Manea v Victorian WorkCover Authority
[2015] VCC 803
•26 June 2015
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05443
| NICK MANEA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 10 June 2015 | |
DATE OF JUDGMENT: | 26 June 2015 | |
CASE MAY BE CITED AS: | Manea v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 803 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Workplace accident – injury to lower back – loss of earning capacity consequences – whether the plaintiff has residual capacity to work – creditworthiness and reliability
Legislation Cited: Accident Compensation Act 1985, 134AB
Cases Cited: Jones v Dunkel (1959) 101 CLR 298
Judgment: The plaintiff has leave to commence a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T J Seccull with Mr N R Dubrow | Slater & Gordon Ltd |
| For the Defendant | Mr P A Scanlon QC with Ms F A L Ryan | IDP Lawyers Pty Ltd |
HIS HONOUR:
Background
1 The plaintiff was born in Romania in April 1976. He arrived in Australia when he was seven years of age. He is now thirty-eight years of age. He lives in a domestic relationship. He and his partner have three children who are about fourteen, eight and five years of age. He has a child of a previous relationship who is independent of him in all respects.
2 The plaintiff left his secondary school when he was seventeen years of age. He worked in his family’s business and in odd jobs before commencing employment with the defendant in about February 2007. The defendant conducted its business of civil construction under the name and style of Midwest Civil. It is a business based in Ballarat.
The incident
3 On 26 October 2009, the plaintiff was working at Leith Street, Ballarat, undertaking work which he described as a “black spot road upgrade”. He climbed into the back of a tip truck to clean out mud and rubble in the tray of the truck. As he swung his left leg over the side of the tip truck, he felt a sharp pain like electric shock in his lower back. He then experienced significant pain.
4 The plaintiff continued working that day and the following day. On the following day, he was driving a dump truck over rough ground. By the end of that day, he could barely stand up. He was unable to return to work on the following day. By that time, he was experiencing pain in his lower back, which radiated into his left groin and left leg.
What is in issue?
5 There is no issue between the parties that the plaintiff’s pain and suffering consequences are “serious”. The real issue is whether the loss of earning capacity consequences are “serious”.
6 The plaintiff’s position is that he has no residual capacity for suitable employment, although, he did concede that he could probably undertake limited work. The defendant acknowledged that if I accept the plaintiff’s position, then it is open to me to find that his loss of earning capacity consequences are “serious”. However, it was the defendant’s position that the plaintiff is able to return to alternative employment.
7 Additionally, it was part of the defendant’s position that the plaintiff was not an entirely creditworthy and reliability witness.
8 There was no issue between the parties as to the applicable law relevant to the determination of whether the loss of earning capacity consequences are “serious”.
The Plaintiff’s case
9 The defendant did not cavil with the contents of the plaintiff’s affidavits relevant to his description of the pain and suffering consequences and loss of earning capacity consequences which the plaintiff suffered between the occurrence of his injury, and subsequent to the surgery performed by Mr Wallace and his return to work at The Forge Pizzeria restaurant (“the pizza restaurant”).
10 Therefore, I propose to commence a summary of the plaintiff’s case in conformity with the manner in which it was submitted by Mr Seccull of counsel, who appeared for the plaintiff with Mr Dubrow of Counsel.
11 Mr Seccull submitted that the logical starting point is to understand the nature and extent of the injury which the plaintiff initially suffered. Dr Smith, the plaintiff’s then general practitioner, referred the plaintiff to have a CT scan, which was taken on 14 April 2010. The radiologist reported that it demonstrated a sequestrated disc that was compressing the right S1 nerve root and that there was evidence of a left posterior paracentral and posterolateral disc herniation at the L5-S1 level, compressing the left L5 nerve root.
