Neal v Victorian WorkCover Authority
[2020] VCC 1053
•6 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03656
| WILLIAM ALBERT NEAL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 21 January 2020 | |
DATE OF JUDGMENT: | 6 February 2020 | |
CASE MAY BE CITED AS: | Neal v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1053 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the right shoulder – concession that the pain and suffering consequences of the impairment of the function of the right shoulder are “serious” – whether the plaintiff retained a residual capacity which he can exercise in suitable employment – jobs proposed as suitable employment – analysis of those jobs.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Judgement:The plaintiff has leave to bring a proceeding to recover damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Mr A Saunders | Maurice Blackburn |
| For the Defendant | Mr S Smith QC with Ms K D Manning | Wisewould Mahony |
HIS HONOUR:
The application
1 The plaintiff suffered injury to his right shoulder on 26 October 2015 at the workplace of his employer, Diamond Valley Pork Pty Ltd (“the employer”). He was employed by the employer as a slaughterman. He slipped on a landing of a set of stairs. He attempted to brace himself as he lost his footing, jarring his right shoulder as he did so.
2 The defendant conceded that the plaintiff’s pain and suffering consequences are serious, but not his claimed loss of earning capacity consequences.
3 The issues which the parties concentrated upon were, firstly, whether the plaintiff has a retained residual capacity which he can exercise in suitable employment, and, secondly, if he does have a retained residual capacity, whether he can exercise that in a number of types of employment which the defendant contended constituted “suitable employment”.
The medical evidence
4 The plaintiff first consulted Dr Peter Lewis, general practitioner. He referred the plaintiff to have an MRI scan, and otherwise provided him with conservative treatment which failed to provide the plaintiff with any real relief from the symptoms he was suffering. He subsequently referred the plaintiff to Mr Ash Chehata, orthopaedic surgeon. He first saw the plaintiff on 24 November 2015.
5 Mr Chehata diagnosed a massive disruption of the rotator cuff tendons and tearing of the biceps in the presence of degenerative changes across the glenohumeral joint. He operated on the plaintiff on 18 December 2015. At operation, he observed significant rotator cuff tendon tearing with a massive rotator cuff tendon repair using four anchors. He also repaired the biceps, removed spurs, and undertook an acromioclavicular joint resection.
6 The initial operation was not the end of Mr Chehata’s involvement in the plaintiff’s treatment. Despite physiotherapy treatment to return the plaintiff to better right shoulder function, the plaintiff experienced increasing pain. On 13 October 2016, Mr Chehata performed a synovectomy and hydrodilatation. The plaintiff suffered a post procedure complication. There was ooze coming from the procedure wound. The plaintiff experienced increasing pain, and an increased temperature. Mr Chehata interpreted those symptoms as being consistent with potential septic arthritis, which was later confirmed. Subsequently, Mr Chehata performed two further washouts and synovectomies of the plaintiff’s right shoulder. He last treated the plaintiff in March 2017.
7 In addition to the treatment provided by Dr Chehata, the plaintiff has had osteopathic treatment. He has been prescribed painkilling medication. At present, he is prescribed Inza 500, Endep and Zoloft to treat his right shoulder symptoms.
The Plaintiff’s case
The plaintiff suffered a number of pain and suffering consequences which are relevant to an understanding of the nature, extent and gravity of the impairment of the function of his right shoulder. A summary of those consequences are as follows:
·Constant aching-type pain in the right shoulder which radiates into his neck.
·Increased pain when engaged in activities, such as lifting his right arm up to shoulder height.
·Stiffness in the right arm, making it difficult to lift it above shoulder height without the experience of significant pain.
·Worsening pain on repetitive right arm and shoulder activity.
·Difficulty lifting, pushing and pulling using his right arm.
·Interference with sleep, with a reduction in the hours of restful sleep.
·Some interference with driving a car when looking to the right.
·Difficulty chopping firewood.
·Difficulty enjoying fishing, and limitation on the type of boat he can use.
·The need for medication to treat pain.
8 The plaintiff continued working for about one month. He was then absent from his employment with the employer until 3 March 2017. He returned to work on modified duties. He increased his hours up to 30 hours per week over a nine-month period. The duties he performed varied between doing trimming work about half of the time, and other tasks, and also relieving other workers during their toilet breaks. His work was performed in a workplace where the temperature was as low as 8 degrees.
