Milner v Davies Collison Cave
[2015] VCC 739
•9 June 2015
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05372
| MAREE THERESE MILNER | Plaintiff |
| v | |
| DAVIES COLLISON CAVE | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 18 and 19 May 2015 | |
DATE OF JUDGMENT: | 9 June 2015 | |
CASE MAY BE CITED AS: | Milner v Davies Collison Cave | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 739 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the dominant right wrist – pain and suffering certificate conceded – loss of earning capacity in contest
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Giankos vSPC Ardmona Operations Limited (No 2) [2009] VCC 1461
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering damages and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr D J N Purcell | Winn Legal |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox Lawyers |
HIS HONOUR:
1 By Originating Motion dated 30 October 2014, the plaintiff seeks leave to bring proceedings for damages for personal injury sustained throughout the course of her employment with the defendant and in particular, on 27 June 2008.
2 The plaintiff seeks leave to bring her claim for pain and suffering and loss of earning capacity damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The injury sustained by the plaintiff is to her dominant right wrist.
3 At the outset of this application, Mr Middleton, on behalf of the defendant, conceded that the plaintiff be granted leave to seek damages for pain and suffering arising from the right wrist injury.
4 The remaining issue in this application is to determine whether the plaintiff be granted leave to bring proceedings to recover damages for loss of earning capacity arising from the injury to her dominant right wrist.
5 The evidence in this application was from the plaintiff. The plaintiff was cross-examined. No other witnesses were cross-examined in this case.
6 The plaintiff also tendered the following documentation in support of her application:
· Exhibit P1 – the Plaintiff’s Court Book (“PCB”), pages 2-99 inclusive.
7 The defendant tendered and relied upon the following documentation and exhibits:
· Exhibit D1 – DVD-surveillance film dated 12 June 2012.
· Exhibit D2 – the Defendant’s Court Book (“DCB”), pages 4, 5, 6, 7, 8 and 12 and pages 28-64 inclusive.
8 I have read all of the medical reports tendered in this case. I have not had the advantage of the medical opinions being tested by cross-examination.
The statutory scheme
9 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
10 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[1]
[1]Section 134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities.
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, that such a loss must be to the extent of 40 per cent more, both at the date of hearing and permanently.
(g) In conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in sub-section(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Supra
11 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and, in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
12 The plaintiff was born in 1959. She is now fifty-six years old. She is a married woman who lives with her husband at Lake Eppalock.[4] Her husband is a Veteran’s Affairs Pensioner. Prior to ceasing her work with the defendant, the plaintiff was the sole breadwinner in the family.
[4]PCB 2
13 The plaintiff has two grown up children in their thirties from her previous marriage. She has a stepson with her current husband.[5]
[5]PCB 2
14 The plaintiff has been educated to halfway through Form 5. Since that time, she has worked in a variety of legal firms in junior administrative and receptionist-type duties. In the late 1980s to the middle 1990s, she worked as a legal secretary, where she described her work as predominantly typing duties.
Injury with the Defendant
15 In 1996, the plaintiff commenced work with the defendant. In 1999, the plaintiff had pain symptoms in her right wrist whilst working with the defendant. The plaintiff was prescribed anti-inflammatory medication and given two weeks off work at that time. The plaintiff was able to return to work on light duties initially, and then continued her work as a legal secretary.[6]
[6]PCB 3
16 The plaintiff continued to work for the defendant. The plaintiff stated in her evidence, she would get twinges in her right wrist.[7] On occasions, the plaintiff would wear a right wrist support to help her with the symptoms. She had been told it was tendonitis in her wrist by her medical practitioners.
[7]Transcript 20, Lines 24-25
17 In August 2007, the plaintiff’s role with the defendant was changed so that she was working for a senior associate in the defendant firm. The senior associate was working seven days a week. The plaintiff was required to do his typing in the four days of her work.[8] Her work was for seven hours per day.[9] On occasions, she continued typing through her lunch hour to keep up with her workload. Sometimes, she would attend work early in order to type up the backlog of work which had accumulated.