12 Dr Smith referred the plaintiff to Mr Wallace, neurosurgeon, who first saw the plaintiff in June 2010. Mr Wallace referred the plaintiff to have an MRI scan, which was taken on 1 June 2011. The radiologist reported that it demonstrated a broad-based left paracentral/proximal foraminal disc protrusion at L5-S1, with posterior displacement and compression of the left S1 nerve, minor compromise of the exiting left L5 nerve in the left L5-S1 foramen, and the smaller right paracentral disc protrusion at L5-S1, with questionable posterior displacement of the right S1 nerve.
13 Mr Wallace initially advised the plaintiff to undergo conservative treatment. That treatment involved the plaintiff wearing a spinal brace, undergoing rehabilitation and using Tramadol for pain relief. The conservative treatment did not result in any significant improvement. Mr Wallace advised the plaintiff to undergo surgery.
14 On 16 September 2011, Mr Wallace performed an L5-S1 discectomy with decompression of the right and left S1 nerve roots. In the operation note, Mr Wallace described the difficulty in undertaking the surgery. He described it as being the most difficult L5-S1 discectomy that he had encountered. Despite the apparent difficulty in undertaking the surgery, it would appear that it was, at least temporarily, successful. When Mr Wallace reviewed the plaintiff on 3 July 2012, he recorded that the plaintiff was “thrilled” with the outcome of the surgery because he had lost the severe groin pain that he had previously experienced, and the feeling in his legs was noticeably better.
15 Mr Seccull submitted that there can be no doubt that the plaintiff suffered a very significant discal injury, which had resulted in not only significant lower back pain, but additionally, sciatic pain affecting both legs. He submitted that it was understandable why the plaintiff later suffered a significant deterioration in his condition, given the background of having suffered such a very significant discal injury.
16 I was referred to a number of observations made by treating medical practitioners which demonstrated that the plaintiff had not experienced a complete recovery, but was at risk of deterioration, and perhaps significant deterioration, in the condition of his lower back.
17 I was firstly referred to the report of Mr Wallace dated 24 October 2013, in which he said that he thought that it was more likely that the condition of the plaintiff’s lower back would be fairly stable in the future, but there was a slight risk of long-term deterioration. He added that he believed that the plaintiff did not have a capacity for his pre-injury employment, but retained a capacity for light duties and part-time work, which he hoped the plaintiff would be able to find and continue to work in over the long-term.
18 Dr Smith also referred the plaintiff to Dr Cheong, physician, who first saw the plaintiff on 24 September 2012 and again on 22 October 2012. He was aware of the treatment which the plaintiff had undergone, both conservatively and surgically, at the time when he first saw the plaintiff. In his report dated 27 May 2015, he said that the plaintiff’s lower back condition would deteriorate with time. He added that he believed that the plaintiff had no capacity for his pre-injury employment. He considered that the plaintiff was “severely” limited in his capacity for work generally, that the plaintiff could not bend, sit or stand for extended periods of time, and could not lift objects in excess of 5 kilograms.
19 Mr Seccull submitted that I should accept that the plaintiff was well motivated, not workshy and a person who had made every effort to return to employment following the injury and the surgery.
20 The plaintiff was initially off work for three to four weeks following the occurrence of the injury to his lower back. He then returned to his usual employment. It would appear that he was off work after aggravating his lower back injury in April 2010, but he again returned to light duties on reduced hours in July 2010. In about October 2010, he returned to what he described as field duties, which resulted in an aggravation of his lower back and the onset of severe lower back pain. I assume that he was then off work from about that time. His employment was terminated in May 2011.
21 Despite the deterioration in the condition of his lower back resulting in his incapacity for work, the plaintiff undertook a 15-week course at NMIT in plant tissue propagation. He said it was his mother’s idea. She wanted to motivate him to do something. What followed was the advice given by Mr Wallace that the plaintiff have surgery as the viable option to ameliorate the condition of his lower back and the impact it was having upon his overall functioning.