9 The trimming work involved pig carcasses arriving at the point where the plaintiff stood. The carcasses were on an overhead conveyor. He would use a knife in his right hand to make a cut to cheeks of the carcass. He would pull at the cheek with his left hand, and then make a final cut to remove it. He said the cheeks weighed very little. He would ascend a stand and cut the flanks of the carcass and remove its testicles using a knife in his right hand. Whichever task he undertook, the region of the carcass to which he applied the knife would be at about chest height.
10 The plaintiff described the trimming work as repetitive. He estimated that when cutting the cheeks of the carcasses he might do four hundred cuts in an hour. The plaintiff was the only worker doing the trimming work of the cheeks of the carcasses, and the other trimming work. He continued that work until 14 December 2018, when his modified duties were withdrawn and his employment was terminated.
11 In late 2018, the plaintiff applied for and obtained a qualification in traffic control. He was referred to the course by the WorkCover Authority. He found doing what he described as the “paperwork” so difficult that he could not complete the written part of the course. He eventually obtained the assistance of a man from the relevant union. That man was a friend of the plaintiff’s son. He assisted him in doing the written work, which enabled the plaintiff to obtain the qualification. He applied for a number of jobs. He applied for work with the Australian Pork Company. He obtained an interview. He said he did not believe he could do the work in the job he applied for. He also applied for jobs in traffic control. He said he did not believe he could do that sort of work. He failed to obtain any alternative work. He has remained out of work since he last worked with the employer.
12 The plaintiff submitted that given the nature, extent and gravity of the impairment of the function of his right shoulder, his age and his poor literacy and numeracy skills, that he is effectively incapacitated for any suitable employment. He relied upon the evidence of Mr Chehata and Mr Christopher Pullen, orthopaedic surgeon, who were essentially of that opinion.
13 I have referred to Mr Chehata’s diagnosis and findings at operation. I will now refer to parts of his diagnosis and opinions on which the plaintiff relies.
14 In relation to the physical restrictions resulting from the impairment of the function of the plaintiff’s right shoulder, Mr Chehata said:
“This has affected his ability to push, pull and lift above the shoulder, as well as below shoulder height causing progressive and worsening pain in the right glenohumeral joint. This is a progressive feature and although Mr Neal is highly motivated to remain employed in both modified and a light duty capacity, obviously this will affect his long-term mobility for employment.”[1]
[1]Plaintiff’s Court Book (“PCB”) 36
15 In relation to whether the plaintiff could perform his pre-injury duties as a slaughterman, he said that he would be clearly unable to perform those duties. In relation to a return to any form of employment, he then said:
“Yes, considering the massive rotator cuff tearing, coupled with degenerative changes in the glenohumeral joint and progressive septic arthritis, this is likely to preclude him from returning to any form of pre injury employment and the overhead activities, coupled with a reduction in hours and necessity for modified duties will be likely to occur in the foreseeable future.”[2]
[2]PCB 36
16 In relation to future treatment, Mr Chehata then said:
“Future treatment regimes may require a further arthroscopic synovectomy and wash out, and the potential for shoulder arthroplasty. In some terms this is almost contraindicated due to the subsequent bacterial septic arthritis. Clearly, any joint replacement surgery would ideally be avoided and there may be a case of literally accepting the degenerative changes with significant activity modification.”
17 In relation to prognosis, Mr Chehata then said:
“His prognosis is poor with progressive degenerative change likely to occur at the glenohumeral joint, secondary to the massive rotator cuff tear, coupled with subsequent septic arthritis of the right shoulder.”[3]
[3]PCB 37
18 Mr Pullen, orthopaedic surgeon, examined the plaintiff on a medico-legal basis on 18 November 2019. His opinion is very much the same as the opinion expressed by Dr Chehata.
19 In relation to diagnosis, Mr Pullen was of the opinion that the plaintiff had suffered a right shoulder greater tuberosity fracture, rotator cuff and glenoid labrum tear, post-surgical adhesive capsulitis and septic arthritis.
20 In relation to a prognosis, Mr Pullen then said:
“The prognosis for Mr Neal’s right shoulder condition is poor. [M]r Neal sustained a right shoulder greater tuberosity fracture, rotator cuff and glenoid labrum tears following as a result of his injury at work on 26 October 2015 whilst in the employ of Diamond Valley Pork. Despite multiple shoulder surgeries and non-operative treatments including analgesics, non-steroidal anti-inflammatory medications, hydrodilatation and physiotherapy he has persistent shoulder symptoms. Mr Neal’s right shoulder problems have been further complicated by the development of post-operative adhesive capsulitis and septic arthritis. As a result, he will have persistent difficulties with right shoulder pain, weakness and restricted movement for the foreseeable future.