[8]PCB 4
[9]Transcript 16, Lines 28-29
18 The plaintiff was struggling to keep up with this work regime and early in 2008, she complained to the partner of the defendant firm. Her duties were not changed and she was required to continue with the same workload. By July 2008, the symptoms in her right wrist were so severe, the plaintiff attended Dr Leong, her general practitioner.[10]
[10]PCB 4
Medical treatment for the wrist injury
19 Dr Leong certified the plaintiff to have two days off work. The plaintiff was then referred to Associate Professor Pennington, plastic surgeon. A CT scan of her right wrist was performed. On 22 August 2008, a bone scan was also performed. In the meantime, Professor Pennington prescribed a splint to be worn by the plaintiff.[11]
[11]PCB 4
20 Dr Leong then referred the plaintiff to Dr Clements, rheumatologist. On 9 September 2009, an MRI scan of the right wrist was performed. A subluxation of the inferior radioulnar joint was diagnosed. The plaintiff had steroid injections administered to her right wrist.[12]
[12]PCB 5
21 Throughout 2010, the plaintiff continued to work in the same capacity. She reduced her work pattern to three days a week to try and cope with the symptoms in her right wrist.
22 In February 2010, the plaintiff was referred to Mr Anthony Berger, hand and upper limb surgeon, for an assessment of her right wrist injury.
23 On 19 July 2010, Mr Berger performed an arthroscopy of the right wrist to repair an ulnocarpal abutment. This arthroscopy revealed marked attenuation of the scapholunate interosseous ligament with synovitis in the ulnar aspect of the wrist, and some stiffness of the triangular cartilage but no tears in the cartilage were evident.[13]
[13]PCB 34
24 On 11 October 2010, Mr Berger performed an ulnar shortening osteotomy on the plaintiff’s right wrist.[14]
[14]PCB 34
25 On 9 May 2011, the plaintiff had a further operation to reconstruct her right scapholunate ligament.[15]
[15]PCB 35
26 The plaintiff has had rehabilitation and treatment from a hand therapist but has not returned to work since that operation in May 2011.
27 The plaintiff continues to wear a splint on her right wrist under the instruction of Mr Berger.
28 The plaintiff continues to see her general practitioner for pain-relief medication and a psychologist for support.
29 The plaintiff takes over-the-counter analgesic medication for pain relief. She also takes Panadeine Forte, which is prescribed by her general practitioner when the pain is more severe. The plaintiff’s evidence was that she takes Panadeine Forte two to three times per week.
30 The plaintiff has been advised to have a right wrist fusion by Mr Berger. She has decided not to proceed with the operation and to continue with her current treatment regime of bracing, rest and medication. The plaintiff is well within her rights not to proceed to such serious surgery, especially given the fact that she has already endured three operations to her injured right wrist.
Credit of the Plaintiff
31 The plaintiff’s credit became an issue in this application. The defendant relied upon DVD-surveillance film of the plaintiff taken on 12 June 2012. It was submitted by the defendant that the surveillance film showed the plaintiff using her injured right wrist in a normal way. The film was of the plaintiff at a Tatts agency and a supermarket. The plaintiff was wearing a brace on her right wrist. To my observation, the activities engaged in by the plaintiff were not repetitive or heavy actions involving the use of her right wrist. The plaintiff could fill in a tatts docket or form, and she could access money from her purse. She was able to select items from the supermarket shelf. None of these uses of her right wrist are contrary to any evidence given by the plaintiff. These activities on their own do not show the plaintiff has a capacity to work full time in an administrative role. Further, the surveillance film does not assist me in assessing the plaintiff’s capacity to undertake suitable employment at this time.
32 I accept the plaintiff was an honest and straightforward witness. The plaintiff made appropriate concessions whilst being cross-examined. The plaintiff had demonstrated her willingness, more particularly described as a determination, to return to the workforce after her second wrist operation. This resulted in the symptoms of pain and disability (the black hand) which precipitated the third and final operation performed by Mr Berger.
