Pantazopoulos v Coburg Super Finish Smash Repairs Pty
[2010] VCC 436
•20 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-09-00823
| MICHAEL PANTAZOPOULOS | Plaintiff |
| v | |
| COBURG SUPER FINISH SMASH REPAIRS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 & 27 April 2010 |
| DATE OF JUDGMENT: | 20 May 2010 |
| CASE MAY BE CITED AS: | Pantazopoulos v Coburg Super Finish Smash Repairs Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0436 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – back injury to panel beater who is continuing on part-time restricted duties – application for leave in respect of pecuniary loss damages and pain and suffering damages – whether plaintiff exercising his earning capacity to the full – whether plaintiff could work more hours in current occupation or in alternative occupations – whether burden of proof discharged.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with | Maurice Blackburn |
| Mr G Chancellor | ||
| For the Defendant | Mr B McKenzie | Wisewould Mahoney Lawyers |
| HIS HONOUR: |
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”.
2 The plaintiff seeks leave to bring proceedings in respect to both pain and suffering damages and pecuniary loss damages. In so doing he relies solely upon sub-paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. Whilst documentation originally issued on behalf of the plaintiff contains a reference to reliance upon sub-paragraph (c) of the definition, it was made clear at the outset that no such reliance would be maintained. Of course, matters involving psychological or psychiatric conditions can still be relevant.
3 The injury upon which reliance is placed is one to the low back. It is alleged that the plaintiff, who is a panel beater, suffered the injury on or about 4 March 2005 whilst manoeuvring a heavy drum in the course of his employment. A central issue in the case is whether the plaintiff has established the required 40 per cent diminution in earning capacity as set out in s.134AB(38)(e) and (f) of the Act. The plaintiff continues to work on a part-time basis as a panel beater performing restricted duties, and it is alleged that his “with injury” earnings are less than 60 per cent of his “without injury” earnings. Whether he is working to the limits of his capacity is a question of some importance.
4 I will not set out here the numerous authoritative decisions of the Court of Appeal which are relevant. I have referred to them in many previous cases.
5 Mr P O’Dwyer SC with Mr G Chancellor of counsel appeared on behalf of the plaintiff. Mr B McKenzie of counsel appeared on behalf of the defendant. The plaintiff gave evidence and was cross-examined. The plaintiff’s treating practitioner, Dr Kenneth Dowd, similarly gave evidence and was cross- examined. The balance of the evidence was documentary in nature and was tendered by consent. This saved the court considerable time and doubtless also saved considerable expense. In addition, detailed and very well prepared submissions were made on behalf of each party.
Factual background
6 The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 7 I found the plaintiff to be an impressive, if at times somewhat agitated, witness. He made no secret of the fact that he suffers from an anger management problem, linking this at least partly to the pain and restrictions from which he suffers. Suggestions that he should look for employment in an occupation other than that of panel beating caused him particular agitation. I accept that he has a very strong attachment to that work. He impressed me as a completely frank, straightforward and honest witness. Even though the plaintiff became at times emotional and agitated, I regard him as a witness of truth upon whose evidence, whether in oral or affidavit form, reliance can be placed. I note that Dr Dowd gave evidence that the plaintiff:
“…is one of the few clients I would have had that continued to battle through their pain and continue working and not give up on work. That is because he is a hell of a lot more motivated to keeping going than most patients I’ve dealt with in my 20 years.”
8 Dr Robyn Horsley, occupational physician, who has seen the plaintiff at the request of his solicitors, described him as “a straightforward gentleman”. Dr Clayton Thomas, consultant in rehabilitation and pain medicine, who also saw the plaintiff at the request of his solicitors, described him as co-operative, but at times very emotionally distressed. Associate Professor Myron Goldwasser, examining the plaintiff at the request of his solicitors, referred to him as being well-motivated and a credible witness. Dr Botvinik, consultant psychiatrist, who examined the plaintiff at the request of the defendant, referred to him as being pleasant, polite and co-operative. I should add that Dr Botvinik expressed the opinion that the plaintiff did not demonstrate any diagnosable, identifiable mental disorder and presented as a mentally healthy person. The view which I formed of the plaintiff (excluding for the moment Dr Botvinik’s assessment of the plaintiff’s mental health) coincides with these opinions.