Given the recalcitrant nature of Mr Neal’s shoulder symptoms he may benefit from a consultation with a pain management consultant. It is likely that Mr Neal’s shoulder condition will deteriorate further with time and he will eventually require total shoulder replacement surgery.”[4]
[4]PCB 49
21 In relation to the plaintiff’s capacity to perform suitable employment, Mr Pullen considered that the plaintiff was precluded from engaging in any such employment for the foreseeable future. It is important to note here that Mr Pullen was aware of the opinion of Dr Joseph Slesenger, specialist occupational physician, in which he considered that the plaintiff did have a capacity for at least two types of suitable employment. It is clear that he did not agree with the opinion expressed by Dr Slesenger as at July 2019, that the plaintiff was fit to return to any employment.
22 Mr Pullen was asked a number of questions relevant to future treatment, prospects of deterioration in the condition of the plaintiff’s right shoulder and a prognosis. In summary, he considered that the plaintiff would suffer from progressive right shoulder post-traumatic arthritis in the future, requiring total shoulder replacement surgery. He also considered that the plaintiff would have persistent difficulties with right shoulder pain, weakness and restricted movement for the foreseeable future.
23 The plaintiff submitted that, based upon the opinions of Mr Chehata and Mr Pullen, I should be satisfied that the nature, extent and gravity of the impairment of the function of the plaintiff’s right shoulder is so serious that there is realistically no prospect that the plaintiff has a residual capacity which he can exercise in any suitable employment, and certainly not the types of suitable employment identified by Dr Slesenger. Furthermore, the plaintiff submitted that I could comfortably reach that conclusion before considering the other impediments to the plaintiff performing any suitable employment, namely, his age, his education and training, and his literacy and numeracy. The defendant submitted that I should not accept the opinions of Mr Chehata and Mr Pullen for a number of reasons.
The Defendant’s case
24 The defendant submitted that the fact that the plaintiff was able to return to work and undertake repetitive trimming work in very cold conditions, pointed to the plaintiff having a capacity to perform work at 30 hours per week without the need for any work restrictions. It pointed to the plaintiff’s concession that if he had not been terminated, he would have been able to continue working for the employer, undertaking the trimming and other duties he was assigned. Therefore, the plaintiff had the residual capacity, from the date of his termination, which he can exercise in suitable employment at those hours undertaking similar duties.
25 The defendant showed film taken of the plaintiff on 1 and 2 July 2019. The film taken on 1 July 2019 commenced at 13:51 hours and ceased at 14:41 hours. It showed very little, and nothing on which the defendant relied. The film taken on 2 July 2019 commenced at 10:28 hours and ceased at about 10:40 hours. It showed the plaintiff at a “do-it-yourself” carwash. He drove his utility into a washing bay. The following is a summary of what the film showed:
·10:28 hours – the plaintiff used a high-pressure hose held in his right hand to hose down his vehicle. He continued that activity until about 10:30 hours.
·10:30 hours – the plaintiff took hold of a shaft to which a brush was attached. He held the base of the brush in his right hand on the top of the brush in his left hand. He ran the brush over the panels of his vehicle and the tyres. He continued that activity until about 10:33 hours.
·10:33 hours – the plaintiff put the brush down and resumed using the high-pressure hose held in his right hand to hose down his vehicle. He continued that activity until about 10:40 hours.
26 Under cross-examination, the plaintiff agreed that he was the person shown in the film and that he was able to use the high-pressure hose and the brush without any observable difficulty. He said that he held the hose and the brush using his right hand because he is right handed. He said that what was shown in the video is consistent with what he is capable of in daily activity.
27 Under further cross-examination, the defendant challenged the plaintiff’s evidence that, on the one hand he said that his right shoulder was improving while he was working in his return to work with the employer, but after ceasing work, he experienced deterioration in his right shoulder. He was taken to his affidavits for the purpose of the defendant demonstrating to him that nowhere in his affidavits did he say that he was experiencing deterioration in his right shoulder.
