Nguyen v Toyota Motor Corporation Australia Limited
[2016] VCC 1508
•14 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-00896
| CHINH VINCE NGUYEN | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA LIMITED (ABN 64 009 686 097) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 May 2016 | |
DATE OF JUDGMENT: | 14 October 2016 | |
CASE MAY BE CITED AS: | Nguyen v Toyota Motor Corporation Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1508 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left and right shoulder and right wrist – pain and suffering and loss of earning capacity damages – range case
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Jurukouski v Windsor Caravans Pty Ltd [2015] VCC 1800; Richter v Driscoll [2016] VSCA 142; Harris v DJD Earthmoving [2016] VSCA 188; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Public Transport Corporation v Pitts [2007] VSC 356; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
Judgment: Leave granted to the plaintiff to commence a proceeding at common law seeking damages for pain and suffering and pecuniary loss consequences as a result of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Mr S J Carson | Slater & Gordon Pty Ltd |
| For the Defendant | Ms M Britbart QC with Ms D Churilov | Minter Ellison |
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 injuries suffered by him in the course of his employment with Toyota Corporation Australia Limited (“Toyota”), the defendant.
2 The plaintiff seeks to bring proceedings for damages in relation to pain and suffering and loss of earning capacity. The plaintiff brings this application pursuant to paragraphs (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
3 There, “serious injury” is defined as meaning:
“a) permanent serious impairment or loss of a body function; or
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
4 The body functions relied upon in this application are injury to the left shoulder, the right shoulder and the right wrist.
5 The mental or behavioural disturbance or disorder relied upon is a Major Depressive Disorder.
6 The plaintiff relied upon two affidavits, sworn on 26 September 2014 and 5 May 2016. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or evidence, however, I will refer to the relevant evidence in my reasoning. In addition, both parties relied on medical reports and other medical material which were tendered in evidence. I have read all of the tendered material.
The issues
7 Counsel for the defendant informed the Court that there were a number of issues for determination:
(i)This is a range case and the consequences flowing from the claim of permanent serious impairment or loss of body function and/or the mental or behavioural disturbance or disorder under paragraphs (a) and (c) of the definition of “serious injury” do not satisfy the threshold for “serious injury” in respect of pain and suffering, as well as economic loss consequences;
(ii)Whether the left and right shoulders can be combined to be considered as one body function or whether any of the three body impairments on their own, being the left shoulder, the right shoulder or the right wrist, are a “serious injury”;
(iii)There is a lack of substantial organic basis to the plaintiff’s alleged impairment/s, such that it is incumbent on him to perform the disentangling exercise. In particular, the plaintiff suffers from non-compensable conditions of his neck, lower back and right elbow, such that it is incumbent on him to disentangle the effects of these conditions from the effects of the compensable injuries in respect of the alleged serious consequences;
(iv)The plaintiff claims an alleged permanent severe mental or behavioural disturbance or disorder, which has not stabilised;
(v)The plaintiff has a work capacity:
(a)the plaintiff is fit for full-time non-manual work, based on his transferrable skills, including his Bachelor Degree in Mechanical Engineering and prior work experience as a CAD draftsperson;
(b)should retraining be required, there is no impediment to the plaintiff being retrained; and
(c)the plaintiff is fit, or would be fit, after retraining for suitable employment on a full-time basis.
Credit of the Plaintiff
8 The plaintiff’s credit was not in issue. The plaintiff answered all questions put to him in a direct and frank manner and made appropriate concessions. On occasions, the plaintiff made concessions which were contrary to his interests, in that he said he would try any number of jobs.
9 He conveyed to the Court his keenness to return to work, including the number of positions for which he had applied. I note that Dr Ho, occupational health consultant, said there was no exaggeration of his clinical features.[1] Mr Michael Polke, orthopaedic surgeon, commented that of the plaintiff’s current symptoms, very little was due to functional overlay.[2] A number of reports referred positively to the plaintiff’s motivation.[3]
[1]Defendant’s Court Book (“DCB”) 48
[2]DCB 109
[3]Mr Hartley, Recovre and IPAR
10 The plaintiff’s evidence was that he understood English but he said he could not speak it very well.[4] In the application before me, an interpreter was engaged. However, on occasions, the plaintiff answered questions in English. During cross-examination, I found him very difficult to understand. He spoke very quickly. Whilst some witnesses said his English was good, a number commented on his poor conversation skills.