22 The plaintiff found employment in November 2012 with the pizza restaurant. The plaintiff described the work that he performed as “food preparation”. He stood at a workstation where he would cut up foodstuffs, which were then used by a cook in the preparation of pizzas. He worked full time for about six months, often working up to 40 hours per week and on occasions, in excess of those hours. He subsequently suffered deterioration of his lower back injury and a return of the groin pain and sciatica to the same levels which he had experienced before he underwent surgery. It was because of the deterioration in his lower back that he reduced his hours from full time to part time from about April 2013. As a result of further deterioration, he reduced his hours even further to the point where he stopped working altogether by about December 2013/January 2014. At the time when he ceased working, he was working about four hours a week, or thereabouts.
23 The plaintiff’s domestic circumstances then changed very significantly. The plaintiff and his partner have three children. His partner previously worked part time as a kitchenhand. It would appear that the domestic arrangements which the plaintiff and his partner had adopted were that he worked full time and she worked part time. This enabled them to earn the income which they needed to provide care for their young children and survive comfortably. At the time when the plaintiff ceased working, his children were about six, seven and fourteen years of age. The plaintiff then occupied the position of house husband, looking after the children. His partner obtained alternative employment as an instrument technician at a Ballarat hospital working full time. She continues to work in that position, undertaking those hours.
24 The plaintiff resorted to drinking alcohol to obtain pain relief. His consumption of alcohol got the better of him. On Anzac Day, April 2013, he was apprehended by police and charged with a drink-driving offence. The level of his reading resulted in him losing his license to drive a motor vehicle for two-and-a-half years. Mr Scanlon QC submitted that the loss of license was not merely coincidental to the plaintiff’s reduction in his working hours with the pizza restaurant and he and his partner rearranging their domestic and working affairs. I will return to this subject and to Mr Scanlon’s submissions later in these reasons.
25 Mr Seccull submitted that the drink-driving offence was coincidental. He submitted that I should accept the plaintiff’s evidence, that despite the good result he achieved from the surgery, the prophecy of deterioration came to pass. He submitted that the opinions of Dr Choong, Mr Grossbard and Dr Sutcliffe demonstrate that the plaintiff now suffers from a very disabling lower back condition, which has effectively reduced his capacity for work to the point where he is incapacitated for suitable employment.
26 Mr Grossbard examined the plaintiff on a medico-legal basis on 11 November 2014. Mr Seccull emphasised the gravity of the plaintiff’s lower back condition by reference to the examination conducted by Mr Grossbard. Mr Grossbard concluded, after examining the plaintiff, that his range of lumbar flexion and extension were reduced by 50 per cent in each direction. Lateral flexion was reduced to about 70 per cent. There was one centimetre of thigh wasting on the left side and two centimetres of calf wasting. There was diminished sensation to light touch and pinprick at the L5 and S1 nerve root distributions. There was weakness of the extensor halluces longus on the left side reduced to power III, and inversion was reduced to power IV+. The left ankle reflex was absent.
27 Mr Grossbard considered that whilst the plaintiff experienced some initial improvement in his symptoms, he continued to have pain in his lower back and left leg, particularly with activity. He also considered that the plaintiff continued to have signs consistent with radiculopathy on the left side – affected by both the L5 and S1 nerve roots and exemplified by muscle wasting – the absence of a left ankle reflex, weakness of the extensor halluces and ankle inversion and reduced sensation in the L5 and S1 nerve root distributions.
28 Mr Grossbard considered that the plaintiff was unfit for his pre-injury employment. He considered that the plaintiff should undergo retraining with a view to pursuing sedentary and semi-sedentary work. He added that the plaintiff would be limited in his ability to perform work that required him to bend and lift or remain in one position for long periods of time. He considered that the plaintiff’s lower back injury was stable and was not likely to change in the foreseeable future.