28 It was the aggregate of the foregoing, and some other aspects of cross-examination which I will turn to shortly, which the defendant submitted should persuade me that the plaintiff has a residual capacity which he can exercise to perform at least 30 hours of repetitive work, consistent with what he was doing on his return to work, and consistent with what he was doing when washing his vehicle. The defendant submitted that I should not accept the plaintiff’s evidence that after ceasing work, he suffered any deterioration in his right shoulder.
29 The defendant also submitted that the plaintiff’s return to work with the employer was supervised by Dr John Scaife, general practitioner. The defendant referred to medical certificates provided by Dr Scaife which certified the plaintiff as fit for the work he returned to with the employer. Dr Scaife was aware that the employer terminated the plaintiff’s employment in December 2017. He considered that, since ceasing work, the plaintiff’s capacity to use his right shoulder and arm had become more limited. In relation to the plaintiff’s capacity to perform suitable employment, he said:
“Mr Neal has capacity for employment however any work undertaken would have to involve very limited use of his right arm and shoulder and no overhead work. Work such as a school crossing supervisor or Traffic Control officer at a work site may be examples of suitable employment. If suitable work as (sic) available he could work up to full time.
The restrictions on the type of work he could perform are likely to apply for the foreseeable future.” [5]
[5]PCB 43
30 The restrictions which Dr Scaife referred to were restrictions in activities involving pushing, pulling or lifting, use of his right arm, prolonged or repetitive use of his right arm, use of plant and equipment, and overhead activities to a significant extent, which he considered would apply for the foreseeable future.
31 The defendant placed significant emphasis on the fact that Dr Scaife was perhaps in the best position of all of the medical practitioners to make an assessment of that capacity. Interestingly, and consistently with the opinions of Mr Chehata and Mr Pullen, Dr Scaife was of the opinion that the plaintiff would develop post-traumatic arthritis in his right shoulder in the future which would result in increased impairment of his right shoulder, and would then result in increased restrictions and pain which would impact upon all of his activities of daily living, and by inference, also upon his capacity to work.
Preliminary conclusions
32 I pause here to consider the competing submissions of the plaintiff and the defendant before turning to the further cross-examination of the plaintiff, during which it was put to him that he has a capacity to return to particular types of suitable employment.
33 Firstly, I am satisfied that the plaintiff suffered a major injury to his right shoulder. I accept the opinions of Mr Chehata and Mr Pullen. Mr Chehata is in the best position to offer an opinion in an overall context of the nature, extent and gravity of the plaintiff’s injury and how it will affect him in a range of activities, including capacity to return to suitable employment. Mr Pullen is an orthopaedic surgeon who is undoubtedly in the range of special surgical interest relevant to diagnosing and treating a musculoskeletal injury of the kind suffered by the plaintiff to his right shoulder. His evidence was not challenged directly. I see no reason why I should not accept his evidence. The aggregate effect of the evidence of both Mr Chehata and Mr Pullen is that the plaintiff not only has an injury of the nature, extent and gravity described by both of them, but one which precludes the plaintiff from returning to his pre-injury work, and to any other work.
34 Secondly, I accept the plaintiff’s evidence that he was improving after his return to work with the employer, but after he was terminated, he experienced a deterioration in the function of his right shoulder. There is a wealth of opinion to support that evidence. It is clear from the opinions of Mr Chehata and Mr Pullen that the plaintiff faces deterioration in his right shoulder to the extent that he may well require further significant surgical treatment. Mr Chehata considered he may require a further arthroscopic synovectomy and washout, and the potential for a right shoulder arthroplasty. Mr Pullen considered that the condition of the plaintiff’s right shoulder “will deteriorate further with time”[6] and “will eventually require total shoulder replacement surgery”.[7] Both of those opinions cannot lead to any other conclusion than the condition of the plaintiff’s right shoulder will inevitably deteriorate. The plaintiff’s evidence of deterioration is entirely consistent with those opinions. Dr Scaife was of a similar opinion. Dr Slesenger recorded that the plaintiff told him in November 2019 that he was experiencing a slow deterioration in his symptoms with a reduction in the range of his activities and increasing pain, and that he was continuing to avoid his right side, had difficulty forward reaching, over-shoulder reaching and difficulty reaching his backside by, no doubt, putting his hand behind his back. I do not accept the defendant’s submission that the plaintiff’s evidence, relevant to deterioration, constitutes a matter of the plaintiff’s creditworthiness. I accept the plaintiff’s evidence of the deterioration he experienced, and when it began, without hesitation.
