Murphy v Aldi Foods Pty Ltd
[2015] VCC 1871
•18 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-02703
| DEBRA ANNE MURPHY | Plaintiff |
| v | |
| ALDI FOODS PTY TLD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 October 2015 | |
DATE OF JUDGMENT: | 18 December 2015 | |
CASE MAY BE CITED AS: | Murphy v Aldi Foods Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1871 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the cervical spine and left shoulder – pain and suffering and income earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave granted to the plaintiff to bring proceedings for pain and suffering and economic loss damages in relation to injury sustained at work with the defendant on 19 November 2007.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Nowicki Carbone |
| For the Defendant | Mr M Clarke | Wisewould Mahony |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant and, in particular, on 19 November 2007.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) and clause (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) a permanent serious impairment or loss of a body function;
…
(c)permanent severe mental or permanent severe behaviour disturbance of disorder.”
5 The body functions relied upon in this application in respect to clause (a) of the definition are the spine and the left shoulder. In respect to clause (c) of the definition, the mental and behavioural disturbance, the injury relied upon is psychiatric/psychological injury including, but not limited to, stress, anxiety and depression.
6
The plaintiff relied upon four affidavits, three sworn by the plaintiff on
29 January 2013, 18 March 2014 and 28 September 2015 and an affidavit of her husband, Mr Shane Murphy, sworn 5 October 2015. The plaintiff was cross-examined. Mr Murphy’s affidavit was unchallenged. Accordingly, I accept the evidence of Mr Murphy. I have not summarised the plaintiff’s affidavits and evidence, nor have I summarised her husband’s affidavit. However, I will refer to the evidence of the plaintiff and her husband in my reasoning. In addition, both parties relied upon medical reports and other material which was tendered in evidence. I have read all the tendered material.
The issues
7 Counsel for the defendant submitted that the consequences of the physical injury do not meet the “very considerable” threshold and the pecuniary loss test as set out in the Act. Secondly, the paragraph (c) consequences do not meet the “severe” threshold test. Thirdly, the plaintiff’s credit is in issue.
8 Counsel for the defendant submitted the plaintiff ought not be accepted as a witness of truth and that her lack of credit ultimately means her application with respect to pain and suffering and pecuniary loss must fail.
Relevant legal principles
9 The founding principles of law regarding serious injury applications are discussed in the many well-known case authorities.[1]
[1]See for instance Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 and Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592.
10 In relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:
(a)that at the date of the hearing, she has a loss of earning capacity of
40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;
(b)that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of
40 per cent or more; and
(c)that even with rehabilitation and retraining, she will sustain a loss of
40 per cent or more.
Video surveillance
11 The defendant included video surveillance of the plaintiff in the index to its Court Book. Counsel for the defendant conceded that there was a total of 91.5 hours of surveillance over many days.
12 The defendant’s counsel admitted that of the total 91.5 hours of surveillance a total of six minutes and sixteen seconds of footage was obtained. No video surveillance was shown. Nor was its absence explained. I infer that the surveillance did not assist the defendant’s case.
Credit
13 The plaintiff was cross-examined over an extended period. The plaintiff made concessions, namely, that she thought she could do some form of work. On occasions, the plaintiff volunteered evidence which did not respond to the question asked; she was directed to answer the question asked. I formed the view that this was due to the plaintiff’s inexperience with the Court process. I rely upon the plaintiff’s presentation in Court and the comments made by medical witnesses.
14 Dr Blombery described the plaintiff as genuine in her presentation.[2] Her general practitioner described the plaintiff as stoic and just getting on with her work,[3] which was an impression that Dr Snyman agreed with.[4] The plaintiff reported to Dr Snyman that she would love to work and that she would prefer to spend some of the day doing something more meaningful than “hanging around home”.[5]
[2]Plaintiff’s Court Book (“PCB”) 72V
[3]DCB 27
[4]DCB 38
[5]DCB 38
15 There was no suggestion by any medical witness that the plaintiff was exaggerating. All accepted that she had a physical injury. The issue for orthopaedic surgeons, Mr Simm and Mr Curtis, was whether it was currently work-related. Most accepted the plaintiff’s complaints of pain.