29 Dr Sutcliffe, occupational physician, examined the plaintiff on a medico-legal basis on 19 February 2015. Like Mr Grossbard, Dr Sutcliffe found significant deficits when she examined the plaintiff – namely, his gait was antalgic with decreased elevation of the heels and toes on the left; range of movement of the lumbosacral spine was 40 degrees of flexion, 5 degrees of extension; 30 degrees of right and left lateral flexion and 25 degrees of rotation bilaterally; straight leg raising was restricted to 55 degrees on the right and 30 degrees on the left; altered power of the left leg with decreased dorsiflexion and plantar flexion of the foot with no eversion possible and there was little inversion; decreased power of the first toe extension, circumference of the right calf was 40 centimetres and the left 38 centimetres; reflexes of 3+ at both knees, 2+ at the right ankle and 1+ at the left ankle, and there was altered sensation in the left calf to light touch compared to the right calf.
30 Dr Sutcliffe was asked to offer an opinion on whether the plaintiff was fit to undertake alternative forms of employment, namely, information officer/contact centre officer; retail sales assistant; mobile crane operator, and IT support officer/help desk operator. Each of those forms of employment were referred to in a report of Nabenet dated 9 February 2011. Nabenet was engaged by the defendant to consider whether the plaintiff’s residual capacity for employment fitted any particular forms of employment. Dr Sutcliffe considered that the plaintiff was not capable of undertaking any of those forms of employment.
31 Dr Sutcliffe considered that the plaintiff had no capacity to undertake bending, lifting, twisting or stooping, pushing, pulling or lifting or repetitive or prolonged use of his lower back or prolonged sitting, standing or walking. Additionally, she considered that he had a limited capacity to undertake overhead activities and no capacity for prolonged kneeling, squatting or crouching. She considered that those limitations would affect the plaintiff into the foreseeable future. She concluded that given the plaintiff’s incapacity, age, education, place of residence, skill and work experience, that he has no capacity for suitable employment now and into the foreseeable future, except that he might be able to undertake some self-employment, which she considered to be limited to IT training in interactive games if he completes the training course that he commenced in 2014.
32 The IT training in interactive games referred to by Dr Sutcliffe was referred to somewhat differently by the plaintiff. He described it as a course of study in interactive game and app (applications) design with Evocca College online. The plaintiff has completed one unit of a course of study, which had an expected duration of twelve. He has not returned to that course because he says he is unable to sit at a computer for sufficient time to confidently undertake the course.
33 In conclusion, Mr Seccull submitted that I should accept the plaintiff as a creditworthy and reliable man, whose evidence I should accept without reservation. He submitted that I should be comfortable in reaching that conclusion, by being informed by the gravity of the injury and the effect of the medical evidence, which demonstrates that despite an apparently very good result from the surgery, the prophecy of deterioration ultimately came to pass, resulting in the plaintiff being unable to persist with his employment with the pizza restaurant or in any other employment.
34 Additionally, Mr Seccull submitted that the reports of Katrine Green Consulting Pty Ltd dated 5 May 2015, 20 May 2015 and 9 June 2015 were prepared by Ms Green after conferring with the plaintiff, and by having regard to both the plaintiff’s and defendant’s medical reports to understand what residual capacity for employment the plaintiff has retained. It was from that perspective that she considered that the plaintiff did not have a capacity to undertake work as a rental officer or a despatch clerk. Those two forms of employment were the subject of an opinion in a report of Recovre, which I have summarised below in paragraph 50.
The Defendant’s case
35 Mr Scanlon submitted that there were a number of aspects of the plaintiff’s evidence which were so unsatisfactory as to amount to the plaintiff lacking creditworthiness and reliability.
36 The major platform of the attack made by Mr Scanlon upon the plaintiff’s creditworthiness was the plaintiff’s loss of license. He submitted that it was more than coincidental that the reduction in the plaintiff’s hours of work at the pizza restaurant occurred at the time he lost his license. There is little doubt that both events occurred at around the same time
37 The question is, did the plaintiff’s living arrangements vary significantly as a consequence of his back injury, preventing him from performing his duties at the pizza restaurant, or did his partner obtain alternative employment and increase her hours because it was more convenient to structure their lives that way, due to the plaintiff’s loss of license?
38 The plaintiff worked a number of different shifts at the pizza restaurant. The morning shift was from 7.00/7.30am to 5.00pm. The afternoon shift was from about 11.00am to about 3.00/4.00pm. The nightshift was from about 3.00/4.00pm to 10.30pm, and as late as midnight.