[6]PCB 49
[7]PCB 49
The alternative or suitable employment
35 The defendant submitted that if I was satisfied that the plaintiff was capable of engaging in repetitive tasks consistent with the return to work with the employer and what he was shown to be able to do on the film, then there is no reason why the plaintiff could not work in one of three types of suitable employment. The defendant engaged an organisation known as Nabenet, which identified work as a meter reader, hand packer and labeller, as suitable employment. The job descriptions contained in reports from Nabenet were tendered by the defendant.
36 The defendant provided Dr Slesenger with a number of job descriptions. The relevant reports in which he considered the job descriptions are dated 20 November 2019 (examination 13 November 2019) and 17 December 2019 (no additional examination). In particular, he considered whether the plaintiff could engage in work as a hand packer and a labeller. He considered that each were suitable employment options, given his analysis of a body of medical evidence he was provided, his examination of the plaintiff, and his analysis of what he understood the tasks the plaintiff would be required to perform to engage in those jobs. Additionally, the plaintiff was cross-examined regarding his capacity to work as a traffic controller, meter reader and console operator. I understood the cross-examination relevant to those jobs was to serve the purpose of demonstrating that they were within a range of jobs which the plaintiff was physically capable of undertaking and constituted suitable employment.
37 Dr David Middleton, occupational health rehabilitation consultant, was engaged by the plaintiff to provide an opinion on whether the plaintiff was capable of engaging in any form of suitable employment. He provided a report dated 3 January 2020 (examination 3 December 2019). He was not provided with the Nabenet job descriptions provided to Dr Slesenger, except for meter reader. He considered that the jobs which he was asked to analyse were all unsuitable. Despite the apparent shortcomings in the material provided to Dr Middleton by the plaintiff, he relied on his opinion as to whether the plaintiff had any capacity to engage in any type of suitable employment. He considered that the plaintiff had no current work capacity and would be precluded from performing suitable employment for the foreseeable future. He considered that the plaintiff was restricted to sedentary, non-manual duties, and he considered those to be permanent restrictions.
38 What is clear when the opinions of Dr Slesenger and Dr Middleton are compared, is that they have reached very different conclusions regarding the residual capacity retained by the plaintiff, Dr Slesenger concluding that the plaintiff did have a residual capacity which could be exercised in suitable employment and Dr Middleton concluding the very opposite.
The cross-examination
39 I will now turn to the cross-examination of the plaintiff directed to whether he has a residual capacity to undertake particular jobs said to be suitable employment.
40 The cross-examination relevant to whether the plaintiff could perform the tasks involved in the jobs of meter reader, hand packer and labeller, were based upon a short description of what each of the jobs involved in the Nabenet report. The vice in the descriptions is that the author has referred to the duties involved in each of those jobs without descending into what the actual physical and intellectual tasks would be required of a person undertaking those jobs. For example the description of what a meter reader does is:
“Reads electric, gas or water meters, records usage, inspects meters and connections for defects and damage, and reports irregularities.”[8]
[8]Defendant’s Court Book (“DCB”) 73
41 The hand-packing job has a more detailed description, which permits some understanding of the physical tasks required of a person undertaking that job:
“Duties/Tasks:
• Quality Control duties – involves removing damaged or substandard product as well as identifying any foreign objects within the processing facility to ensure hygiene standards and quality produce
• Leading Hand duties – involves printing labels, closing boxes, completing paper work, filling customer orders, checking pallets, electronic data entry and record keeping electronic/manual (note – not all packers complete leading hand duties).
• Taking an empty box from the dispensary [less than] 1kg and place on scales to be automatically filled with lettuce leaves, once filled place filled box [less than] 4kg onto the pack line
• Some areas of the processing facility lettuce leaves are packed into tubs which way 2.2kg and are approximately 7kg once filled
• Remove 7kg filled tubs of lettuce leave from spinning machine to be placed on packing line.”[9]
[9]DCB 78
42 The labelling job also has a more detailed description which permits some understanding of the physical tasks required of a person undertaking that job:
“Duties/Tasks:
…
• Participating in morning meetings when required
• Preparing the working areas for each day
• Moving pallets stacked with empty bottles with a pallet jack. Pallets have empty boxes and empty bottles and therefore load is considered lightweight. The bottles weight (sic) … [less than] 2kg each and are on average stacked to approximately shoulder height.
• Lifting 2 bottles at a time and carrying them to a table where they are to be labelled.
