McNamara v The Trustee for Elizabeth Andrews Unit Trust
[2016] VCC 591
•16 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02105
| SHANNON McNAMARA | Plaintiff |
| v | |
| THE TRUSTEE FOR ELIZABETH ANDREWS UNIT TRUST & ORS | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 April 2016 | |
DATE OF JUDGMENT: | 16 May 2016 | |
CASE MAY BE CITED AS: | McNamara v The Trustee for Elizabeth Andrews Unit Trust & Ors | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 591 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lumbar spine
Legislation Cited: Accident Compensation Act 1985, s 134AB
Cases Cited:Barlow v Hollis [2000] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr B Anderson | Slater and Gordon |
| For the Defendant | Mr D Curtain QC with Ms C Kusiak | Thomson Geer |
HER HONOUR:
Preliminary
1 The plaintiff was employed by the defendant as a dispatch manager for its corporate catering business. The plaintiff claims he suffered injury to his lumbar spine over the course of his employment between June 2004 and September 2011, whilst lifting crates of food and catering equipment. He claims an exacerbation of back pain on 7 March 2011 whilst lifting a hot box and other items.
2This is an application for leave to bring proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave for damages for both pain and suffering and loss of earning capacity.
3Mr J Mighell QC and Mr B Anderson appeared for the plaintiff and Mr D Curtain QC and Ms C Kusiak appeared for the defendant.
4The plaintiff claims he has suffered an injury to his lumbar spine, including intervertebral disc damage, with nerve root impingement requiring spinal surgery. The body function said to be impaired is the spine.
5Only the plaintiff was called to give evidence and he was cross-examined. Also in evidence was an affidavit from his partner, together with medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider to be most relevant, and those which I have relied upon in coming to the conclusions referred to in this Judgment.[1]
[1]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16], and the “pathway of reasoning” per Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38]
6The defendant served a Notice under s4(a) of the WorkCover (Litigated Claims) Legal Costs Order 2010 whereby it conceded the plaintiff has a serious injury for pain and suffering purposes. Therefore, I need only determine if the plaintiff suffers loss of earning capacity consequences to the requisite level. The onus is on the plaintiff to satisfy me that:
(a) he has sustained a loss of earning capacity of 40 per cent or more; and
(b)he will, after the date of the decision, continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.[2]
[2]s134AB(38)(e) of the Act
Relevant background
7The plaintiff is a 39 year old man. He lives with his de facto partner, Georgia.
8He finished school in Year 12 and then obtained work as a barman and manager at The Ivy nightclub. During that period he also studied accounting at TAFE, but after six months he dropped out of the course. He later completed a real estate agents course, but he did not work as a real estate agent.
9For the next seven or eight years, he worked as a cook at different restaurants in Melbourne. He then worked as a truck driver with his brother-in-law for about six months, before commencing employment with the defendant.
10Prior to suffering his back injury, the plaintiff was very active. He did boxing. He trained in the gym three to five times per week. He also went running two or three times a week around the Botanical Gardens.[3]
[3]Plaintiff’s Court Book (“PCB”) 30
11He had previously suffered Scheuermann’s disease, which caused him to suffer upper/middle back pain from time to time. However, this condition did not require any treatment or stop him doing any of the activities he enjoyed.[4]
[4]PCB 30
The injury and its consequences
12The plaintiff commenced employment with the defendant in June 2004. He was initially employed as a driver and later became the dispatch manager. He would deliver crates of food and other goods such as, crockery, tables, urns, and portable ovens for use at corporate functions.[5] There was also some office work involved.
[5]PCB 25
13The plaintiff began to suffer back pain whilst doing this frequent lifting. The pain began to worsen in late 2008. At that time, he obtained some physiotherapy treatment, and began to take Oxycontin medication for pain relief. In February 2009, he had two weeks off work. He then returned on light duties, before later returning to normal duties.
14In 2010 and early 2011, the plaintiff continued to suffer back pain. On 7 March 2011 he then suffered an exacerbation of back pain when lifting a hot box and other items. After this he had some further time off work, and returned for physiotherapy treatment.
