Mills v VWA
[2020] VCC 1004
•10 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05361
| PAULINE MILLS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2020 | |
DATE OF JUDGMENT: | 10 July 2020 | |
CASE MAY BE CITED AS: | Mills v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1004 | |
REASONS FOR JUDGMENT
---
Subject:
Catchwords:
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:The Herald and Weekly Times Ltd v Jessop [2014] VSCA 292; De Bono v VWA [2019] VSCA 85
Judgment:
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Middleton QC with Mr D Seeman | Ryan Carlisle Thomas Lawyers |
| For the Defendant | Mr A Saunders | Minter Ellison |
HIS HONOUR:
Introduction
1 In her application, Pauline Mills seeks leave to start a proceeding for the recovery of damages arising out of or in the course of her employment with Gippsland Health Network Ltd. She asserts her injury satisfies paragraph (a) of the definition of “serious injury” in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). She applies in relation to pain and suffering damages and pecuniary loss damages. Since the defendant conceded the former at the start of the hearing before me, the application proceeded on the latter, focussing on the narrow issue of the level of Ms Mills’ earnings as a photographer. In fact, the defendant’s counsel helpfully defined the issue in his final submission[1] :
“On the plaintiff’s evidence, your Honour would not be in a position…to make an adequate finding about precisely what work she’s done and what precise money she has earned from that work, and in those circumstances it is my submission that the court could not be satisfied the plaintiff has satisfied her onus in respect of establishing the requisite 40 per cent loss.”
[1] Transcript at pp 54-55.
Circumstances
2 Ms Mills was born in 1971. She is married with six children, five of whom still live with her at home. After completing her secondary schooling, she started a Division I nursing course. Child bearing and rearing interrupted her studies. When she returned to study, it was in Division II nursing, which she completed. She started work in 2006, joined the West Gippsland Hospital in 2007 and, ultimately, with the defendant in August 2014. She worked as a community health nurse. By February 2015, she stopped working because of lower back pain.
3 In August 2015, an L5-S1 microdiscectomy was performed.
4 Her injury relates to the lower spine or back. Its nature was the subject of various opinions. First, there was imaging revealing discal damage at L3-4, L4-5 and L5-S1, a protrusion at L5-S1, compression of the L5 and S1 nerve roots and right foramen compromise.
5 Dr Vaughan diagnosed right lumbar radiculopathy, particularly at L5 and chronic back pain. Associate Professor Bittar diagnosed a prolapse of the L5-S1 disc and L5 radiculopathy causing lower back and right leg pain. Associate Professor Boffa diagnosed post-surgical discogenic low back pain without radiculopathy. Finally, the Medical Panel diagnosed the L5-S1 disc prolapse, surgically treated, without residual radiculopathy.
6 Before her injury, Ms Mills worked 45 hours each fortnight. She believes she was capable of working 38 hours a week before her injury. Why she did not work those hours was unexplained.
7 Her back pain leaves her bedridden sometimes. Recently, she spent three days in bed. Often, she uses a walking stick to assist with walking when she leaves her home.
8 From February 2016 to April 2019, Ms Mills managed to complete two courses in photography, gaining Certificates III and IV. To do so, she studied online for about 10 hours a week.
9 According to her son, Ethan Mills, these courses were suggested by him and his father as an activity “that she could put her mind to and cheer up”.[2] She also saw them in much the same light.
[2]Affidavit sworn 23 June 2020 at [15].
10 She has advertised her services as a photographer, mainly through Facebook. She also relies on recommendations or “word of mouth” as she puts it. Little paid work has come her way. However, she keeps poor records of her earnings. The figures she gave were estimates. From photography over the past five years, she estimates earning $2,000. Of that amount, $500 came from photographing a wedding in about March this year. Even the figure of $2,000 may be an overstatement because she shared the $500 with Ethan as he carried and set up the equipment because she cannot.
11 To explain this meagre amount, Ms Mills described her limitations as a professional photographer due to her impairment:[3]
“I would like to try to work as a freelance photographer moving forward however, I cannot see myself being able to do so as I would need to take my husband or son with me or hire someone. I require assistance to drive to and from shoots. I require assistance with carrying, setting up and re-positioning equipment. I struggle to set up scenes or move lighting equipment. I would struggle to manoeuvre props or subjects, such as children or babies in family shoots. I am unable to take photographs on some angles and require my son to take these for me. My son assists me with the editing after a shoot.”
[3]Affidavit sworn on 11 June 2020 at [39].
12 In his affidavit, Ethan Mills described the restrictions on his mother’s ability to photograph. It mirrors and expands upon her assessment. She is so limited, it is an exaggeration to describe what she does as a job. Even the fact of using a walking stick deters potential clients.
13 Although the defendant confined its attention to photography, for completeness, Ms Mills makes craft items and has sold some of them. Again, she estimates earning $500 over the last five years.