• Labelling - This requires the employee to peel off a label which is placed at shoulder height and then placing it on the bottle. The bottle is then turned so each side can be labelled
• Cleaning - this requires sweeping and general hours keeping duties to ensure walk ways are clear and walking surfaces smooth.”[10]
[10]DCB 89
43 Accompanying the description of the labelling job are two photographs. The photograph on the left shows a pallet with boxes five wide and four high. The photograph on the right shows a pallet jack. Each photograph is said to demonstrate the general working environment, and also the floor over which the pallet jack would be operated.
44 Pausing here, I repeat that I am not satisfied that any of these jobs constitute suitable employment given the restrictions which Mr Chehata, Mr Pullen, Dr Scaife, Dr Middleton and Dr Slesenger would impose upon the plaintiff.
45 Furthermore, during cross-examination, the jobs were described with a tone suggesting that they are simple, straightforward and barely physically provocative, and therefore would be entirely suitable for the plaintiff to undertake full time. My strong impression of the plaintiff’s answers was that he doubted that he could undertake those jobs, and that was certainly his evidence when he was re-examined. A packing job certainly involves levels of manual handling – for example the labelling job involves the use of a trolley jack to lift and carry loads, and the packing job, likewise, involves manual handling. The meter reading job involves a level of familiarity with computers and hand-held computer advances in them for provision of reports. It is clear to me that the levels of manual handling and the necessity to have literacy and numeracy skills applied to computer use, are beyond the plaintiff.
46 I should also pause here to say something about the plaintiff’s creditworthiness and reliability. I consider him to be a thoroughly honest, straightforward and reliable witness. I consider that he gave his answers spontaneously and responsively, and was fair minded in his consideration of whether he could undertake the tasks involved in performing the jobs referred to by the defendant. He did not discount that he could do some of the tasks involved in those jobs. What he did do was point to where he would encounter difficulty in undertaking some of the tasks.
47 Furthermore, I am all the more fortified in accepting the whole of the plaintiff’s evidence because he struck me as being a highly motivated man. He has worked in labouring jobs all his adult life, which are undoubtedly physically arduous. He returned to that very work, although on modified duties, and persevered until he was terminated. He candidly said that he would have continued performing those modified duties had he not been terminated.
48 My assessment of the plaintiff’s creditworthiness and reliability leads me unhesitatingly to the conclusion that I should accept the whole of his evidence that there are aspects of each of the jobs, about which he was cross-examined, which he could not tolerate physically. His evidence, coupled with the medical evidence I accept, demonstrates clearly that none of these jobs constitute suitable employment.
The other jobs
49 The plaintiff was cross-examined about his capacity to perform the tasks in some other jobs for the purpose of demonstrating that he has a capacity to undertake at least some of the tasks involved in those other jobs.
50 The plaintiff was cross-examined about whether he could perform the tasks involved in being a traffic controller and a console operator.
51 The plaintiff obtained the relevant qualification to be a traffic controller. Again, these jobs were described with a tone suggesting that they are also simple, straightforward and barely physically provocative, and therefore would be entirely suitable for the plaintiff to undertake full time.
52 There was no description provided of what tasks a traffic controller undertakes. The plaintiff gave reasonably extensive evidence under re-examination, which has persuaded me that it involves a significant amount of manual handling, some repetitive manual handling and general manual tasks, which would contravene the restrictions placed upon him by the medical practitioners who I referred to above.
53 The Nabenet report contains a description of the console operator job which permits some understanding of the physical tasks required of a person undertaking that job:
“Duties
• Scanning, weighing and recording prices of goods
• Receiving and processing payments for goods and services by cash, cheques, gift vouchers, credit and debit cards another payment types
• Issuing sales dockets and giving change
• Maintaining supplies of change, wrapping and other materials used at checkout
• Counting and recording money received and balancing against register sales records, and preparing money for deposit in financial institutions
• Recording and balancing petty cash disbursements
• Operating a computer terminal to administer the store’s financial transaction system
• Cashing authorised cheques.”[11]
[11]DCB 73
54 The job description appears to me to limit the job to standing behind the counter, engaged in financial transactions with customers. It was through re-examination that the plaintiff said that, if working as a console operator involved manual handling, for example breaking down boxes and replenishing drinks in fridges, he would not be able to cope if some of that work involved tasks requiring him to work over-shoulder height.