15On 19 September 2011, the plaintiff was referred to orthopaedic surgeon, Mr John Cunningham. Shortly after, an MRI scan of his lumbar spine was taken and it showed small disc protrusions at L4-5 and L5-S1 without neural compression.[6] Following this, the plaintiff underwent facet joint injections.
[6]PCB 45
16In January 2012, the plaintiff was referred to neurosurgeon, Professor Peter Teddy. At that time, the plaintiff was working modified duties for 12 hours per week.
17In March 2012, the plaintiff suffered severe pain in his back and he attended the Epworth Hospital’s Emergency Department. Following this, a further MRI scan of his lumbar spine was taken. The scan showed a “huge central extrusion at L4/5 causing almost complete obliteration of the thecal sac and compression of proximal L5 nerve root sheaths.”[7]
[7]PCB 46
18In May 2012, the plaintiff attended a pain management specialist, Dr Richard Sullivan. He underwent a series of nerve block injections to his lumbar spine in May, June and September 2012.[8] He then completed an intensive pain management program in October/November 2012.
[8]PCB 27
19In late 2012, the plaintiff began receiving treatment from a psychologist, Joanna Young, as he felt stressed from his ongoing problems.[9]
[9]PCB 27
20Throughout 2013, he continued with physiotherapy treatment and treatment from Dr Sullivan.
21In March 2014, the plaintiff again attended the Epworth Hospital’s Emergency Department with severe back pain and left leg pain. A further MRI scan was taken and it was recommended surgery be performed by Professor Teddy. On 20 March 2014, the plaintiff underwent an L4 and partial L5 laminectomy, with microdiscectomy and rhizolysis. This surgery resulted in an improvement in his leg pain, but he continued to suffer back pain.[10]
[10]PCB 66
22Currently, the plaintiff has a physiotherapist instructed gym session every week. He also sees his general practitioner, Dr Noel Leon, approximately once a month. He has been under the care of Dr Leon since January 2014. Dr Leon prescribes Palexia, which is a pain medication the plaintiff takes daily. He also takes Panadeine or Nurofen Plus, and estimated that he takes five, six or seven each day.[11]
[11]Transcript (“T”) 11, Line(s) (“L”) 17-20
23The plaintiff complains that his back pain is constant. The pain extends to his left buttock, groin and sometimes into his left leg. He said it is generally worse with physical activity. The pain is worse when he stands or sits in the same place for a long period of time.[12] He stated that the best positions for the pain are lying down flat on his back or in a foetal position.[13] The pain interferes with his sleep and he wakes a minimum of three times a night.[14]
[12]PCB 28
[13]PCB 28
[14]PCB 32
24In December 2015, the plaintiff and his wife travelled to Bali for a holiday. He said they flew business class, so that he could lie down on the flight. He said this was not something they could afford, but considered it a necessity, as he would have been unable to sit up for the five hour flight.[15]
[15]T51, L1-9
25Since the injury, the plaintiff has undergone some training to assist him in obtaining suitable employment. In 2013, he completed a Certificate IV in Occupational Health and Safety at RMIT. He also obtained gaming and responsible service of alcohol certificates. In 2015, he completed a Diploma in Hospitality at TAFE. In late 2015, the plaintiff obtained a limousine licence.