[4]Transcript (“T”) 18, Lines (“L”) 11-16
11 Dr Peter Blombery, consultant physician in vascular disease, said that any form of clerical work would be limited by the plaintiff’s command of English.
12 Ms Katarina Jakovljevic, occupational therapist, of CoWork Pty Ltd, said that he spoke English well, albeit with a strong accent and occasionally with poor articulation, which at times was difficult to understand. His speech was fast-paced which, combined with mumbling at the beginning of his sentences, necessitated his being asked to repeat himself.
13 I accept his complaints of pain and problems with his left and right shoulders. I accept the veracity of the histories provided to the doctors. I accept the affidavit evidence as reliable and accurate.
14 I note that the plaintiff was under surveillance. Surveillance video of the plaintiff was brought into existence for the dominant purpose of use in litigation and in respect of which privilege is not waived. No video surveillance was shown nor was its absence explained. I can infer that the surveillance did not assist the defendant’s case.
The Plaintiff’s background and injuries
15 The plaintiff is aged forty-nine. He was born in Vietnam and was educated in the United States, where he obtained a Bachelor of Mechanical Engineering in 1991. Whilst he was studying, he successfully ran his own business by assisting family and friends with home renovations, which he continued after he completed his degree. He said that he did not work as an engineer as the United States was in a recession. He migrated to Australia in 1996.
16 The plaintiff obtained employment in Australia initially as a fencer, working for three to four years, before obtaining work with Downey, first as a press operator, which involved physically operating a machine. He then became a laser operator and was responsible for the laser department. At the same time, he worked as a drafter using a computer-assisted design, which he learnt on the job. He told the Court that there was limited opportunity to advance at Downey. He worked two jobs for a period with Downey and Toyota.
17 In 2003, the plaintiff gained employment as a car assembler at Toyota. During the course of his employment with the defendant, he developed injuries to the left and right shoulder and injuries to the right wrist and, to a lesser extent, the left wrist.
18 In 2006, he injured his right shoulder at work. He consulted the company doctor, Dr Farmer, who referred him for investigations to Mr John Salmon, orthopaedic surgeon, shoulder and elbow specialist. In October 2006, he underwent surgery to rectify his right shoulder. An arthroscopic subacromial decompression was carried out and the rotator cuff was then repaired. He was off work for three months and returned to work on light duties and modified hours. The plaintiff returned to full duties and normal hours.
19 In April 2007, the plaintiff developed pain in his right wrist. In June 2007, he underwent an ultrasound of his right wrist and a steroid injection in the right wrist region, which provided some temporary relief. He returned to work but the right wrist symptoms returned.
20 In 2009, during the course of his work with the defendant, the plaintiff experienced ongoing pain and discomfort with his left shoulder. In June 2009, the defendant’s doctor referred him to Mr Salmon. The plaintiff reported left shoulder pain giving him ongoing discomfort, particularly with overhead activities and when pulling or pushing heavy loads. Following investigations in August 2009, the plaintiff underwent surgery to his left shoulder to repair the torn supraspinatus tendon. He was off work for a period of time but returned to work on light duties, graduating to full-time duties. At this time, his right wrist pain deteriorated. He began to experience ongoing pain and discomfort in both shoulders, worse on the right.
21 In mid-2010, the plaintiff underwent an ultrasound on both shoulders, which was arranged by Dr Farmer. Due to his ongoing right wrist pain, he was referred to Mr David Freilich, neurologist, who arranged for nerve conduction studies of the plaintiff to be undertaken.
22 In late November 2010, the plaintiff was referred to Mr Jason Harvey, orthopaedic surgeon. Mr Harvey said the plaintiff presented with right upper limb symptoms. His main complaint was numbness and tingling of the entire hand. He recommended steroid injection into the carpal tunnel.
23 In November 2010, the plaintiff consulted Dr David Middleton, occupational health and rehabilitation consultant, for the first time. Dr Middleton referred him to Mr Anthony Berger, hand surgeon.