33 I accept that the plaintiff is motivated to return to the workforce but is limited by her physical incapacity due to the injury to her right wrist. I am reinforced in this conclusion by the comments of the medical examiners from both sides of this dispute. In the words of Dr Kevin Fraser:
“The worker gave her history in an honest and straightforward fashion and there did not appear to be any significant overreaction on physical examination.”[16]
[16]DCB 39
34 I accept the plaintiff’s evidence that she gets “flare-ups” of pain two to three times a week. The plaintiff takes medication, including Panadeine Forte, for the pain on those occasions. I also accept her evidence, where she stated:
A:“It doesn’t have to be - it might not be for a specific event to cause it. I could just be actually just, you know, I could be just walking along and all of a sudden I just get that - it starts off with a great big stabbing - shooting stabbing pain right in the wrist, and then that’s it. That’s the sign to just - okay, because if I keep going it just becomes absolutely intolerable. That is when I have been told to take the painkiller, put it in the sleeve and just have complete rest, give it complete rest.
Q:If that happens does that happen at any particular time of the day or can it happen at any time of the day?‑‑‑
A:Any time of the day.
Q:If it happened in the morning, how long before your arm might be able to be used again?‑‑‑
A:It would be a day.
Q:You said that you put your arm in a sling at the times of these flare ups. Do you rest or are you able to go about normal activities, walking around and that sort of thing?‑‑‑
A:When it gets that bad I have to put it in a sling and I have to remain seated the whole time. I just can't move because movement just aggravates it even more.”[17]
[17]Transcript 61, Lines 2-22
35 I find that this level of pain and incapacity had a substantial impact on the plaintiff’s capacity to engage in suitable employment.
Medical opinions
36 The medical opinions in this application are unanimous that the plaintiff is unfit to perform her pre-injury duties of full-time legal secretary typing. The issue in this application is what residual capacity the plaintiff retains in her injured condition to engage in suitable employment and what earnings she can achieve as a result of that employment.
Dr Daile Kincaid, General Practitioner
37 Dr Kincaid is the plaintiff’s general practitioner. Dr Kincaid prepared three reports dated 5 December 2012, 2 July 2014 and 22 April 2015.
38 Initially, Dr Kincaid was optimistic about the plaintiff’s capacity to return to work that did not involve significant use of the right hand.
39 In later reports, the first dated 2 July 2014, Dr Kincaid states:
“Her current capacity for work is Left handed duties only. She has no capacity to work with the R wrist. …
In my opinion, she has no capacity for any light or modified duties involving the R wrist.”[18]
[18]PCB 29
40 In his report dated 22 April 2015, Dr Kincaid states:
“She is unable to perform her pre-injury duties. She finds it very difficult to perform routine activities of daily living with her dominant R hand and is always needing to make accommodation for her pain and loss of function. She is not able to type, or write with her R hand effectively, she is not able to handle any repetitive activity with her R hand and finds it difficult to lift/manage more than 1-2 kgs with the R hand/wrist.”[19]
[19]PCB 31
41 The defendant did not cross-examine the general practitioner. In the last report, Dr Kincaid has prescribed pain relief in the form of Panadeine Forte, 30 milligrams, one to two twice per day. Dr Kincaid clearly states the plaintiff cannot perform her pre-injury duties. The plaintiff is effectively a left-handed non-dominant worker with legal office experience.
Mr Anthony Berger, Hand Surgeon
42 Mr Anthony Berger is the plaintiff’s treating surgeon. The plaintiff expressed confidence and trust in Mr Berger as her treating surgeon.
43 Mr Berger prepared a total of six medical reports for this application dated 25 January 2012, 5 December 2012, 13 December 2012, 24 March 2014, 16 April 2015 and 6 May 2015.