16 The general thrust of the defendant’s submission was that the evidence the plaintiff gave in cross-examination was such that I should conclude the plaintiff was prepared to lie for her own benefit, and I should not accept her evidence in the absence of corroboration. I take the view that the examples referred to by counsel for the defendant were isolated examples where, overall, her evidence was consistent and accepted by most medical practitioners. Accordingly, I accept the plaintiff was a witness of truth.
17 Counsel for the defendant raised a number of specific issues in respect to the plaintiff’s credit, namely:
· The plaintiff falsified employment history on her résumé;
· Certain comments attributed to the plaintiff by medical witnesses;
· The plaintiff failed to consult a neurosurgeon;
· The plaintiff was able to continue to work after the injury, with restrictions, until she resigned.
18 I was referred to the plaintiff’s résumé which she presented to the defendant when she applied for employment. The plaintiff agreed that she had overstated her past experience. I accept her evidence on that point. The plaintiff made this concession in Court. She explained that she was keen to apply for and obtain work. I accept this is not fatal to the plaintiff’s credit in respect to her present application before me.
19 The plaintiff was questioned about comments attributed to her in the medical reports. My view of the plaintiff’s evidence was that on occasions she gave inappropriate and unusual answers to certain lines of questioning in respect to the reports. However, I am mindful that in large part, she was being cross-examined about comments attributable to her by medical practitioners in reports, in some cases many years ago. Further, in view of the comments by medical witnesses that the plaintiff was genuine and stoic, I considered this form of questioning was unfair to the plaintiff.
20 In one example, Counsel for the defendant referred to two reports dated June 2009 and February 2010 from Mr Lynch, treating orthopaedic surgeon. The complaint was that the plaintiff failed to report to Mr Lynch her consumption of Nurofen Plus, and that she gave an incorrect history of how she felt for the purposes of avoiding seeing Mr Lynch further. I accept the plaintiff gave unusual and inappropriate answers to the questions asked. However, I accept the plaintiff could not reasonably recall in any detail what she was reporting to a doctor five or six years ago. Further, Dr Lynch was provided with a letter of referral from her general practitioner dated 15 December 2009 which provided a past history and her current medication. There was also no suggestion that Mr Lynch asked her what medication she was taking.
21 A further example relied upon by the defendant, was that on 23 May 2011, the plaintiff attended Dr Saka, general practitioner, complaining of pain in her right hand. The general practitioner requested an x-ray of the right hand. The plaintiff had no recollection of experiencing issues with her right hand. The plaintiff was cross-examined on the fact that the doctor recorded “uses computer a lot, pain worse with certain movements”. The plaintiff’s evidence was, at that time, she would have been using her computer to find a job or preparing a résumé. Her current evidence is that now she hardly uses a computer, she has not used it for months.[6]
[6]Transcript (“T”) 62, L2-22
22 A further example relied upon by counsel for the defendant, was a statement in a report dated November 2014 of Dr Snyman, occupational physician: “She agreed that walking is her ‘best friend’, and she can walk without any limitation.”[7] Dr Snyman further reported that “… she fills in the day with walks, doing puzzles – she used to read more but not anymore – and just the usual tasks required in running a relatively busy household”.[8]
[7]Defendant’s Court Book (“DCB”) 29
[8]DCB 29
23
The plaintiff was asked whether she could walk without any limitation. She said that she might have been able to at the time of the attendance upon
Dr Snyman. The plaintiff was asked whether the phrase “your best friend” meant that she was walking very regularly. She denied this. The plaintiff agreed she enjoyed going for walks, she always has, but she does not walk regularly. When asked whether she agreed that in November 2014 she could go on a walk without any limitation, the plaintiff replied “No, I might have been exaggerating”.[9] The plaintiff then agreed that what she told the doctor was not correct. Counsel for the defendant submitted that the plaintiff was prepared to resile from her earlier position to suit her case.