9 Further, I am not of the opinion that the plaintiff’s credit has been damaged by the fact that Dr Dowd was not aware that the plaintiff plays in pool competitions on a Tuesday and Wednesday night. Whilst Dr Dowd does not seem to have been aware of it (somewhat confusingly, his initial answer was that he was so aware, although subsequent answers indicate the contrary), the plaintiff has made no secret of it. At the first medical examination of him organised by the defendant on 3 May 2005, he told Dr Michael Baynes that he enjoyed playing eight-ball pool and was still playing competition (at that stage once a week) although not playing as well as prior to his back injury. When seen by Dr Timothy Entwisle, consultant psychiatrist, at the request of the defendant on 9 January 2009, the plaintiff stated that he played pool two days a week but his enjoyment and concentration had diminished. His affidavit of 22 October 2008 included reference to him playing competition pool two nights a week, but also to back pain whilst playing and a drop in the standard of his play, which apparently had been quite high. Thus, he has been perfectly open about his participation in pool even if it seems to have escaped the attention of Dr Dowd. I do not regard his credit as having been adversely affected by this. I am confident that reliance can be placed upon his evidence.
(ii)
The plaintiff’s background, training and employment prior to the injury of 4 March 2005
10 The plaintiff is aged 42 years, having been born on 22 June 1967. He is a married man with two young children. He completed Year 11 at school before working briefly at a menswear store. He apparently performed this work after school hours doing work experience, and then stayed on at the store for a short time after finishing his schooling. This work was performed when he was approximately 16 years old and seems to have lasted for something in the order of six months. Thereafter, the plaintiff commenced and completed a four year apprenticeship as a panel beater, and remained in that employment thereafter. I accept that panel beating is, as one would imagine, a physical job involving moving equipment, working in awkward positions, kneeling, bending, squatting and the like. The only other work he seems to have done was helping a friend who was running a film company, and the plaintiff did some courier work which involved driving and delivering film. This lasted only some four or five months. Exactly when this occurred is not clear.
11 The plaintiff commenced employment with the defendant in February 2004, although it would seem that he went back and forth between the defendant and another panel shop in Sydney Road, Coburg although, again, precisely when that occurred is not clear. I gather that the plaintiff was enticed into leaving work with the defendant because of an offer of greater money at the other panel shop, had an argument with the management there, and returned to work with the defendant.
12 In any event, the overwhelming bulk of the plaintiff’s working life prior to the injury was work as a panel beater, and I accept that his services were in demand. I also accept that his has always taken great pride in his work, and gained much satisfaction from it.
(iii) The injury (a) The plaintiff’s health prior to the injury 13 The plaintiff suffered from a fracture of his right ankle at the age of approximately 18 years. In approximately 1995 he also suffered an episode of depression and agoraphobia which occurred in a non-work context. I accept that he fully recovered from each of these prior injuries or conditions. I also accept that, being engaged in a physically demanding occupation, he had occasional back pain and stiffness and had, on a few occasions, attended a chiropractor for “maintenance therapy”. As he told Mr Michael Shannon, orthopaedic surgeon, who examined him on behalf of the defendant, this occasional soreness and tiredness in his back did not cause the plaintiff to lose any time from work. The end result is that I am satisfied that the plaintiff had suffered no prior relevant injury of note, and was fit and able to perform demanding physical work as at the time of the incident of injury.
(b) The injury suffered by the plaintiff 14 The plaintiff suffered injury in the course of his employment on 4 March 2005. This occurred when he was manoeuvring a heavy drum containing petrol onto a trolley. He immediately became aware of low back pain and reported the matter to his supervisor. The pain worsened, and he woke in the early hours of the next morning with back pain of considerable severity. He was not able to go to work. Subsequently, he attended a chiropractor on 8 March 2005, and a plain x-ray of his back was taken. A vestigial disc was noted between S1 and S2, and mild degenerative changes were present at T12/L1. On 11 March 2005, he attended a general practitioner and was prescribed Panadeine Forte. He worked on lighter duties, then attempted normal duties, but could not cope. He went off work again in early April 2005. He then seems to have been paid normal wages or sick pay. He subsequently attended Dr Bonwick, a general practitioner. That doctor took an appropriate history and organised a CT scan which was performed on 18 April 2005. This revealed mild, broad-based diffuse disc bulges at L4/5 and L5/S1, the bulge at L5/S1 “compressing on the theca anteriorly”. The radiologist’s conclusion was that there was a very mild spinal canal stenosis at L4/5 and L5/S1 levels with no evidence of focal disc prolapse. Dr Bonwick prescribed anti-inflammatory medication and physiotherapy, and, after a short absence from work, the plaintiff was certified as being able to resume work on alternative duties. This situation continued, and, after a work site visit, Dr Bonwick made arrangements for the plaintiff to perform duties supervising an apprentice.
15 After displaying some symptoms of depression and following some improvement in both that condition and his back symptoms, the plaintiff attended Dr Bonwick again on 26 July 2005 with an increase in his back pain. Dr Bonwick’s diagnosis was of a mechanical injury to the lower back consistent with the work incident. He referred the plaintiff to Mr Peter Kudelka, orthopaedic surgeon, for a further opinion. Mr Kudelka saw the plaintiff on three occasions, the first being on 4 August 2005. Mr Kudelka diagnosed mechanical aggravation of degenerative changes in the two lower lumbar discs, and suggested further physiotherapy and medication together with weight reduction. He also organised an MRI which was carried out on 20 September 2005. This showed a congenitally narrow spinal canal with a mild acquired stenosis at L5/S1 with no neural impingement.