26For a 10 week period, from early October 2015 through to early December 2015, the plaintiff worked part-time as a limousine driver. He obtained this employment through a friend. He would render the invoices to Barton Chauffers, who would then pay him for the trips he did, and reimburse his expenses, such as parking and petrol.[16]
[16]Exhibit 4
27The limousine would be parked at the plaintiff’s residence and he would be called for jobs as required. The jobs would usually involve a maximum drive time of 45 minutes.[17]
[17]T15, L28-29
28The plaintiff said he struggled with this work and he needed regular breaks between jobs in order to lie down and to allow his back to recover. He stated, “I’d have to come home and curl up in the foetal position regularly, sometimes two or three times a day in between jobs.”[18] The plaintiff further stated that “I had a spot down in Sunbury where I used to park when I had an airport job where I could hide and lie in the back so no one could see me and just sit there and try and get my breath.”[19] He also stated that he needed “copious”[20] amounts of medication to cope with this work and that some days he would “take up to 30 Nurofen tablets or Panadeine.”[21]
[18]T50, L2-6
[19]T50, L7-12
[20]T50, L4
[21]T49, L12-16
29The plaintiff said that following his return from Bali, he was offered a full-time position with Barton Chauffers, working six days a week. He said he could not accept the full-time position because of his back pain.[22] He was then told if he could not work full-time, he would not get any more work from them.[23]
[22]T29, L24-31
[23]T31, L9-12
30Since that time, the plaintiff has not applied to any other chauffer businesses for part-time work.[24] He has not considered driving for Uber, in part because he considered “they were breaking the law”[25] and also because it would put him in the same situation he was in when working for Barton Chauffers, which involved excruciating pain.[26]
[24]T31, L22-23
[25]T16, L12-17
[26]T16, L18-23, T33, 28-29
31The 10 week period from early October 2015-December 2015 was the plaintiff’s only attempt at returning to work. A table of his working hours and remuneration, as summarised by me, are detailed in appendix A and attached to this Judgment.
32In calculating his earnings from Barton Chauffeurs, I have disregarded his reimbursement expenses and only considered the money paid to him for each trip, as that reflects his earnings from personal exertion. As such, I have calculated that the plaintiff earned an average of $385.37 per week in the 10 weeks he was employed as a limousine driver. In his busiest week he earned $749.70. For one week he did not work at all, but otherwise the week with his lowest earnings was $224.10.
33During the 10 week period, the plaintiff worked only 27 days. On the days he worked, he averaged three jobs per day.
34Mr Curtain cross-examined the plaintiff as to his attendances on Dr Leon during this period.
35On 2 November 2015, the plaintiff attended Dr Leon and the relevant part of the clinical notes recorded:
“The patient has commenced working as a driver 3 weeks ago. The patient is working about 5 hours a day, 3-4 hours of which driving and 1-3 rest in this period. Ceased analesia (sic) 1 week after reducing dose but the patient has had pain to point it is hard to work if he had to work. Takes 1 note when required now. The patient will increase hours as tolerated.”[27]
[27]Exhibit 3
36 A script of Palexia was prescribed at this time.
37 On 30 November 2015, the plaintiff attended Dr Leon and the relevant part of the clinical note recorded:
“The patient has been working. Enjoying work. Working up to 45 minutes poper (sic) job and rests between jobs 30 mins or so. Has worked 2 days in a row for the first time. Has course work due. 4 x jobs yesterday. Ran out of Palexia 2 days ago and notices pain has worsened.”[28]
[28]Exhibit 3
38 A further script of Palexia was prescribed at this time.
39 Mr Curtain put to the plaintiff that this history was incorrect, both in respect to him having worked more than two days in a row for the first time, and to him having not worked the day before. The plaintiff denied he told Dr Leon the wrong information and said he thought Dr Leon must have misunderstood him.[29] Upon further questioning, the plaintiff said he did not want Dr Leon to stop him working.[30]
[29]T14, L20-27
[30]T23, L19-22
40 On 16 December 2016, the plaintiff attended Dr Leon for numerous medical concerns. The record indicated that, on examination, the plaintiff had an improved range of motion in his lower back, but that it was still limited.[31] A further script of Palexia was prescribed.