[9]T78, L2-3
24 I take the view that the statement “she can walk without any limitation” is vague and open-ended. I also accept the plaintiff’s evidence is that she recalled attending the doctor, but she did not recall much about the actual appointment. I accept the submission of Counsel for the plaintiff, that the questions asked of her about walking being her best friend do not lead anywhere in the end.
25 A further example was the plaintiff told Dr Sutcliffe that she experienced constant pain in the lower back, present since 2002. She commenced work with the defendant in June 2003. In cross-examination, she agreed she was diagnosed with sciatica in 2003 by her general practitioner after she commenced work with the defendant. She was asked whether the back pain was associated with that work. She replied she did not know, she was not a specialist.[10] In re-examination, the plaintiff said the pain came on through her work with the defendant and did not ever completely go away. Counsel for the defendant submitted this was evidence given by the plaintiff because she perceived it would assist her case. Her answer in re-examination was given in the context of a question about a record of back pain in 2010. Given the context of the question put to her, I accept there was no intention to mislead. I also note that in cross-examination she recognised she was not a specialist and impliedly deferred to the opinion of medical witnesses on this point.
[10]T88, L7-9
26
Counsel for the defendant was critical of the plaintiff’s failure to consult a neurosurgeon. The evidence was that the plaintiff was to be seen by
Mr D’Urso. After waiting some time to attend the appointment, she was informed that he did not see patients for work-related injuries. A further appointment was made with another neurosurgeon, but that appointment was not kept because one of the plaintiff’s parents had just died. I am aware that the plaintiff did not attend follow-up appointments with some of the treating practitioners.
27 Counsel for the defendant was critical of the fact that the plaintiff was able to continue to work on restricted duties for three years, then resigned. She has not returned to work. The plaintiff’s evidence is that after the injury, she was struggling with her restricted duties. She continued to work until she could no longer work. The plaintiff and her husband had purchased their first house around that time, which was based upon their combined income. I accept the plaintiff’s evidence on this point. Her evidence regarding her commitment to work was supported by the evidence of her general practitioner.[11]
[11]PCB 44
28 Overall, given my earlier findings that the plaintiff’s evidence was overall consistent and acceptable evidence, and in the absence of any suggestion by a medical witness that the plaintiff engaged in exaggerated behaviour, I consider my initial findings about the plaintiff’s credit were unchallenged.
Analysis of the evidence
Physical injuries
29 The majority of the current medical evidence is that the plaintiff suffered a physical injury which is work related and which was variously described as:
·“… chronic neck ache and left shoulder pain radiating down her left upper limb in sharp jabs which left her with numbness, constant dull ache and reduced power of her upper limb …”;[12]
[12]Dr Leow, general practitioner, PCB 49
·“Aggravation of underlying degenerative cervical and lumbar spine disease … with [a] likely developed Chronic Pain Syndrome … .”;[13]
[13]Mr Tai, orthopaedic surgeon, PCB 72B
·fibromyalgia or pain syndrome, which is a sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord and can be termed a central sensitisation with an organic basis;[14]
·fibromyalgia;[15]
·an onset of aggravation of degenerative change in the cervical spine and onset of left shoulder soft tissue injury with subacromial bursitis and aggravation of degenerative change in the left AC joint as a result of her work injury;[16]
·cervical spondylosis (neck spine degeneration), along with what can be described as Myofascial Pain Syndrome and some Shoulder Impingement Syndrome;[17] and
· on probability, the plaintiff suffered a soft tissue injury with structures about the neck and left shoulder giving rise to pain and that her employment, with the incident on 17 November 2007 was, on the balance of probability, a cause of soft tissue damage to structures about the cervical spine and left shoulder.[18]
[14]Dr Peter Blombery, consultant physician (vascular disease), PCB 72W
[15]Dr Lie-Teng Lim, treating rheumatologist, PCB 58
[16]Dr Helen Sutcliffe, occupational physician, PCB 72EE
[17]Dr Jurie Snyman, occupational physician, DCB 39
[18]Mr David Brownbill, consultant neurosurgeon, DCB 12F
30
The minority view was expressed by orthopaedic surgeons, Mr Curtis and
Mr Simm. The minority view was, in essence, that the plaintiff no longer suffers a work-related condition. She suffers an age-related degenerative condition.