16 Following subsequent reviews, Mr Kudelka expressed the opinion to Dr Bonwick that the plaintiff was fit for light duties avoiding strains on his back. As the plaintiff had indicated that he might like to work as an assessor in relation to motor repairs, Mr Kudelka felt that re-training in some other aspect of the motor repair industry not involving physical strains on the back would be appropriate. He took the view that the plaintiff’s present and future capacity for work (as at 20 March 2007) was unlikely to be as a panel beater where physical strains were required, but thought that the plaintiff may be able to work as a supervisor or assessor or in office and administrative work. In summary, he felt that the plaintiff could perform suitable restricted duties.
17 The plaintiff attempted paperwork duties with the defendant, but did not cope very well. There was also some friction between the plaintiff and members of the defendant, which was a family run business. The plaintiff has alleged that there was criticism of him and some abuse of the rehabilitation provider and the physiotherapist when they attempted to assess suitable duties.
18 In late 2005, the plaintiff undertook a re-conditioning course in St Albans and a gymnasium course at the Coburg Leisure Centre. In 2006, he booked in for a course with a view to becoming an assessor, but this course was cancelled due to a shortage of applicants.
19 In February 2006, the plaintiff again returned to work with the defendant performing light duties on a graduated return to work basis, commencing with three hours per day by three days per week. He suffered increasing symptoms, and required further time off. After a further resumption, his working hours were increased to four hours per day by three days per week. He missed some more time, and also became frustrated about his failure to improve. He took anti-depressant medication and saw a psychologist on a number of occasions. By October 2006, he was performing five hours work per day, three days per week, but he also began to develop some stomach problems as a result of medication. He changed psychologists, continuing to see his new psychologist, Ms Evers, regularly over the next 12 month period.
20 Due to the lack of progress, in January 2007 the plaintiff ceased seeing Dr Bonwick and commenced seeing Dr Dowd. Dr Dowd found tenderness directly over the plaintiff’s L5/S1 disc, and prescribed various medications including Mersyndol Forte. He certified the plaintiff as being unfit for work and organised another MRI scan which showed no change from the previous one. On 26 February 2007, he certified the plaintiff as being able to resume work on light duties at reduced hours. Dr Dowd expressed the view in a report of 22 March 2007 that the plaintiff had struggled to cope with the work duties and hours, but was prepared to continue at his present level. Dr Dowd did not envisage being able to increase the hours for the foreseeable future.
21 Reporting again in November 2009, Dr Dowd stated that the plaintiff had only required a small number of days off work over the last months, and continued with physiotherapy which helped him cope. The plaintiff had continued to experience occasional mild exacerbations of the back pain. I should add that Dr Dowd, in his oral evidence, explained that, by this remark, he had attempted to convey that the plaintiff had constant and chronic back pain, and it was the increase in pain over and above that level which constituted the occasional mild exacerbations. As he said in the witness box, there was a constant level of pain with flare-ups from time to time on top of that. Indeed, that is consistent with observations contained in his report of 19 April 2010. In that report, Dr Dowd observed that the plaintiff continued to experience chronic lower back pain and stiffness, with occasional brief exacerbations. In that report, he also expressed the view that the plaintiff was largely coping with his current modified work duties, and continued to need regular physiotherapy. He also stated that the plaintiff needed ongoing counselling in relation to weight management and reactive depression issues, both of which he saw as being direct consequences “… of having unrelenting back pain, and a limited capacity to exercise”. Dr Dowd expressed the view that the plaintiff’s condition was extremely unlikely to improve in the foreseeable future, and that treatment was “primarily to help him keep coping with his current level of disability”. Aspects of Dr Dowd’s oral evidence shall be discussed subsequently in my ruling.
22 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff upon referral from Dr Dowd on 6 May 2009, reviewing him on 29 July 2009. Dr Clayton Thomas diagnosed injury to the lower lumbar spine and felt that the pain arising from that region “may have a facet joint component to it, in addition to pain arising from the anterior aspect of the spinal level being the disc level”. Dr Clayton Thomas felt that the injury was consistent with the stated cause, and that the plaintiff working 20 hours per week was feasible and appropriate. In his report of 12 October 2009, he expressed the opinion that working beyond 20 hours per week would potentially increase the lower back pain, leading to an escalation in physical disability and placing the plaintiff off work. Therefore, overall, he felt that 20 hours per week was reasonable and that the prognosis was for the persistence of pain and disability.