24 In January 2011, the plaintiff consulted Mr Salmon in respect to his right shoulder pain. An ultrasound reported cuff tears. In February 2011, he underwent further surgery to his right shoulder.
25 In May 2011, the plaintiff underwent a right-sided endoscopic carpal tunnel release, performed by Mr Berger. Mr Berger said the plaintiff presented with bilateral carpal tunnel compression, worse on the right side. He described the left side as “mild” and which may require treatment in the future.
26 The plaintiff’s evidence was that he did not return to work for the defendant. He had hoped that he would be able to perform light duties and graduate to unrestricted duties with the defendant but was not offered a job performing light duties.
27 The plaintiff’s evidence was that he had applied for many jobs but had been unsuccessful in gaining employment. Despite the number of applications he has made, he has not been offered any interview.
Analysis of the evidence
The physical injury
28 In the present case, the evidence was that, over the course of his employment with the defendant, the plaintiff developed left and right shoulder injuries and a right wrist injury. The plaintiff also reported neck, back and elbow pain, which were not part of the plaintiff’s claim in the proceeding. The evidence was that the plaintiff was required to perform repetitive manual work using his arm movements above shoulder level, with force at times. The plaintiff’s evidence was that much of the work he performed was heavy, repetitive and strenuous work, which he performed at a fast rate. He said he worked like a robot.
The right shoulder
29 I shall first consider whether the right shoulder injury, as a body function, is a serious injury. That requires me to be satisfied the injury suffered arose out of or in the course of his employment with the defendant. The injury with its resulting impairment must be permanent in the sense that it is likely to continue for the foreseeable future. The consequences to the plaintiff of his right shoulder in relation to “pain and suffering” and/or “loss of earning capacity” must be serious – that is, when judged by comparison with other cases in the range of possible impairments, be fairly described as being “more than significant or marked” and as being “at least very considerable”. In addition, in relation to “loss of earning capacity” consequences, the plaintiff has a statutory burden to establish.
30 The plaintiff is right-hand dominant.
31 All medical witnesses accepted that the plaintiff suffered a work-related injury to his right shoulder, namely right rotator cuff symptoms which required surgery in October 2006 and revision in 2011.
32 In October 2006, the plaintiff was found to have a bursal sided tear of the supraspinatus as well as severe impingement. An arthroscopic subacromial decompression was performed and the rotator cuff was repaired.
33 In February 2011, the plaintiff underwent revision of the right shoulder arthroscopy under the following circumstances.
34 Mr Salmon said when the plaintiff returned in January 2011 complaining of pain in the right shoulder, he reported that he continued to work very hard on the production line and had not missed a day of work since the post-operative period for either shoulder. Mr Salmon said, when performing the revision, his previous tear was intact and there was still a little bit of catching from some of the suture, which he debrided. He also resected the distal clavicle as this may have been causing some of his problems.
35 I accept that the surgery of 2011 was related to the initial injury of 2006, given the findings of Mr Salmon in 2011 and due to the fact that the plaintiff was undertaking the same physical work as in 2006. This was supported by Mr Polke, orthopaedic surgeon.[5]
[5]DCB 108
36 The plaintiff’s evidence was that after the 2006 surgery to the right shoulder and the 2009 surgery to the left shoulder, he returned to light duties and graduated to full-time duties. After the revision surgery to the right shoulder in 2011, the medical evidence was that he should be considering other forms of employment which did not involve heavy lifting, long repetitive lifting and overhead activities.
37 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and
(b) loss of earning capacity.
38 If the plaintiff satisfies the test laid down by the Act for loss of earning capacity, then he is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[6]
[6]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170, at paragraph [63]
39 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff in respect to the right shoulder injury.
Loss of earning capacity
The narrative test
40 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time. Accordingly, I will be influenced by the more recent medical opinions of Dr Blombery, Dr Ho, Dr Yong, specialist occupational physician, and Mr Polke. Mr Salmon and Dr Middleton expressed views as to future employment, which are not current but were based on their expectations as to the future. All medical witnesses accepted the plaintiff could not continue in pre-injury employment because of his right shoulder injury.
41 As early as June 2011, Dr Ho, occupational health consultant, undertook a worksite assessment. It was his opinion that the pre-injury duties involved arm movements above shoulder level, with force required at times.[7] He said the plaintiff should not consider returning to manual or physical work where there is repeated or strenuous use of his right arm so as to avoid further rotator cuff tear and or a third operation to his right shoulder.