[31]Exhibit 3
41 The next attendance on Dr Leon, at which the plaintiff’s work situation was discussed, was on 12 February 2016. The relevant part of the clinical note recorded:
“The patient hasn’t had much work with limosine (sic) service. Passed all subjects at course- Diploma of Hospitality – awaiting credentials. Active…Pain varies. At times it can be painful at times with certain activities- sitting longer than 20 minutes; driving after 60 minutes; walking after 60 minutes.”[32]
[32]Exhibit 3
42 Mr Curtain asked the plaintiff if he told Dr Leon “he hasn’t had much work.” The plaintiff denied this and said he told Dr Leon he had no work.[33]
[33]T31, L13-18
43 In my view, the plaintiff’s attendances upon Dr Leon during this period do not discredit his claim that he suffered increased pain and that he took increased over-the-counter medication, whilst doing the driving work. This is supported by Dr Leon’s note of 2 November 2015, that “he had pain to point it is hard to work”. I accept that the plaintiff was keen to succeed in his attempted return to work. I accept his explanation that he did not tell Dr Leon about his increased pain at his attendance on 30 November, as he did not want to be stopped working. I also note that Palexia medication was prescribed during this period.
44 In approximately February 2012 the plaintiff and his partner Georgia, set up a personal concierge business called “Melbourne Lifestyle Management”. An online article promoting the business described it as being a “personal concierge service, that will, for a fee, undertake jobs for clients ranging from home maintenance to event management.”[34] The online article featured a photograph of the plaintiff and his partner, and the accompanying interview frequently referred to the business involving both the plaintiff and his partner.
[34]Exhibit 2
45 The plaintiff denied any involvement in the business. He said it was his partner’s idea.[35] He had nothing to do with the running of it and denied ever working for it.[36]
[35]T39, L12-13
[36]T40, L22-29
46 He maintained his partner had set up the business and “for tax purposes it was better to have it under both names supposedly.”[37]
[37]T37 L17-22
47 The online article claimed the business had 15 clients, and that one of their most popular requests was looking after pets for clients on holidays. When asked about this, the plaintiff said he had no idea how many clients the business had,[38]and that they had never taken care of pets when people were on holidays.[39]
[38]T37 L23-24
[39]T41, L23-26
48 From the information before me, I consider the online article was an exaggeration of the business’ success, and was written in an attempt to attract clients.
Medical material
49 The plaintiff’s general practitioner, Dr Leon, has seen the plaintiff regularly since January 2014. In his medical report dated 23 March 2016, Dr Leon noted the plaintiff experienced constant low back pain which varied in intensity and was worse when sitting for over 45 minutes. He noted that the plaintiff had difficulty sleeping and that he awakens at least three times a night. He considered that the plaintiff was capable of working with the following restrictions:
· Lifting up to 5 kilograms;
· Driving up to four hours in one day with rest breaks every hour, up to two days a week, but not on consecutive days;
· Standing for up to one hour;
· Sitting for up to one hour;
· Walking for up to one hour;
· Typing for up to one hour.[40]
[40]PCB 57
50 Further, Dr Leon was of the view that the plaintiff should be restricted from performing the following duties:
“Repetitive bending, lifting, twisting or stooping; repetitive pushing, pulling or lifting; overhead activities; kneeling, squatting or crouching; and repetitively using steps or ladders.”[41]
[41]PCB 57
51 Dr Leon stated such restrictions would continue for the foreseeable future. He was of the view that the plaintiff is not fit to perform his pre-injury duties on a part-time or full-time basis in the foreseeable future.
52 The plaintiff’s surgeon, Professor Teddy, in a medical report dated 21 March 2016, reported that the plaintiff’s neurological deficits had resolved, but that his back pain persisted. He considered the plaintiff may require some form of spinal fixation in the future. Alternatively, he may be treated by means of a neuromodulation.[42]
[42]PCB 67
53 Professor Teddy was of the view that the plaintiff was incapacitated for pre-injury duties, but that he could return to full-time work in a sedentary capacity, provided numerous restrictions were met. Such restrictions included no bending, lifting, twisting, pushing, pulling, overhead activities, kneeling, squatting, prolonged sitting, standing or walking and no walking up inclines or down declines.[43]
[43]PCB 67
54 It is not apparent from the report as to when Professor Teddy last saw the plaintiff. He refers to an attendance in February 2015 at which time the plaintiff felt his condition had plateaued. Professor Teddy therefore had no history of the plaintiff’s attempted return to work in October to December 2015, and was not aware of the increased pain he experienced doing such work.