14 A vocational assessment by two consultants engaged by Recovre suggested three occupations as suitable for Ms Mills to consider if “she is deemed to have a current work capacity”.[4] The defendant chose not to explore these occupations with Ms Mills in cross-examination. She speaks of them in an affidavit and explains why they are unsuitable. Her reasons reflect indirectly on her capacity for work generally. As a ward clerk, she could not walk at the pace ward clerks walk. Nor could she carry files they carry or push trollies. As for a medical receptionist, she also rejects her ability to do that role for somewhat similar reasons. As for a pathology collector, she lacks the ability to stand or sit for long periods. Overall, she points to her unreliability as an employee by reiterating her occasional need to remain in bed through pain.
[4]Report dated 16 September 2019 at p 6.
15 There is unanimity among the medical practitioners about Ms Mills’ inability to return to work in any capacity and the permanency of that state (Dr Vaughan, Dr Kossmann, Professor Bittar, Associate Professor Boffa, Dr Kenna and Dr Doig). They are separately supported by Bill Radley, a psychologist and vocational assessor, who also considers she has no capacity to undertake any type of occupational retraining.[5]
[5]Report dated 19 February 2020.
Legal considerations
16 To establish the loss of earning capacity consequence, Ms Mills must establish:
(a) her loss of earning capacity consequence, when judged by comparison with other cases in the range of possible impairments or losses of a body function, is fairly described as being more than significant or marked and at least very considerable (the narrative test); and
(b) she suffered a loss of earning capacity of 40 per centum or more, measured as set out in s325(2)(f); and
(c) she would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.[6]
[6]De Bono v VWA [2019] VSCA 85 at [47].
Discussion
Credit
17 The defendant submits the evidence of Ms Mills, on affidavit and orally, is unsatisfactory as to her earnings as a photographer. The quality of her evidence should result in her failure to establish a serious injury regarding loss of earning capacity consequence.
18 Ms Mills’ first affidavit reads as though loss of earning capacity consequence was not part of her application. When she mentions her former employment, it reads as though that is a pain and suffering consequence:[7]
“I miss working. I loved my work and I enjoyed the people and helping the patients.”
[7]Affidavit sworn 20 June 2019 at [74].
19 However, the last paragraph of the affidavit exhibits copies of her taxation documents without saying anything else. I do not see the failure to mention her work as a photographer as impacting on her credit. Regarding loss of earning consequence, the affidavit is poorly structured and, without more, I would not attribute its structure to Ms Mills.
20 The inadequacy of her records is consistent with the patchiness of her work as a photographer. If the work was more regular, her records would have been better. For this hearing, she spoke of her attempt to reconstruct her earnings with the Victorian Drama League. The impression I formed of her evidence was that she would have loved to be a professional photographer but cannot. Her photography has been a mixture of paid and charitable work. For someone who keeps inadequate records of earnings, I would not criticise the accuracy of her estimations of earnings from photography or craft work.
21 Her histories to medical practitioners, including those comprising the Medical Panel, and the vocational specialists are lacking but are not patently wrong, as the defendant’s counsel submitted. Nor is she a witness of absolute credibility as her counsel submitted. Few witnesses fall into that sublime category. The weaknesses in her histories coupled with the absence of complete records do not cause me to conclude Ms Mills is an unreliable witness or worse.
22 It may be the gap between the completion of her Certificate IV course and the interview for the Recovre report was short, but Ms Mills had been doing some paid work before she completed her course. Again, the same observation applies to what she told the Medical Panel.
23 Ms Mills has been inaccurate. But her inaccuracy is of little moment. The truth of the matter is none of the medical experts say that she has any capacity for work. These experts were speaking within the confines of the legislation, paying explicit or implicit regard to the concept of “suitable employment”. She has a very marginal capacity for work.
Loss of earning capacity consequence
24 For the purposes of s325(2)(f), Ms Mills earned an annual amount of $32,012 before her injury, and for s325(2)(e), the 60 per cent figure is $370 per week or, annually, $19,219.
25 Her work in photography is a mixture of paid and unpaid work. The combination of the two is barely worth noticing. My inability to make precise findings of the amounts she has earned as a photographer is no impediment to my satisfaction as to her loss of earning capacity consequence in terms of a “serious injury” and in terms of s 325(2)(f) of the Act. If pressed to make a finding, I would adopt her estimations of $2,000 and $500 for both over the last five years or $500 per year.
26 Ms Mills satisfies the narrative test. Her impairment has caused an enormous reduction in her capacity for work, which is permanent.
27 Secondly, she satisfies the test posed by s325(2)(e) and (f) of the Act. The comparison is between $500 per year and $19,219. After the date of the hearing, she will continue permanently to have a loss of earning capacity productive of financial loss of 40 per centum or more.
28 The reliance upon Ms Mills’ asserted capacity for more work before the injury was unexplored at the hearing. I was referred to The Herald and Weekly Times Ltd v Jessop.[8] The defendant submits capacity to work greater hours is insufficient unless there is evidence of her willingness to do so. Certainly, the Court, in deciding Jessop’s case, pointed to her willingness to exercise her capacity to work extra hours if they were offered.[9] There is no evidence, direct or indirect, to establish her willingness to do so. However, in view of my earlier conclusion, it is unnecessary to explore this issue further.
[8][2014] VSCA 292.
[9]See [63] and [64].
Conclusion
29 I will grant leave to Ms Mills to commence a proceeding for recovery of damages for pain and suffering and pecuniary loss.
30 I will hear the parties on the question of costs.
0