[7]DCB 54
42 This was supported by Mr Polke, who said, in April 2013, that he would not advise resuming his pre-injury employment as it is likely to re-aggravate his shoulder conditions. He recommended sedentary-type employment.[8] He recorded this view in 2016.
[8]DCB 110
43 In February 2016, Dr Blombery said the plaintiff was limited in activities involving the use of the upper limbs and he would be restricted, to a marked extent, in terms of activities involving his right and left arms and shoulders, which incapacity, he considered, would continue for the foreseeable future.[9] He said, theoretically, the plaintiff could do light duties using mainly his left arm.[10] He described the plaintiff as intelligent and the fact that he had done a Bachelor of Engineering may aid him in some form of clerical work, but noted that this would be limited by his command of English and his previous work experience.[11] He thought the plaintiff’s symptoms would fluctuate, and described his prognosis as “very poor”.[12]
[9]PCB 115
[10]PCB 116
[11]PCB 116
[12]PCB 116
44 In February 2016, Dr Reza Sabetghadam, occupational physician, said the plaintiff had degenerative changes in both shoulders which will continue their own path in the future. Repetitive, forceful and prolonged work with awkward postures above shoulder level could contribute to acceleration of arthritis and degenerative changes in both shoulders.[13]
[13]PCB 108
45 I accept the medical evidence is that the plaintiff cannot return to pre-injury employment because of the injury to the right shoulder. A number of the medical witnesses specifically addressed the right shoulder alone.[14] Other medical witnesses referred to restrictions on the use of the shoulder, which I interpret to apply to both the left and right shoulders individually.[15] However, I accept that this plaintiff is right hand dominant. Since arriving in Australia, he has performed unskilled manual work, and I adopt what Judge Jordan said in Jurukouski v Windsor Caravans Pty Ltd[16] that “for an unskilled worker, the realities are that the dominant arm is probably the worker’s primary and most important asset”.[17] Dr Blombery acknowledged this when he said, “he would theoretically be able to do light duties using mainly his left arm”.[18]
[14]Dr Ho and Dr Yong
[15]Dr Sabetghadam
[16][2015] VCC 1800
[17]at paragraph [16]
[18]PCB 116
46 Furthermore, I accept the plaintiff disentangled the right shoulder pain from the neck, back and elbow pain as the medical witnesses addressed the consequences of the shoulder injury as distinct from the consequences of the neck, back and elbow injury.
47 All medical witnesses said the plaintiff could perform work with restrictions, namely, non-physical type work or suitable work.
48 In February 2016, Dr Dominic Yong said the plaintiff had a current capacity to perform tasks with the following restrictions:
§avoid right arm above shoulder height tasks or reaching duties on a repeated basis
§avoid right arm firm pushing or pulling on a repeated basis; and
§avoid lifting more than 5 kilograms on a repeated basis.
49 Mr Polke imposed restrictions of avoiding heavy lifting and repetitive reaching and other above shoulder activities, particularly on the right side.[19]
[19]DCB 111
50 The issue was whether the defendant had identified “suitable work” for the plaintiff.
51 The defendant relied upon the vocational assessment report from Recovre dated 18 December 2011, a report from IPAR dated 4 March 2013 and the labour market analysis from CoWork dated 24 April 2016. All reports identified employment options.
52 The consultants commented favourably upon the plaintiff’s motivation to obtain employment.
53 The Recovre report identified the following job options:
· Automotive/spare parts interpreter
· Customer service representative (eg for car rental business)
· Office administration
· Draftsperson
· Engineer.
54 With respect to the jobs outlined in the Recovre report, Dr Yong and Mr Polke considered whether the job options were suitable for the plaintiff.
55 Dr Yong considered the requirements of each job and said the automotive/spare parts interpreter and customer service representative roles, for example car rental business, were likely to comply with restrictions and would be considered suitable to perform. He said the roles of office administration, draftsperson and engineer would comply with restrictions and would be considered suitable.