55 The plaintiff’s solicitors arranged for him to be examined by orthopaedic surgeon, Mr John O’Brien, in February 2016. Professor O’Brien concluded that the plaintiff was suffering chronic post-operative back and left leg pain. He considered his prognosis poor. He was of the opinion that he would be incapable of returning to his pre-injury duties and that he could not undertake employment which involved significant manual duties. Further, he commented that “the nature of the aggravating factors of this patient’s chronic pain makes it extremely difficult to consider suitable employment”.[44]
[44]PCB 89
56 He was of the view that if the plaintiff was to return to employment, it would need to be for limited hours and in a role where the physical activities were restricted.
57 The plaintiff’s solicitors also arranged for him to be examined by neurosurgeon, Dr Mohammed Awad. His report is dated 11 March 2016.[45] After examining the plaintiff, Dr Awad expressed an opinion that the plaintiff had the capacity to undertake extremely sedentary work several hours per day, several days per week. He felt that the plaintiff was unlikely to be able to work in a reliable consistent fashion given his back condition. However, the history given to Dr Awad was incomplete, in that he was not advised that the plaintiff had attempted to return to work by driving limousines in late 2015. Further, he reported that the plaintiff cannot sit for more than 10 or 15 minutes before he needs to stand. In circumstances where his history is incomplete and his sitting restrictions are incorrect, I place no weight on the opinion offered by Dr Awad.
[45]PCB 97-101
58 Finally, the plaintiff’s solicitors arranged for him to be examined by occupational physician, Dr Helen Sutcliffe. In her report dated 17 March 2016, she expressed an opinion that the plaintiff had no capacity to undertake suitable employment in the open market as a result of his injury.[46] She noted that in his attempt to work as a limousine driver, he required the ability to rest after one hour and could pace his activities at work over the shifts that he was working.
[46]PCB115
59 Dr Sutcliffe concluded that as a result of his limited capacity for standing, sitting and walking, she felt he had no capacity to undertake work in any realistic manner in a “productive, reliable and efficient manner to the satisfaction of an employer either on a full-time or part-time basis”.[47]
[47]PCB 115
60 The defendant relied upon only one report, that being from Mr Brendan Dooley, dated 14 September 2015.[48] Mr Dooley noted the plaintiff’s ongoing low back pain, and the psychological strain it had upon him. He commented that there is a possibility of fusion surgery of the lumbar spine involving a two-level procedure in the future, but that the outcome, in terms of improving pain and function, would be unpredictable.
[48]Exhibit 5
61 Mr Dooley was of the view that the plaintiff was likely to continue to suffer intermittent low back pain, with some leg pain. He felt that he could carry out light, physical work and clerical/administrative duties. However, he was of the opinion that the plaintiff could not be involved in regular lifting, bending and manoeuvring. He considered any return to suitable work would need to be done on a graduated basis. Mr Dooley saw the plaintiff before his attempted return to work in October to December 2015, and so does not comment on the difficulties the plaintiff reported from doing such work.
Credibility
62 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“…the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”[49]
[49](2010) 31 VR 1 at [12]
63 For most parts of his evidence, I accepted the plaintiff as being reliable and creditworthy.
64 I had some reservations as to his candour when cross-examined about the business he and his partner owned. I do not accept he could not remember if the promotional photograph had been taken for the business.[50] I also do not accept that he did not know where exactly his partner worked.[51] Despite these misgivings, I accept that the plaintiff did not work for the business.
[50]T40, L17-21
[51]T38, L2-8
65 The defendant showed surveillance film of the plaintiff in March 2016. It is footage of the plaintiff walking his dog, standing in a dog park and then going to a café with his partner and a friend. Whilst at the café, the plaintiff remained seated for just under 30 minutes.
66 The plaintiff stated that whilst seated at the café he felt he would have been stretching his legs.[52] I have re-watched the film and am unable to determine whether or not the plaintiff did stretch his legs. However nothing turns on this. The plaintiff’s activities on the film are consistent with his evidence in court, and what he told the doctors.