55 Even though these jobs did not figure in the mathematical calculation of whether the plaintiff could establish the requisite degree of loss, they were the subject of cross-examination and relied upon to the extent that they were within a range of work which the plaintiff could perform, or at least some of the tasks involved in them.
56 For the same reasons that I gave when dealing with the jobs which the defendant proposes are suitable employment, I have concluded that these jobs are not.
Literacy and numeracy
57 The issue of the plaintiff’s literacy and numeracy skills were relied on by the plaintiff. The plaintiff submitted that he could not perform tasks in any of the proposed jobs if they involved modest literacy and numeracy requirements.
58 The plaintiff left school when he was fourteen years of age. He completed half of what was then known as a Form 2. His literacy and numeracy were tested by Ms George on 21 November 2019. She describes her special interest as occupational therapy. Ms George tested the plaintiff’s literacy skill. She applied a reading test, which she referred to in the body of her report. She assessed his reading skill as being at the level of a child of ten-years-and-four-months old. She applied a literacy test relevant to the plaintiff’s spelling. She applied a spelling test which she referred to in the body of her report. She assessed his spelling skill as being at the level of a child of seven-years-and-two months to seven-years-and-eleven-months old.
59 On any view, having such modest levels of capacity, with what most members of the community would regard as easily acquired skills in reading and spelling, is remarkable. Coupled with the fact that the plaintiff is fifty-eight years of age and has worked in labouring work where reading and spelling, and no doubt numeracy, are not relevant, places him in an invidious position in engaging in any employment where those sorts of fundamental skills are essential. It is difficult to comprehend how the jobs which I have reviewed would not require some measure of reading, spelling and numeracy skills.
60 The plaintiff relied on his lack of skills in this respect when addressing the meter reader job. To the extent that he needs to read numbers and enter those into a computer or hand-held computer device, it was said that he would struggle, and indeed, he said he would not have confidence in being able to undertake that task. The plaintiff relied upon his learning deficits as a strong additional reason why I should conclude that none of the jobs I have reviewed are suitable.
61 The defendant’s challenge to this submission was to question the qualifications of Ms George. I reject that challenge out of hand. Ms George has a Bachelor of Science degree and a Bachelor of Applied Science degree, and also a graduate certificate in an area described as “WHS”. I must conclude that Ms George applied the tests relevant to reading and spelling, that she has the qualifications and experience to understand those tests and to apply them, and then to be capable of interpreting the results. If there was to be a legitimate challenge of her, then it should have been undertaken in a very different way than during addresses.
62 The defendant also challenged the plaintiff’s lack of these skills by referring to the fact that he swore two affidavits without assistance. The defendant submitted that the affidavits are of themselves couched in somewhat complex language, and therefore, how could it be that he is so modest in his literacy and numeracy, yet could capably read the affidavits, adopt them, and swear that the contents are true and correct. I think there is something in the submission made by the defendant, but I do not completely accept that being able to read an affidavit and understand its flavour is necessarily inconsistent with having the modest skills found by Ms George.
Summary of conclusions
63 In summary, and after considering the evidence tendered in the Court Books, the oral evidence of the plaintiff and the submissions of counsel, the pathway to the conclusion I have reached can be summarised as follows:
·The plaintiff is a creditworthy and reliable witness whose evidence I unhesitatingly accept in whole.
·The evidence of the medical practitioners, save for Dr Slesenger in some respects, overwhelmingly demonstrates that the plaintiff has suffered a major injury to his right shoulder which has very significantly impaired the function of his right shoulder to the extent that he is very limited in being able to apply his right arm in manual functions.
·That medical evidence also demonstrates very clearly that the plaintiff has experienced deterioration in the function of his right shoulder, and that will inexorably continue to the point where there is a real probability that he will require some form of a symptomatic surgical treatment and perhaps, ultimately, shoulder replacement.
·The plaintiff’s age, education and range of work he has undertaken over his life, seriously limits him to manual work, which I accept he is no longer fit to perform, save for very light work, and perhaps only on the basis of reduced hours. In real terms, the medical evidence which I accept clearly demonstrates that he has no capacity to engage in suitable employment, and certainly not in the jobs proposed by the defendant.
64 On the basis of the foregoing analysis of the cases put by the plaintiff and the defendant, I have concluded that the plaintiff has not retained a residual capacity which he can exercise in suitable employment. I will grant the plaintiff the leave that he seeks.
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