39 Under cross-examination, the plaintiff denied that he became a house husband because his loss of license meant that he would have difficulty commuting between his place of residence and the pizza restaurant. He said that had it not been for a significant deterioration in the condition of his lower back, he would have continued working, and could have made arrangements with his partner, and perhaps others, to pick him up from the pizza restaurant if he worked a late shift. He acknowledged that working a late shift meant that there would be no public transport available after 7.00pm.
40 There were other aspects of his cross-examination which Mr Scanlon relied upon as evidence of the plaintiff’s lack of creditworthiness and reliability. Firstly was that in his second affidavit, the plaintiff said that he resigned from his employment due to his inability to meet the demands of the tasks required of him in that employment. At first, his answers were equivocal as to whether that was correct or not, but he finally conceded that what he swore in that respect was false.
41 Secondly, in his first affidavit, he said that his employment “lasted about six months”. That would take the plaintiff from about November 2012 to about April 2013; however, that was wrong. The plaintiff was in fact employed for a significantly longer period, and indeed, to 2 December 2013/January 2014. The reason he advanced for that obvious misstatement was that he was confused at the time when he swore that affidavit; however, he corrected that misstatement in his second affidavit.
42 Thirdly, under cross-examination, it transpired that the plaintiff’s parents have a sophisticated farming business at Meredith. They propagate and sell plants at markets on weekends. At first his answers were at least equivocal about the nature and extent of that farming business, if not evasive and non-responsive. He eventually conceded that it was a farming business comprising a growing shed containing thousands of plants. A truck is used to transport racks of plants to markets. As a result of his mother’s incapacity due to hip surgery, he has helped his father on a number of weekends to load the racks into the truck and then to unload them at markets and to assist in the selling of the plants. The truck has an elevator arrangement at the rear, which allows the racks of plants to be moved into and out of the truck with some ease. In the course of an average day at market, when attended by the plaintiff, $300 to $400 in sales might pass through his hands and the same through his father’s hands. He conceded that the sales on any weekend might be as much as $2,000 to $3,000. He denied that he was active in his parents’ farming business apart from helping out because of his mother’s incapacity.
43 Fourthly, under cross-examination, he was asked why, if he had a sitting capacity of about 45 minutes, he did not continue to participate in the interactive game and app design course with Evocca College. It was put to him that if he was at home at a time when his children were at school, that he would have ample time and opportunity to do his computer work to progress himself further through that course. He said that he could not do that because of problems with sitting and because of interference he has suffered with his concentration.
44 Mr Scanlon submitted, in effect, that the plaintiff could have continued working at the pizza restaurant. He added that the plaintiff’s work with his parents’ farming businesses demonstrated a capacity to be active. Additionally, the plaintiff had the opportunity and the capacity to complete the course with Evocca College.
45 Fifthly, under further cross-examination, he was asked whether he could undertake specific forms of work referred to in a report of Recovre, dated 22 May 2015. The report was prepared by Ms Janette Ash, injury management consultant/occupational therapist, and Ms Robin Willett, employment placement consultant. He was asked whether he could undertake work as a rental officer with a vehicle rental service or a despatch clerk with a food packaging business. He was also asked whether he could work as a gatekeeper at a business premises. The plaintiff said that he could not undertake any of those forms of employment, principally because of his difficulty in sitting for prolonged periods of time.
46 Mr Scanlon submitted that Ms Ash and Ms Willett had undertaken an analysis of the suitability of those forms of employment (not as a gatekeeper) by having regard to the plaintiff’s evidence in his affidavits; the plaintiff’s medical reports; the defendant’s medical reports and a number of rehabilitation reports, which enabled them to understand what residual capacity for employment the plaintiff had retained. It was from that perspective that they considered employment as a rental officer or despatch clerk fitted within the plaintiff’s residual capacity for employment. I have read the report carefully. It is true that the foregoing approach was undertaken in identifying those two particular forms of employment as coming within the range of suitable employment.