[52]T48, L2-3
Permanent
67 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and permanent. The authorities have defined the latter to mean “likely to last for the foreseeable future”.[53] I am satisfied that the plaintiff’s injuries and the consequences which flow are permanent. He has had a laminectomy performed. He takes pain killing medication on an ongoing basis. There is a possibility he may require a spinal fusion in the future, but there is no evidence that such a procedure would lead to an improvement in his condition.
[53]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34]
68 Having thus accepted that the injury is permanent, I must now consider whether the plaintiff’s back injury and impairment satisfy the requisite loss of earning capacity test.
Loss of earning capacity
69 To succeed in his application, the plaintiff has the onus of satisfying me that as at the date of hearing, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In assessing this, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
70 The definition is an objective test which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether the work is a reasonable distance from the plaintiff’s place of residence.[54]
[54]Barwon Spinners Pty Ltd & Ors v Podolak at [25] and [28]
71 In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
(a) the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b) the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.[55]
[55]s 134AB(38)(f)
72 In the three financial years before March 2011 incident, the plaintiff earned the following gross annual income:
· Financial year ending 30 June 2009: $47,060
· Financial year ending 30 June 2010: $44,281
· Financial year ending 30 June 2011: $51,195
73 Mr Curtain submitted that I should average these gross incomes out over the three year period. Mr Mighell submitted that the financial year ending 30 June 2011 most fairly reflected the plaintiff’s earning capacity. I agree with Mr Mighell. The figure from the 2011 financial year was the closest in time to the plaintiff’s injury and reflects what he was actually earning at that time.
74 Accepting this sum as his pre-injury earning capacity, the average weekly wage is therefore $984.55 gross per week. Applying the statutory test, I must be satisfied the plaintiff is incapable of earning no more than $590.72 per week, and that such a restriction on his earning capacity will be permanent.
75 All of the doctors agree that the plaintiff cannot return to his pre-injury work. The issue for me to determine is what the plaintiff is capable of earning in suitable employment.
76 Professor Teddy and Mr Dooley considered the plaintiff capable of performing full-time light or sedentary work, with a range of restrictions. Mr Dooley stated it would need to be graduated. Neither doctor saw the plaintiff after his attempted return to work. Further, neither commented on the impact which the plaintiff’s back pain would have upon his reliability.
77 Mr O’Brien and Dr Sutcliffe were both of the opinion the plaintiff would have difficulties returning to suitable employment. Mr O’Brien also said it would need to be for limited hours. Dr Sutcliffe referred to the plaintiff’s back pain making it difficult for him to undertake work in a realistic manner as it would be difficult for him to be productive, reliable and efficient.
78 I agree with Dr Sutcliffe. I accept that his back pain, and the restrictions which come with it, would make it very difficult for the plaintiff to obtain and hold down regular employment. I consider his pain levels, its interference with his sleep, and his need to sit and stand at regular intervals, would make it difficult for him to be a reliable employee.
79 Dr Leon has seen the plaintiff more than any other doctor. He saw the plaintiff during and after his attempted return to work. I am of the opinion that the restrictions which Dr Leon sets out in his report most fairly reflect what the plaintiff is capable of doing.
80 I accept the plaintiff’s evidence that when he worked as a limousine driver, his pain increased significantly and that he took up to 30 Nurofen or Panadeine tables each day to enable him to work.[56] He found getting in and out of the car very painful.[57] I also accept that he required frequent breaks during the day and that, at times, he would park in an area in Sunbury, close to the airport, where he would lie down in pain.[58]
[56]T49 L15-16
[57]T16 L21-23
[58]T50 L5-9
81 I accept that it is beyond his capacity to work fulltime as a driver. The week commencing 9 November 2015, in which he worked five days and earned $749.70, was not a fair reflection of his earning capacity, as it was unsustainable for him to work that much.