56 Dr Yong thought the plaintiff would benefit from a graduated return-to-work program, initially involving working reduced hours, such as working four-hour shifts for three days per week. The working hours could increase on a progressive basis to the pre-injury level over a six-month period.[20]
[20]DCB 84
57 Mr Polke said the plaintiff has the capacity to undertake non-physical work of automotive/spare parts interpreter, customer service representative, office administrator/draftsperson and engineer outlined in the vocational assessment report of Recovre dated February 2011.
58 The IPAR report identified the following employment goals with the plaintiff, who expressed an interest in all of the following roles:
· Engineering production worker
· Draftsperson
· Tutor – engineering
· Office administrator/co-ordinator in the mechanical engineering industry or in information technology.
59 Dr Yong said he would anticipate that the tasks for the employment options outlined in the IPAR report would comply with the work restrictions, thus the options would be reasonable. Mr Polke said he could undertake the jobs in the job options in the report with the following restrictions of avoiding repetitive above shoulder activities, avoid heavy lifting, pulling and pushing and avoid lifting more than 5 kilograms.
60 Counsel for the plaintiff submitted that after twelve weeks, IPAR closed its file as no work was secured.
61 In March 2016, CoWork Pty Ltd identified the following positions as potentially suitable for the plaintiff:
· CAD operator/draftsperson (skill level 2)
· Thermographer (skill level 2)
· Estimator (skill level 2)
· Meter reader (skill level 2).
62 Dr Yong considered each of the above positions and the detailed description of each job. He reviewed each job individually and concluded that each job complied with the restrictions he imposed. He did not indicate whether the plaintiff required retraining for the positions or whether his training was current to perform the individual jobs. He reiterated his comments regarding a graduated return to work.[21]
[21]DCB 85c-85d
63 Mr Polke said the plaintiff could perform any of the jobs referred to in the report with the following restrictions:
· avoid repetitive above shoulder movements
· avoid heavy lifting
· avoid pulling and pushing
· avoid lifting more than 5 kilograms.
64 Mr Polke said the plaintiff could perform the roles of CAD operator and thermographer, commencing part-time work of 20 hours a week, gradually increasing to full-time hours over a six to twelve-month period.[22]
[22]DCB 117-118
65 In May 2016, Dr Ho was provided with the report of CoWork Pty Ltd dated 29 April 2016. Dr Ho had not examined the plaintiff since June 2011 and therefore was not aware of his current condition and work capacity. Based on his examination of the plaintiff in 2011, he said the plaintiff had transferable skills to undertake the duties identified in the report of CAD operator/draftsperson; thermographer; estimator (construction) and meter reader. He was not prepared to indicate the hours the plaintiff could work without an up-to-date examination. He thought he would need at least a six to twelve-month work conditioning and adjustment period. I consider Dr Ho’s report of limited value as he had not examined the plaintiff since June 2011.
66 In March 2016, a vocational assessment report was provided by Mr Paul Hartley, senior rehabilitation consultant, of Vocational Directions, which was relied upon by the plaintiff. It was Mr Hartley’s opinion that the plaintiff was not vocationally suited to alternative lighter forms of employment in the current world of work, such as retail and clerical roles, due to his lack of experience in such work at the age of forty-nine years. He had experience of one year of demonstrable work as an engineer since he graduated twenty-five years ago and he did not consider that his engineering skills are transferrable into a viable work situation without upskilling. His limited CAD drafting experience was more than a decade ago and would require upskilling at a tertiary level.[23]
[23]PCB 33-50
67 It was Mr Hartley’s opinion that the plaintiff’s employment as an assembly worker at Toyota was his most enduring employment role. He is precluded from that role due to his right shoulder injury. It was his opinion that the plaintiff’s injury has diminished his transferrable skills. Further, he had been marginalised from the workforce, which was evidenced by his inability to gain employment over the past five years despite job-seeking assistance and many applications for employment. He noted that the plaintiff had not been provided with any form of retraining, despite medical advice that this was required. He described the plaintiff as “long-term job detached”.
68 Mr Hartley considered the Recovre and IPAR reports, and the jobs suggested in those reports. Of the positions suggested, he made the following comments.
