doctors have told me that my only options are surgery or just keep taking medication, go to physiotherapy and try to keep exercising where I can. Mr Craig Timms is my treating Neurosurgeon. He previously recommended that I have surgery on my back. Mr Timms requested funding to undertake the surgery but this was denied. I am reluctant to have back surgery because it is not guaranteed to help with my pain and I have been told that there are many risks involved. I want to try and avoid surgery for as long as I can but will consider it again if my symptoms deteriorate.
…
6. I also currently take one Nexium 20mg tablet per day because I developed stomach problems from taking other medication to treat my back. I was taking Mobic, Voltaren and Panadiene Forte and this caused constipation and serious heartburn. My doctors have told me these symptoms were likely because of the taking Panadeine Forte and other medication. I now try not to take Panadeine Forte and just rely on over the counter medication like Panafen Plus or Nurofen Plus for the pain. I take between 15 to 20 tablets a week on average of Panafen Plus or Nurofen Plus.
…
8. I continue to see my physiotherapist, Mr Paul Kemel, once a fortnight. I see him to help with my pain and to try to keep the range of movement in my back.
…
16. My sleep has been badly affected by pain in my back and particularly my right leg. I cannot sleep for more than about four hours per night. During the night I wake up because of the pain in my right leg. When this happens I have to take Panafen Plus for pain to try to [relax] before I can go back to sleep. As a result of sleep problems, I often feel very tired during the day and lack energy.
17. I have put on about 10 kilograms in weight since suffering my back injury. This is partly because I am no longer as active with walking, bushwalking, working, doing home maintenance and all other physical activities I previously did.
18. I am not working. I was terminated from work after 30 years on 24 June 2015 and I have not worked since. I would love to work but do not know what job would have me. I cannot bend and lift and I cannot sit or stand for long periods. I cannot twist and turn or work at a fast pace. I am very frustrated and get very down about not being able to work.
19. I have been certified capable of working, but with all sorts of restrictions. I have sitting restrictions, lifting restrictions and bending and twisting restrictions. Nobody has suggested any job that I can do. I have applied for a few jobs at a bearings place and a spare parts job at a caravan place. I was not offered either job.
… .”[40]
[40]Exhibit J, PCB 21a – 21-e
Loss of earning capacity
57 It is clear enough that the plaintiff has admitted in cross-examination that he is physically able to do the tasks referred to therein for 16 hours per week. Senior Counsel for the plaintiff submits that the plaintiff is not able to carry out “suitable employment” as defined in s5 of the Act, principally having regard to:
(i) 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;
(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience.
58 It is clear enough that the evidence adduced in cross-examination relates to the plaintiff’s physical capacity to undertake the duties put to him. However, as Ashley and Kaye JJA stated in Richter v Driscoll[41] at paragraph 76:
“[R]eturn to work in employment ... requires more than that a physical capacity to engage in a task or tasks.”
[41][2016] VSCA 142
59 The employment must be, as specified in the definition of “no current work capacity”, “suitable employment”. For their Honours, the definition of “suitable employment” –
“... plainly shows that physical capacity to perform a particular task does not mean that an employment requiring that task thereby becomes suitable employment. If it were otherwise … (their Honours warned) … paragraphs (a)(ii), (iii) and (iv) would have no work to do.”[42]
[42]Richter v Driscoll (supra) at paragraph [76]
60 Accordingly, the question whether a worker is able to return to work in suitable employment, according to their Honours –
“... specifically requires consideration of matters travelling beyond physical capacity to perform a task.”[43]
[43]Richter v Driscoll (supra) at paragraph [77]
61 Accordingly, the construction which Ashley and Kaye JJA placed on the definitions of “no current work capacity” and “suitable employment” can be expressed as follows:
“... whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances – these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.”[44]
(Emphasis added).
[44]Richter v Driscoll (supra) at paragraph [95]
62 They further stated:
“The other, closely allied, way in which the matter may be put is shown in the passage of the judgment of Fletcher Moulton LJ in [Cardiff Corporation v Hall [1911] 1 KB 1009], where his Lordship referred to a worker’s incapacity being such as to destroy or impair his or her ‘powers of labour [as] a merchantable article’.”[45]
[45]Richter v Driscoll (supra) at paragraph [96]
63 Osborn JA agreed with Ashley and Kaye JJA in this regard. His Honour stated:
“The concept of return to work in employment necessarily engages the question of the worker’s employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. ...
A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.
This is not to equate ‘able to return to work’ with ‘able to obtain work’ or ‘able to find work’ as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.”[46]
(Emphasis added.)
[46]Richter v Driscoll (supra) at paragraphs [143]-[145]
Conclusion
64 In my view, the uncontested restrictions set out in the plaintiff’s affidavit aforementioned inform, to a large extent, his capacity to return to work “as a settled member of the workforce”. In particular, his reliability would be affected, in my view, by his sleeping patterns and the need to sometimes take days off work in order to recover from exacerbations. These matters, together with the constant pain and the need to take medication militates against him being able to perform in the workforce on a regular and reliable basis, his good intentions notwithstanding. It may well be that because of his motivation and overall creditworthiness, he may be able to get back to part-time work as a settled member of the workforce, but because of the matters referred to above, I do not believe that he would be able, on the balance of probabilities, to exceed a period of 16 hours per week. Accordingly, based upon the figures agreed to by counsel in exhibit 7, the worker has proved he has a loss of earning capacity of 40 per cent or more, and such incapacity is likely to be permanent.
65 Accordingly, leave will be granted to the plaintiff to issue proceedings for economic loss damages and based on the principles as set out in Abdulle v Advanced Wire & Cable Pty Ltd.[47]
[47][2008] VCC 1344
66 Leave will also be granted to issue proceedings for pain and suffering damages.
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