82 I accept that part-time work as a driver, with the restrictions identified by Dr Leon, are within his capacity and would constitute suitable employment. Dr Leon considered he could work four hours, two days per week. He could obtain such part-time work through other limousine companies, or working as a taxi driver, or an Uber driver.
83 It is unclear what he would earn in such part-time driving employment, but it would certainly be far less than $590 per week.
84 Mr Curtain also cross-examined the plaintiff about the possibility of him working as a waiter. The plaintiff believed he would not be able to do this.[59] Considering the restrictions identified by Dr Leon, that the plaintiff not be required to stand or walk for more than one hour, I do not consider waiting work to be suitable employment.
[59]T43 L21-29
85 In my view, any work the plaintiff might attempt in the future will be minimal. I note he has done some re-training courses, including one in occupational health and safety. However, given the restrictions identified by Dr Leon, and the constant pain the plaintiff suffers, I consider a few hours, on alternate weekdays, is as much work as he could do as a reliable employee.
86 In these circumstance, I am not satisfied the plaintiff has a capacity for suitable employment such that he would earn in excess of $590 per week. I am satisfied this is the position now, and this incapacity will remain for the future and be permanent. Accordingly, he has suffered the requisite loss of 40 per cent.
87 Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the ‘very considerable’ test.[60] Given my acceptance that the plaintiff’s injury restricts him to only part-time work, the pecuniary disadvantage to him is so great, that I consider his loss of earning capacity can be described as very considerable.
[60]s134AB(38)(c)
Orders
88 I am satisfied that the plaintiff suffers a serious injury to his lumbar spine, arising as a consequence of his employment with the defendant and the consequences are such that he should be granted leave to commence proceedings for pecuniary loss damages.
89 I shall make the consequent orders.
MCNAMARA v THE TRUSTEES FOR
ELIZABETH ANDREWS UNIT TRUST & ORS
APPENDIX A
| Week | Number of Jobs | Income |
| Week 1: Friday 9 October 2015 Saturday 10 October 2015 Sunday 11 October 2015 | 2 3 2 | $186.75 $200.25 $123.75 |
| Total: 3 days | 7 | $510.75 |
| Week 2: Tuesday 13 October 2015 Wednesday 14 October 2015 Thursday 15 October 2015 Friday 16 October 2015 | 1 2 5 2 | $79.20 $118.80 $206.10 $118.80 |
| Total : 4 days | 10 | $522.90 |
| Week 3: Thursday 22 October 2015 Friday 23 October 2015 | 4 3 | $172.35 $149.85 |
| Total: 2 days | 7 | $322.20 |
| Week 4: Wednesday 28 October 2015 Thursday 29 October 2015 Friday 30 October 2015 | 2 (1 cancel fee) 5 5 | $82.35 $227.70 $229.05 |
| Total: 3 days | 11 | $539.10 |
| Week 5: Saturday 7 November 2015 Sunday 8 November 2015 | 4 1 | $167.85 $56.25 |
| Total : 2 days | 5 | $224.10 |
| Week 6: Tuesday 10 November 2015 Wednesday 11 November 2015 Thursday 12 November 2015 Friday 13 November 2015 Saturday 14 November 2015 | 3 (1 cancel trip) 4 4 2 3 | $138.60 $181.35 $181.35 $79.20 $169.20 |
| Total : 5 days | 15 | $749.7 |
| Week 7: No work | ||
| Total: 0 days | $ Nil | |
| Week 8: Friday 27 November 2015 Saturday 28 November 2015 | 5 3 | $264.60 $128.70 |
| Total : 2 days | 8 | $393.30 |
| Week 9: Wednesday 2 December 2015 Thursday 3 December 2015 Friday 4 December 2015 | 3 3 4 | $131.85 $127.35 $23.35 |
| Total : 3 days | 10 | $282.55 |
| Week 10: Tuesday 8 December 2015 Wednesday 9 December 2015 Thursday 10 December 2015 | 4 3 2 | $169.20 $146.70 - $6.75 |
| Total : 3 days | 9 | $309.15 |
| TOTAL | 82 | $3853.75 |
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