Automotive spare parts interpreter
69 The plaintiff has no skills or experience in such a role. His work experience would not assist him into entry in this role. The educational requirements require a traineeship or apprenticeship which, given his age of forty-nine years and his inability to undertake unrestricted employment, would be a bar. He did not consider this suitable employment for the plaintiff.[24]
[24]PCB 46
Rental salesperson – cars
70 Mr Hartley said the plaintiff has no related skills or experience and no customer service experience. He did not believe this was suitable employment.[25]
[25]PCB 46-47
Administration assistant/general clerk
71 Mr Hartley noted the plaintiff had no clerical jobs or demonstrable experience. Further, he said his engineering and good computer skills would see him overqualified, despite his lack of relevant skills and experience in any clerical role. He regarded the plaintiff’s physical ability to sustain constant computer-based and writing tasks would be compromised by his bilateral upper-limb injuries, reducing his ability to provide the constant and reliable work product required. He did not consider this suitable employment.[26]
[26]PCB 47
Draftsperson (mechanical engineering draftsperson)
72 While Mr Hartley accepted the plaintiff had experience in such a role, it was more than ten years old. Technology has evolved and the plaintiff has not been provided with the training necessary to access such work. He would have to complete further training, such as an Advanced Diploma in Technology, which was a two-year full-time course. He considered the plaintiff’s ability to sustain the constant computer-based and writing tasks would be compromised by his shoulder injury, reducing his ability to provide the consistent and reliable work product required. All jobs advertised required at least two to three years’ recent experience. He did not believe this would be suitable employment.[27]
[27]PCB 47
Mechanical engineer
73 The plaintiff does not have any current experience or continued professional development. Mr Hartley said the plaintiff’s physical ability to sustain constant computer-based and writing tasks required of this role would be compromised by his bilateral upper-limb injuries, reducing his ability to provide the consistent and reliable work product required.[28]
[28]PCB 47-48
Engineering production worker
74 The plaintiff has no experience or skills in this unskilled job which has very heavy physical demands and, accordingly, the plaintiff would be precluded on medically advised physical grounds.[29]
[29]PCB 48
Engineering tutor
75 It was unclear whether this referred to a university tutor of engineering or a private tutor. For each option, qualifications and recent experience in excess of the plaintiff’s would be required. Mr Hartley said the majority of private tutors work fifteen hours, or less, per week, thus the availability of full-time work and remuneration would be poor.[30]
[30]PCB 48
ICT customer support officer
76 The plaintiff has no direct qualifications, skills or experience for this role to gain employment. In this job description, a degree qualification is often required, however, given his qualifications, an Advanced Diploma of Computer Systems Technology may suffice. The role can entail physical work with the need to install hardware and computer systems and cabling, thus each job type would require assessment for suitability. The plaintiff’s ability to sustain the constant computer use required of this role would be compromised by his bilateral upper limb injuries. Mr Hartley said that each job advertised required relevant industry experience as well qualifications. Accordingly, Mr Hartley did not consider this suitable employment.[31]
[31]PCB 49
77 Mr Hartley concluded that the plaintiff was not fit for suitable duties and that there was no current work capacity.[32] Mr Hartley was not asked to consider the jobs outlined in the CoWork report of 29 April 2016. However, I accept the job options identified in that report are similar to those considered in the Recovre and IPAR reports, other than the role of meter reader, a job which is unlikely to be in existence within the next six months.
[32]PCB 50
78 I prefer the report of Mr Hartley to the reports of the medical witnesses who commented on the vocational reports of Recovre, IPAR and CoWork. Mr Hartley has considered in detail the positions identified in the above-mentioned vocational assessments and has provided reasons why those positions are not suitable for the plaintiff. I find his reasoning logical and persuasive. It takes into account the specific experience, age and qualifications of the plaintiff.
79 As I have indicated, I found the plaintiff’s spoken English very difficult to understand. He required an interpreter on occasions. Whilst some witnesses said his English was relatively good, Dr Blombery said that any form of clerical work would be limited by his command of English. I also note the comments of Ms Jakovljevic of CoWork as to his spoken English, referred to above.[33]
[33]Paragraph 12
80 I formed the view that his English skills would restrict his ability to obtain employment in non-manual work. I could not be confident that his spoken English would qualify him to obtain the sort of employment referred to in the vocational reports of Recovre, IPAR and CoWork. Whilst I have not relied upon the following emails which were included in the Court book, as they were not tendered, I note that they support the view that I have come to. I specifically identify an email from Recovre to Toyota dated 4 February 2012[34] and an email from Recovre to Toyota dated 8 May 2013.[35] I also take into account the plaintiff’s evidence that while working for the defendant, positions for engineers became available. The plaintiff applied for these positions with the defendant but was unsuccessful.