47 In conclusion, Mr Scanlon asked the question rhetorically, to make the substantive point on which his submission was based, what caused the alteration in the plaintiff’s circumstances which resulted in him being unable to continue working with the pizza restaurant, and additionally I add, pursuing his course of study with Evocca and seeking out and obtaining alternative employment of the kind referred to in the report of Recovre.
Findings on the evidence
48 I should start by observing that the manner in which the proceeding was conducted by the parties was a dispute over the facts. Neither Mr Seccull nor Mr Scanlon referred me to any authorities which they considered were relevant to my consideration of whether I accepted or rejected the plaintiff’s evidence regarding his residual capacity for suitable employment.
49 The only question of law raised by Mr Scanlon was whether I should draw an adverse inference against the plaintiff based upon the principle referred to in Jones v Dunkel.[1] He submitted that the plaintiff could have obtained affidavits from his partner and parents attesting to his capacity to function and why he stopped working at the pizza restaurant. I accept the plaintiff’s evidence on the principal issue of his capacity to undertake suitable employment for the reasons set out below, which renders the submission based upon Jones v Dunkel of no account.
[1] (1959) 101 CLR 298
50 I am left in no doubt that the plaintiff suffered a very serious level of damage to his lower spine. After it became apparent that it was recalcitrant to conservative treatment, he was advised by Mr Wallace to have surgery. Mr Wallace’s operation note makes it abundantly clear that the plaintiff had significant pathological changes in his lower spine, which required surgical amelioration. It was a difficult surgical procedure, but one which was nonetheless undertaken expertly by Mr Wallace and which gave the plaintiff a very good result, at least temporarily.
51 Mr Wallace’s report, which I referred to earlier, and correspondence forwarded to the plaintiff’s general practitioners, demonstrates that the plaintiff obtained a very good result from the surgery, to the extent that he told Mr Wallace that he was “thrilled” with the result. Mr Wallace’s attention was turned to the plaintiff’s prospects of obtaining suitable employment, which he noted in some of the correspondence.
52 The extent of the good result is clearly evidenced by the fact that the plaintiff returned to suitable employment, being employment with the pizza restaurant. He worked up to 40 hours a week and sometimes in excess of those hours, doing so without incident. He undertook that work full time for six months before he suffered a deterioration in the condition of his lower back, which resulted in him working reduced hours to the point where he stopped working altogether in December 2013/January 2014.
53 The coincidence of the plaintiff’s loss of license and the reduction in his hours of work with the pizza restaurant, referred to above in paragraph 36, tends to suggest that the loss of license was the critical event in the plaintiff reducing his hours of work; however, I think that is to place too much emphasis on the plaintiff’s loss of license and to ignore a number of other relevant factors.
54 Mr Wallace considered that in the long term, the plaintiff may experience a deterioration in the condition of his lower back. Dr Cheong was more pessimistic than Mr Wallace. In his second report dated 27 May 2015, after the plaintiff had ceased working with the pizza restaurant, he appears very pessimistic, stating that he expected the plaintiff’s lower back condition to deteriorate with time.
55 I think the question of whether it was the plaintiff’s loss of license or a deterioration in his lower back condition that resulted in the reduction in hours of work with the pizza restaurant, must be seen in the context of that pessimistic prognosis.
56 I am fortified in reaching that conclusion because of two medical opinions, which were provided after the plaintiff ceased working at the pizza restaurant. The first is the opinion of Mr Grossbard. I have summarised Mr Grossbard’s examination findings fully. It is abundantly clear that the plaintiff carries neurological deficits clearly identifiable on examination. Consistent findings of that kind were made by Dr Sutcliffe. Both were pessimistic about the plaintiff’s prospects of undertaking work. Mr Grossbard thought that sedentary and semi-sedentary work might be appropriate, but Dr Sutcliffe was of the opinion that was unlikely to be so. She considered that ultimately, the plaintiff was limited to self-employment, perhaps in an IT field.