44 Mr Berger has performed all three of the operations on the plaintiff’s right wrist.
45 In his most recent reports in 2015, the opinion of Mr Berger was expressed in the following terms:
46 In his report dated 16 April 2015, Mr Berger states:
“I believe as a result of this injury Mrs Milner will have limited activities for repetitive movement of her right hand. Finger movement and light weight clerical activities will be quite possible however Mrs Milner will have limited stamina with respect to that activity. She will have reasonable ability to make notes and receive and take telephone calls and record appointments. She will have significant difficulties with heavy and repetitive lifting, gripping, opening files and manipulating large files and in particular general office tasks that require any lifting and gripping with her right hand.”[20]
[20]PCB 39
47 In his most recent report dated 6 May 2015, Mr Berger states:
“I believe Mrs Milner is capable of performing light, non-repetitive clerical tasks for approximately four hours per day. These would need to be self-paced.”[21]
[21]PCB 41
48 The defendant relied on Mr Berger’s opinion to submit the plaintiff could work 20 hours per week in alternative administrative employment. Mr Berger however, went on to place a caveat on the plaintiff’s work capacity, expressed in his report dated 6 May 2015 in the following way:
“I believe Mrs Milner needs to avoid any heavy and repetitive lifting and gripping and in particular lifting anything heavier than one or two kilograms with her right wrist. It is difficult to predict with accuracy what weight Mrs Milner is capable of lifting as this may vary from day to day. With time Mrs Milner’s work capacity may improve with possible potential to increase her hours if her pains remain under control.”[22]
[22]PCB 41
49 The plaintiff agreed she may be able to perform a part-time job for four hours per day but it would depend on what the work was and whether the time of work could be split up. I accept the plaintiff has made a reasonable concession about her retained work capacity but the hours of work and the pattern of work will be governed by her pain control.
Dr Dominic Yong, Specialist Occupational Physician
50 Dr Yong prepared a report dated 17 April 2013. This report is now two years old.
51 In that report, Dr Yong stated:
“Taking into account the following factors:
● Current diagnosis.
● Current functional capacity.
● Current clinical progress since the onset of the condition and since the operation in 2011.
Ms Milner does not have a current capacity for work.
Therefore she does not have a current capacity to perform her pre-injury duties and hours.
…
4.Is Ms Milner medically fit to perform the employment duties required of a part-time Business Names Clerk? (Please refer to the enclosed Position Description).
As described above Ms Milner does not have a current work capacity due to the underlying diagnosis, reduction in functional capacity and clinical course.”[23]
[23]PCB 75.5
52 This opinion is somewhat dated. The condition and symptom of the plaintiff’s right wrist have not improved since that examination and consequently, Mr Yong’s opinion may be unchanged. It is unfortunate that an updated report from this occupational physician was not available for my consideration given the opinions of Mr Berger and Mr Fraser.
53 Dr Yong finalised his report by stating:
“Thus it is unlikely based on her clinical course that she will have a return to her functional capacity which will allow her to do the following:
● Repeated typing tasks.
● Repeated use of the right hand such as gripping tasks.
Thus it is unlikely she will be able to return back to the legal assistant role in the future.”[24]
[24]PCB 75.6
54 I accept that Dr Yong’s opinion is supportive of the conclusion the plaintiff cannot return to her pre-injury employment. The residual work capacity of the plaintiff was not finally assessed by him in relation to administrative roles or other similar type work.
Dr Janaka Seneviratne, Neurologist and Clinical Neurophysiologist
55 The plaintiff was examined on behalf of the defendant’s insurer for medico-legal purposes. Dr Seneviratne prepared a report dated 14 May 2014.
56 In his report dated 14 May 2014,[25] Dr Seneviratne stated:
“… In my opinion, she has capacity to engage in modified pre-injury duties with restrictions on repetitive movements of the right hand and working for prolonged periods of time and restrictions on lifting weights not more than 1kg in weight on the right side. Initially working 3 hours a day, 3 days a week would be appropriate. The workload can be gradually increased depending on the outcome. In my opinion, she is not likely to get back to pre-injury duties with time.”[26]
[25]PCB 76
[26]PCB 78
57 In May of last year, Dr Seneviratne’s opinion was that the plaintiff was fit for alternative duties of nine hours per week. Dr Seneviratne was of the opinion the plaintiff’s prognosis was poor and that she would have her current symptoms for the long term.