[34]DCB 228-229
[35]DCB 243
81 Clearly, the plaintiff has the ability to study at tertiary level. However, the evidence is that he has only ever performed manual work in Australia. Furthermore, I consider any qualifications/experience the plaintiff has in respect to engineering and CAD drafting are outdated. On the plaintiff’s evidence, he has not worked as an engineer, although there was some suggestion by Mr Hartley that he performed limited work at a poultry farm in Australia many years ago. I accept Mr Hartley’s report that his engineering qualifications and his self-taught CAD experience is outdated.
Richter v Driscoll and Harris v DJD Earthmoving Pty Ltd
82 Following the recent decisions of the Victorian Court of Appeal in Richter v Driscoll[36] and Harris v DJD Earthmoving Pty Ltd,[37] which were handed down after the hearing of the application, I invited both parties to make written submissions as to the plaintiff’s work capacity.
[36][2016] VSCA 142
[37][2016] VSCA 188
83 In Richter, the Victorian Court of Appeal considered the meaning of the definition of “no current work capacity” in relation to return to work in “suitable employment” for the purposes of the Act.
84 The Court found, at paragraph [106], that the correct question was such that the Medical Panel dealing with the matter in that case was required to consider whether the entirety of the applicant’s relevant personal circumstances – that is, her injury-caused incapacity and other relevant personal circumstances which were discussed – meant that she would be unlikely to be successful in obtaining employment because she had nothing “merchantable to sell”.
85 The Court made it clear that capacity for work to return to pre-injury employment or otherwise requires a consideration of matters over and above just a physical capacity to carry out tasks. Ashley and Kaye JJA clarified that the current law expressed in Barwon Spinners Pty Ltd & Ors v Podolak[38] did not limit the definition of “suitable employment” to focus solely upon a worker’s physical capacity to undertake a task. Instead, it requires a holistic assessment of the plaintiff.
[38](2005) 14 VR 622
86 However, in Harris, the Court adopted a different approach to “suitable employment” where it stated, at paragraph [49], that it was:
“… incumbent on the judge to demonstrate by his statement of reasons that he had considered in detail what, if any, specific job or jobs Mr Harris might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after a pain management program and/or a drug treatment program and/or the undertaking of vocational education. … .”
87 In their written submissions, counsel for the plaintiff submitted that, on the basis of Richter and Harris, the defendant ought to be able to identify a job or “employment” and not just a “task” that the plaintiff was capable of doing. It was submitted that the plaintiff was not capable of taking on a job in the real world on the basis that he:
· required the assistance of an interpreter to give evidence;
· was a forty-nine-year-old man with a history of manual employment that now had limitations in using either arm (I interpolate right arm being the plaintiff’s dominant arm);
· was a qualified engineer but the qualification was obtained in the United States and is now outdated;
· has no experience in his field since migrating to Australia in 1996;
· had not worked since 2013; and
· had applied for a multiplicity of jobs without an interview.
88 I would also add that the plaintiff applied for positions of engineer as they became available with the defendant without being offered an interview.
89 Counsel submitted that the views of Mr Hartley more accurately addressed the law expressed in Richter as Mr Hartley opined that the plaintiff was not fit for “suitable duties” and as such had no current work capacity.
90 Counsel for the defendant sought to distinguish the plaintiff from that in Richter and instead said the plaintiff in this case did have a range of “merchantable” skills and experience to “sell” to a prospective employer. This included:
· he was educated to a university level and graduated with an honours degree in Mechanical Engineering;
· he ran his own business after college, renovating homes and organising contractors;
· upon arriving in Australia, he found immediate work at Downey, where half of his time was spent doing non-physical computer-based work including CAD software;
· he had an ability to learn new things and skills on the job; and
· his English skills were sufficient to enable him to study at high school and university, graduate with an honours degree, work, be promoted and learn skills on the job in an English-speaking country.