57 There is nothing in the manner in which the proceeding was undertaken to point to any of the medical opinions I have just referred to being unreliable, except perhaps to the extent that the plaintiff was not entirely frank with some of the examining medical practitioners regarding how long he worked with the pizza restaurant, the change in his domestic circumstances, and the activities he has undertaken in his parents’ farming business.
58 I am not persuaded that the attack on the plaintiff’s creditworthiness and reliability is sufficient to upset the basis for the findings I have made above. The fact the plaintiff did not resign his employment as initially submitted is a mark against him; however, it is a curious proposition that his credit is attacked for not deposing to the full extent his work with the pizza restaurant, when the fact that he worked for much longer than just six months is rather more to his credit.
59 As far as the activities he has undertaken with his parents’ farming business, it appears to me that they are on the modest side. There is no evidence which suggests that the plaintiff is actively involved in any aspect of the farming business. I do not accept that activity of that kind equates with the plaintiff being able to work full time or, alternatively, to a substantial extent, in either of the two forms of employment referred to in the report of Recovre, or as a gatekeeper.
60 I accept the plaintiff’s evidence that he could probably work one shift in suitable employment per week. He was initially reluctant to make a concession of that kind, but when pressed under cross-examination, he conceded that he could probably work to that extent. I accept his evidence in that regard, and in doing so, I am largely influenced by the opinions of Dr Cheong, Mr Grossbard and Dr Sutcliffe. I think there is a consistency in their opinions, that the plaintiff has a significant impairment of function of his lower back, which has reduced his employment options to very little.
61 As far as the plaintiff’s domestic arrangements are concerned, it appears to me that it is easily explained. The plaintiff suffered a further reduction in his capacity for work with the pizza restaurant. No doubt that had an impact on the income available to his family. A decision was made that his wife would work full time and that he would occupy the position of house husband. It appears to me that that arrangement occurred as a result of the deterioration in the plaintiff’s lower back condition, and not because of his loss of his license.
62 It is not my intention to be uncharitable to the plaintiff, but he struck me as being a simple and uncomplicated man. I have some misgivings about some of the matters he deposed to in his affidavits that were the subject of cross-examination, and his failure to depose to the full extent of his activities, which again were the subject of cross-examination; however, I think those misgivings need to be put in the context of the injury, the impairment resulting from the injury and the extent to which a number of highly qualified medical practitioners consider he is incapacitated for suitable employment.
63 Therefore, I find that the plaintiff has suffered an impairment of the function of his lower back, which has resulted in him suffering an incapacity for suitable employment to the extent that it is more likely than not that he is limited to working one day per week in the work he was previously doing with the pizza restaurant. The income that he could generate from working a six to eight-hour shift at about $20 or so per hour would produce a gross income of $120 to $160 per week. The agreed figures that Mr Seccull and Mr Scanlon informed me that I should apply, is the income which the plaintiff earned in the financial year ending 30 June 2009 of $58,050. A calculation of 60 per cent of that income on an annual basis is $34,830 gross per annum, and on a weekly basis is $669.81. Therefore, what the plaintiff can earn exploiting his residual capacity for suitable employment establishes that he has lost the requisite degree of earning capacity consistent with the statutory test.
64 I should say something about the opinions contained in the reports of Recovre and Katrine Green Pty Ltd. There is an obvious significant gulf between the positions which each of the authors of those reports have occupied. Inherent in the reasons I have given thus far is a rejection of the opinion of the authors of the Recovre report and an acceptance of the opinion of the author of the Katrine Green Pty Ltd report. The reasons for my preference is that I am, as I have already said, influenced by the medical opinions, which I have referred to above, in concluding that I should accept the plaintiff’s evidence; that his capacity to engage in suitable employment is very limited.
Orders
65 Subject to any further submissions, I propose to order that the plaintiff be given leave to bring a proceeding at common law to recover damages for both pain and suffering consequences and loss of earning capacity consequences.
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