Dr Clayton Thomas, Consultant in Rehabilitation and Pain Medicine
58 Dr Thomas examined the plaintiff for the purpose of medico-legal reporting on this application. Dr Thomas examined the plaintiff on 20 October 2014 and provided a report dated 23 October 2014.
59 Dr Thomas’ prognosis was the plaintiff would suffer ongoing pain and disability affecting the right wrist and hand. He thought the plaintiff had a significant burden of disability as a result of her right wrist injury.
60 On the pivotal question of the plaintiff’s capacity to work at the current time, in his report dated 23 October 2014, Dr Thomas stated:
“She does not have capacity to perform preinjury work duties. The nature of her incapacity is quite substantial here. She was [a] typist. She is 55. She is right upper limb dominant. The right hand [is] affected. She does not have the capacity to perform anything that is repetitive. She has poor endurance of the right hand and activity aggravates the right hand problem.”[27]
[27]PCB 85.3
61 It is clear that from a plain reading of Dr Thomas’ report, that the plaintiff has a very limited capacity for suitable employment as a result of her right wrist injury.
Mr Robin Williams, Orthopaedic Surgeon
62 Mr Williams prepared a report dated 1 March 2012. In that report, he succinctly opined that the plaintiff had no current work capacity in suitable employment as he understood those terms in the Accident Compensation Act setting[28].
[28]PCB 93
Dr David Ho, Occupational Heath Consultant
63 Dr Ho examined the plaintiff on behalf of the defendant. He prepared two reports dated 26 September 2012 and 27 October 2012.
64 Dr Ho’s opinion was the plaintiff could not return to pre-injury duties. Dr Ho’s opinion is set out in his report dated 26 September 2012 as follows:
“In my opinion she is not able to return to her pre injury duties and hours.
… Ms Milner is currently able to return to work but on limited capacity on suitable selected duties with medical restrictions as indicated above on a graduated return to work plan.”[29]
[29]DCB 34
65 In his supplementary report dated 27 October 2012, Dr Ho expanded on his medical restrictions for a limited capacity to return to work as follows:
“After perusing my report and taking into account her right wrist condition I believe suitable duties must observe the following medical restrictions:
- Avoid heavy lifting in excess of 1kg with her right hand;
- Avoid fast repetitive and excessive use of her right hand;
- Avoid constant use of her right hand.
In my opinion she should work at her own pace with intermittent use of her right hand preferably initially in a supporting role and a very slow gradual increasing use of her right hand. Ms Milner is a very experienced legal secretary and subsequent paralegal assistant. At the time of my examination she remains positive and motivated to return to work in some capacity.”[30]
[30]DCB 36-37
66 I accept Dr Ho’s opinion that the plaintiff does have a capacity to return to suitable employment; however, despite the plaintiff’s positive attitude, she is severely limited due to the restrictions set down by him.
Dr Kevin Fraser, Rheumatologist
67 Dr Fraser examined the plaintiff on behalf of the defendant for the purposes of medico-legal reporting. Dr Fraser prepared two reports dated 22 April 2015 and 24 April 2015.
68 Dr Fraser’s opinion about the plaintiff’s work capacity is set out in his report dated 22 April 2015 as follows:
“… she is fit for at least part-time suitable employment, not requiring prolonged typing or any other rapidly repetitive use of the hand or anything of a forceful nature and which can be done whilst wearing a working splint. Within the bounds of such restrictions, I believe that the employment options identified in the NES Vocational Assessment Report of 22 August 2012 are suitable.”[31]
[31]DCB 40
69 In a supplementary report dated 24 April 2015, Dr Fraser stated:
“… she is certainly capable of making and answering telephone calls, arranging and confirming appointments, assisting with client enquiries, filing letters and documents on legal files and removing and placing files in filing cabinets, attending meetings and undertaking general legal assistant work. I believe that she is also capable of limited typing. I would suggest that such duties would be more appropriate on a part-time basis, say four hours per day.