91 Based on the above, it was argued that the plaintiff had a work capacity as he had these merchantable skills to sell.
92 Further, counsel for the defendant sought to distinguish Harris, where it was argued that in Harris, a number of doctors had posited a possible improvement of the plaintiff’s capacity for employment through a pain management or drug rehabilitation course. Conversely, in this case, counsel submitted that no such improvement in the plaintiff’s physical work capacity was required in order for the plaintiff to be capable of suitable employment.
93 Counsel for the defendant submitted that a number of sedentary jobs were available to the plaintiff, such as an automotive spare parts interpreter, office administration, thermographer or computer design/draftsperson. It was argued that each job constituted specific employment for which the plaintiff had the capacity to perform in accordance with the reasoning in Harris.
94 I understand that the Court of Appeal are yet to indicate which of these approaches to “suitable employment” in Richter or Harris is to be preferred.
95 Applying the principles of Richter, taking into account a holistic assessment of the plaintiff, he has limited English speaking skills, limited work experience and limited movement in his right shoulder, being his dominant arm. It does not appear on the evidence that the plaintiff has merchantable skills to sell in the employment market place.
96 Applying the principles of Harris and taking into account Mr Hartley’s assessment, it appears that counsel for the defendant have not identified a suitable job that the plaintiff may obtain in the future whether retrained or not.
97 I accept the argument of the plaintiff that he has no work capacity for suitable employment.
Conclusion
98 Given the medical evidence, my observations of the plaintiff and his poor English skills, I accept the fact the plaintiff’s employment capacity is limited because of this disabling effect of his injury and his poor English. I rely on what Smith J said in Public Transport Corporation v Pitts[39] and follow Giankos v SPC Ardmona Operations Ltd.[40]
[39][2007] VSC 356
[40][2011] VSCA 121 at paragraph [115]
99 Smith J said:
“The case was one where it was plainly open to the learned magistrate to conclude that the plaintiff had established a prima facie case that no suitable employment as defined in the legislation existed and so was entitled to succeed in his case unless the defendant produced evidence sufficient to raise some specific alternatives for consideration. In my view, the reality was that the defendant had to adduce evidence sufficient to raise as a real possibility that there were particular types of employment available in the community which the plaintiff was capable of performing. If it did not it would lose. Thus there was an evidentiary onus on the defendant on that issue.”[41]
[41]Public Transport Corporation v Pitts (supra) at paragraph [17]
100 In this case, the defendant relied on employment options provided by Recovre, IPAR and CoWork. As I have said, I do not consider those positions suitable. The plaintiff is forty-nine years old. Since arriving in Australia, his work has been manual. He can no longer use his right arm above shoulder height. The plaintiff impressed me as a man who wanted to return to work. He outlined the many applications he had made for employment without being offered an interview. I accept that his inability to return to work represents a significant loss to this plaintiff, both with respect to his enjoyment of life and his self-esteem.
101 Given the length of time the injury has persisted and the medical evidence, I am satisfied that the plaintiff’s impairment is permanent. I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by a comparison with other cases in the range.
102 The plaintiff, therefore, satisfies the narrative test.
103 In reaching my finding, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
104 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
105 Given the medical evidence and that the plaintiff’s injury has continued since 2011, I find that the plaintiff is effectively out of the workforce for any suitable employment as a result of the impairment to the right shoulder, being his dominant shoulder, and the consequences flowing from that. Accordingly, there is no need to go into any analysis of wage rates as I do not accept that he has any residual capacity when the medical restrictions placed on him by the medical witnesses are considered in the context of the real commercial world.
106 I accept that the plaintiff has not been offered any retraining.
107 Given the plaintiff has lived in an English-speaking country for many years, I consider it unlikely that any retraining in English would increase his ability to obtain employment.
108 In view of the matters I have described, the plaintiff has discharged the onus with respect to his impairments of the right shoulder regarding his loss of earning capacity.
109 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages in respect of the right shoulder.
110 In accordance with Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[42] it follows I also grant leave to bring proceedings for pain and suffering damages.
[42]Supra
111 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages. In view of my findings in relation to the right shoulder, I have not addressed whether the left and right shoulder can be combined to be considered as one body function.
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