31 I accept the current view of the majority is that the plaintiff has a physical injury which is work related and which involves a Myofascial Pain Syndrome spreading from the neck into the left shoulder. I am influenced by the body of views expressed by the rheumatologists, vascular surgeon and occupational physicians. Medical witnesses expressed different views on the nature and extent of the injury. Those medical witnesses with expertise in chronic pain/fibromyalgia/central sensitisation accepted that the plaintiff presents with that condition.
32 Most medical witnesses accept that the plaintiff’s prognosis for recovery is poor and there is unlikely to be any significant change in her level of disability impairment in the foreseeable future. Given that the plaintiff has been suffering since 2007, I accept that the condition is permanent.
Loss of earning capacity
33 In determining the plaintiff’s impairment, I must make the assessment as at the date of hearing. I will be assisted by the more recent medical opinions in this case. In respect to the medical evidence submitted on behalf of the plaintiff, this includes:
· Dr Yu Long Leow, general practitioner;
· Mr Kossmann, treating orthopaedic surgeon;
· Dr Lim, treating rheumatologist;
· Mr Thai, treating orthopaedic surgeon;
· Dr Blombery, vascular surgeon and medico-legal specialist; and
· Dr Sutcliffe, occupational physician.
34 In respect to the defendant’s medical evidence, it includes:
· Dr Curtis, orthopaedic surgeon;
· Mr Brownbill, consultant neurosurgeon;
· Mr Simm, orthopaedic surgeon; and
· Dr Snyman, occupational and environmental physician.
35 It was conceded by counsel for the defendant that the medical evidence is that the plaintiff cannot return to pre-injury employment. The issue is whether the plaintiff can engage in suitable alternative employment.
36 In relation to the medical evidence, I note Mr Kossmann and Dr Lim did not address employment. Dr Leow and Mr Thai did not address suitable employment, and do not assist on this point.
37 On the basis of the following medical evidence, I conclude that the plaintiff cannot engage in suitable employment.
38
I accept the plaintiff cannot engage in full-time suitable employment. I accept her capacity to work full-time is affected by her complaint of flare ups. This is consistent with the evidence of Dr Blombery. I further note the evidence of
Dr Sutcliffe, who says the plaintiff’s capacity is limited to protected work, which falls outside of the general open workforce.
39 Dr Blombery opined that the plaintiff has no capacity for any employment.
40 Dr Sutcliffe said the plaintiff has no capacity for unrestricted employment, either full-time or part-time. She said the plaintiff could undertake limited work, for two hours, three days per week, in retail work where unpacking and shelving is not required. This places her capacity for work outside the general open workforce, and she can only perform protected work such as provided by family, friends or disability networks. I accept that effectively equates to no capacity for the purposes of this application.
41 The plaintiff herself gave evidence that she believed she had some capacity for employment. However, the fact that a plaintiff believes she has capacity for employment does not equate to capacity under the statutory provisions of the Act.
42 The reports from the defendant’s medical witnesses were deficient in respect to suitable employment. None of the defendant’s witnesses addressed full-time suitable employment. As to part-time suitable employment, their reports were deficient. I will consider their reports in greater detail.
43 In April 2014, Mr Curtis said, on the basis of his physical examination, there are no major orthopaedic issues that require intervention, although he thought there would be other issues that would require addressing before the plaintiff could return to the workforce,[19] but did not say what those issues were. I find this evidence of little substantive assistance regarding the issue of suitable employment.