As well, I believe that she is fit to distribute mail and to do photocopying in a law firm on a full-time basis.”[32]
[32]DCB 41-42
70 Dr Fraser and Mr Berger both say that the plaintiff has a capacity to perform four hours of work with restrictions. The return to work is to be graduated. Dr Seneviratne, Dr Thomas and Dr Kincaid are less optimistic about the plaintiff’s prospects of returning to suitable employment.
71 The plaintiff’s evidence now is that she would be unable to work. I accept that her motivation to work from 2012 to the present time has deteriorated in response to the long experience of pain and disability over the intervening three years.
Loss of earning capacity
72 In order to establish that the plaintiff be given leave to bring proceedings in respect of a loss of earning capacity, she must establish that:
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of the hearing, the relevant loss of earning capacity will continue permanently: s134AB(38)(e)(ii).
73 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(c) “without injury” earnings; and
(d) “after injury” earnings.
74 The former must be calculated by reference to the six-year period specified in s134AB(38)(f). These earnings consist of a gross income expressed at an annual rate that the worker was earning, or was capable of earning from personal exertion, or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
75 The plaintiff has the onus of proving that she has suffered a 40 per cent loss of earning capacity as a result of the injury in the course of her employment and that such loss is for the foreseeable future.
76 The parties have agreed that the “without injury” earnings are $48,000 gross per annum. For the plaintiff to succeed in an application for a serious injury certificate based on loss of earning capacity, she must prove her current work capacity in suitable employment would succeed in an income of less than $28,800 gross per annum. In round figures, this equates to $554.00 gross per week.
77 After a consideration of all of the evidence, the maximum amount of time the plaintiff could work in alternative suitable employment would be 20 hours per week. If the enquiry clerk role could be performed within the medical restrictions laid out by all the medical opinions referred to earlier in these Reasons, then it is the highest paid level the plaintiff could achieve from the Workstream jobs. These jobs are set out in the Defendant’s Court Book at page 51.
78 In relation to the enquiry clerk role, the rate for 38 hours per week is $965.00 gross per week, or $25.40 gross per hour. A calculation of the gross wages for 20 hours as an enquiry clerk would achieve a weekly gross income of $507.90, or $26,410.00 gross per annum.
79 I conclude that even if the plaintiff was able to achieve 20 hours’ part-time work as an enquiry clerk, she would still have suffered a loss of earning capacity of 40 per cent or more from her “without injury” earnings capacity.
80 Further, I do not accept the plaintiff has the capacity to work 20 hours per week due to the injury to her right wrist. She is willing and has proven her willingness to work in the past but realistically, she is now unable to work due to her pain and disability from her right wrist injury.
Giankos’ Case
81 I do not have to decide the issues raised by Giankos’ Case[33] as to which party has the onus, evidentiary or otherwise, to prove whether there is a “real” job for the plaintiff. For the purposes of this decision, I have assumed that given the plaintiff has now moved closer to Bendigo, some 20 minutes away, then there is a higher probability that there would be a part-time enquiry clerk job for her to perform. The plaintiff would still prove a loss of income earning capacity of 40 per cent or more based on my findings in respect of her ability to work.
[33]Giankos vSPC Ardmona Operations Limited (No 2) [2009] VCC 1461
Conclusion
82 Consistent with the defendant’s concession at the commencement of the proceedings, I grant the plaintiff leave to commence proceedings for the recovery of damages for pain and suffering in respect of the injury to her right wrist sustained in the course of her employment with the defendant.
83 For the reasons I have previously set out, I grant the plaintiff leave to commence proceedings for the recovery of damages for loss of earning capacity in respect of her injury to her right wrist sustained in the course of her employment with the defendant.
84 I will hear the parties on costs.
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