[19]DCB 9
44 In April 2014, Mr Brownbill said that from a physical neurosurgical point of view, the plaintiff would be capable of attempting a graded return to work[20], avoiding heavy lifting, forced cervical spine mobility, or holding her neck in a fixed position. However, he said any assessment of the plaintiff’s work capacity lay within other specialties in pain management medicine, rheumatology and psychiatry.[21] However, her overall clinical presentation indicated that, on probability, she would not be capable of any employment at that time. I find that Mr Brownbill gave an inconsistent and qualified view as to suitable employment. I do not accept the opinion expressed in his report justifies finding a capacity for suitable employment for this plaintiff.
[20]DCB 12f
[21]DCB 12f
45
In October 2014, Mr Simm reported there was a minimal influence on the plaintiff’s capacity for work as a result of the injury. Mr Simm was provided with a specific job description for a part-time sales professional (at Michael Hill jeweller), for 20 hours per week. He noted the physical demands of this particular job were not included; therefore, he was unable to make a specific comment. He said if the position did not involve heavy lifting, then she would be able to do the work.[22] He noted that Michael Hill is a jeweller and one would expect that objects and boxes of stock would be light.[23] I find that
Mr Simm expresses a qualified view as to the plaintiff’s ability to undertake the job at Michael Hill. Given the speculation as to the lifting requirements of the job, and the absence of evidence as to the physical demands of the job, I am not prepared to accept Mr Simm’s opinion in respect to the suitability of this job for the plaintiff.
[22]DCB 18
[23]DCB 18
46 In respect to the position of administration assistant (Omni Care), Mr Simm noted the particular job required a variety of tasks. He noted that computer literacy was required and he did not believe the plaintiff had the necessary qualifications for the position. He said if she was allowed to operate a computer at a limited level and for a short period of time, then the task would be within her physical capacity.[24]
[24]DCB 19
47 I take the view that Mr Simm provided an opinion that suggests the plaintiff might have some capacity for work, which is qualified or curtailed by her physical limitations, and her limitations with computers. I do not accept that the evidence from Mr Simm extends to show the plaintiff has a capacity for suitable employment at all, and particularly in the Michael Hill and Omni Care roles.
48 Dr Snyman examined the plaintiff in November 2014 and provided a supplementary report in 2015. In 2014, he noted the plaintiff had functioned at a relatively high level in the past.[25]
[25]DCB 38
49 Dr Snyman opined that the plaintiff was capable of returning to employment.[26] He did not discuss whether she could work part-time or full-time. He was of the view that, of the jobs mentioned, the part-time sales professional position working at Michael Hill seemed to be the most realistic option for a sustainable return to work.[27] Dr Snyman formed this view on the basis that a sales assistant role with Michael Hill avoids prolonged sitting, allows for frequent changes in posture and reduced working hours during ‘normal’ shopping or business hours. However, Dr Snyman’s opinion as to the Michael Hill job suffers from the same difficulty as Mr Simm; that is, speculation as to the physical demands of the role and, in particular, the lifting requirements.
[26]DCB 38
[27]DCB 39
50 In September 2015, Dr Snyman was provided with a Work Able Consulting Suitable Employment Report dated 10 September 2015. He was asked to consider whether the following positions were within the physical capabilities of the plaintiff:
·store manager (Epping);
·retail store manager (Keilor Downs); and
·retail store manager (Chadstone/Bundoora).
51 Dr Snyman considered that the options offered were within the plaintiff’s physical capacity. He said the usual association is that the more managerial the role, the less physical the demands. He noted the plaintiff seemed more drawn to a role with less confrontation, but as he was only considering the physical capabilities of the plaintiff, he had no justifiable reason to advise that the plaintiff does not have the physical capacity to perform the roles stated.
52 In respect to Dr Snyman’s report of September 2015, I turn to the comments made by Mr Donnelly in his supplementary vocational assessment.[28] That is, Dr Snyman assumes the Work Able report proposes that the plaintiff is suited to managerial and sales assistant jobs in certain chain stores. This assumption is founded on the inclusion of worksite assessments for a store manager, which incorporates the duties of a sales assistant. However, I accept the reasoning of Mr Donnelly, who says it is not the likely intention of the Work Able report to propose that the plaintiff is suited to a sales managerial role; rather Work Able are suggesting a sales assistant role for her. I accept Mr Donnelly’s reasoning on this point, as he says:
“This would seem more reasonable as [the plaintiff] has no sales experience and it would be highly unlikely that a Manager with no background in sales (let alone a particular product group) would be considered suitable.”[29]
[28]PCB 72XX
[29]PCB 72XX
53 In September 2015, Mr Donnelly, vocational consultant/director, met with the plaintiff. He obtained a history from the plaintiff and considered the medical reports and identified positions that were suitable for the plaintiff, had she not been injured at work; namely picker/packer, clerk and delivery driver. He provided a list of restrictions for the plaintiff. He indicated why he considered the physical requirements of those positions were not suitable and then considered the worker’s capabilities. He indicated why the plaintiff would not be suitable for those positions currently.
54 Mr Donnelly was provided with the Work Able Consulting Suitable Employment Report of September 2015 and the report of Dr Snyman dated 14 September. He considered each of the positions in the Work Able Consulting Suitable Employment Report, identified the work duties and considered whether duties were suitable for the plaintiff. Mr Donnelly concluded that none of the positions was suitable for the plaintiff. He said the plaintiff would be incapable of performing the tasks that were specifically designated in the job options put forward by the defendant. I accept the evidence of Mr Donnelly; his report is methodical in approach and well-reasoned. He expresses an unqualified view. It is supported by the evidence of Dr Blombery and Dr Sutcliffe.
55 In cross-examination, the plaintiff conceded that she had not taken any steps toward retraining. Neither Counsel addressed me on the issue of rehabilitation and training for the plaintiff. There was no suggestion or evidence that the defendant offered the plaintiff retraining or rehabilitation.
56 In view of the evidence as a whole, I accept the plaintiff has no capacity for pre-injury or suitable employment. It is not necessary to enter into an analysis of wage rates.
57 Given my findings based on the physical injury to the plaintiff, it is not necessary for me to further consider the claim for mental or behavioural disturbance or disorder.
58 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, for both pain and suffering and loss of earning capacity).[30]
[30]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
59
Given the medical evidence, I am satisfied the plaintiff cannot return to work. The plaintiff is aged fifty-one years. She has been out of the workforce for five years. The plaintiff reported to a number of medical witnesses her desire to return to the workforce. The plaintiff has performed heavy work. She
re-entered the workforce in 2003 after a gap of fifteen years when she was the primary carer for her children. In June 2003, she obtained employment with the defendant as a warehouse operator working in pick/packing. She was promoted to section leader. I accept she was proud of her work achievements.
60 I accept that the plaintiff’s inability to return to work represents a significant loss to this plaintiff, given her work history and what she reported to medical witnesses in respect to the importance of work. Given the length of time the injury has persisted and the medical evidence as to permanency, I am satisfied the plaintiff’s impairment is permanent.
61 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as “serious” within the Act when judged by comparison with other cases in the range. The plaintiff, therefore, satisfies the narrative test. In reaching the finding, I have made a comparison with other cases in the range of possible impairments.[31]
[31]Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [41]
62 In addition to satisfying the narrative test of loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity. Given the medical evidence of Dr Blombery and Dr Sutcliffe that the plaintiff has no capacity for work currently, or into the foreseeable future, as a result of her physical condition, I find the plaintiff is effectively out of the workforce for any employment. Accordingly, there is no need to go into the analysis of wage rates as I do not accept she has any residual capacity given the medical evidence.
63 I accept the plaintiff has complied with the requirements of paragraph (g) of s134AB(38) of the Act. Accordingly, I am satisfied the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
64 In view of the matters I have described, the plaintiff has discharged the onus with respect to her physical condition regarding her loss of earning capacity.
65 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
66 Accordingly, I propose to grant leave to the plaintiff to bring proceedings to recover damages for injury suffered over the course of her employment with the defendant after 20 October 1999.
67 In view my findings, it is not necessary for me to consider whether the psychological injury constitutes a “serious injury” under s134AB(37)(c).
68 I will hear the parties on costs.
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