23 The plaintiff has also been examined by a number of doctors and specialists for medico-legal purposes. Dr Robyn Horsley, occupational physician, examined the plaintiff at the request of his solicitors. She noted that, on the visual analogue scale, the plaintiff assessed his chronic back pain as being, most of the time, seven/eight out of ten. Having carried out a clinical examination of the plaintiff, this occurring on 8 October 2009, and having examined the radiological investigations, Dr Horsley diagnosed aggravation of pre-existing degenerative change in the lower lumbar spine. She believed that the plaintiff’s symptoms were likely to persist, and that there were a considerable number of restrictions which would apply in relation to work. She noted that he was currently coping with his work of 20 hours per week with Wednesdays off, and believed that his capacity for work was partial and permanent. Dr Horsley reported again on 12 April 2010 following the sending of further material to her, but did not re-examine the plaintiff. Her conclusion after viewing the further documentation, including reports from Dr James Rowe and Mr Michael Shannon, was that she did not believe that the plaintiff would be able to increase his working hours beyond 20 as a panel beater, and expressed the view that further energy needed to be put into vocational assessment and upgrading skills to allow him to move into a more sedentary role in the longer term. She concluded that his work capacity in the foreseeable future as a panel beater was limited to his current 20 hours per week provided he had assistance for heavier tasks from an apprentice.
24 Associate Professor Myron Goldwasser, orthopaedic surgeon, examined the plaintiff at the request of his solicitors on 25 February 2010. Professor Goldwasser had a large amount of documentary material available to him. His diagnosis was of an injury to the plaintiff’s lower back with persistent pain and stiffness, the injury probably being aggravation of pre-existing degenerative changes in the lumbar spine. Professor Goldwasser concluded that the plaintiff’s condition had largely stabilised and would continue for the foreseeable future. He noted that the plaintiff was capable of managing modified duties 20 hours per week, which he was doing, and had tried working increased hours unsuccessfully. Professor Goldwasser considered that incapacity to be permanent with intermittent exacerbations. Professor Goldwasser also formed the impression that the plaintiff was well-motivated in relation to working restricted duties and was a credible witness.
25 The plaintiff was assessed by a Medical Panel which gave a Certificate of Opinion on 2 February 2008. The Panel was constituted by Mr Steven Leitl, Dr Nick Paoletti, and Dr Andrew Newman-Morris. The Panel expressed the opinion that the plaintiff was likely to continue indefinitely to be incapable of undertaking further or additional employment or work because of his injury. I appreciate that opinions expressed by a Medical Panel are not binding in a case such as this, but are admissible as part of the general medical evidence.
26 The plaintiff has been examined by a number of medical practitioners at the request of the defendant’s solicitors. Dr Michael Baynes, occupational physician, examined the plaintiff on 3 May 2005 and 30 May 2006. Originally he assessed the plaintiff as suffering a soft tissue injury to the lumbar spine, and expected settlement of symptoms within a few weeks. However, he stated that the plaintiff was not fit for pre-injury duties, but was fit for work where there was no heavy lifting greater than ten kilograms and no continuous work with constrained postures. Following his second examination, Dr Baynes diagnosed chronic lumbar back pain in association with pre- existing facet joint degenerative change at L5/S1 and mild lumbar disc degeneration at L5/S1. He believed that work continued to be a material contributing factor to the injury, and that the plaintiff was not fit for his pre- injury duties and continued to have the restrictions previously mentioned. He was hopeful of some improvement.
27 Dr James Rowe, specialist occupational physician, has provided three reports to the defendant, these following examinations on 26 June 2007, 4 February 2009 and 9 March 2010. Originally he diagnosed aggravation of underlying degenerative process, but otherwise commented more upon return to work plans. Initially he felt that the prognosis was good, and that the plaintiff should not be left with any permanent long-term impairment related to his employment. He regarded the back pain as having multiple causes. Following his examination in February 2009, he again diagnosed exacerbation of underlying degenerative process, but felt that work was still a material contributing factor. He was of the view that the plaintiff’s pain was not well controlled and, in relation to a question as to the plaintiff’s current work capacity, he noted that he was back at work but not coping with increased hours. Dr Rowe stated that the plaintiff could work part-time. Following his most recent examination, Dr Rowe expressed the view that the plaintiff had no real functional overlay and did not strike the doctor as exaggerating his condition. Dr Rowe also stated that “… he is working half time and has been doing that for years and that is probably about his capacity”. He suggested that, with some re-training and re-education, the plaintiff might be able to work full-time in a position that did not require lifting. He considered some jobs such as a vehicle accessory fitter or a retail sales assistant or service station attendant to be within the plaintiff’s capacity, but also expressed the view that a work site visit might be useful.
28 Dr Victor Botvinik, consultant psychiatrist, examined the plaintiff at the request of the defendant and reached the conclusion that the plaintiff did not demonstrate any diagnosable, identifiable mental disorder and believed that he presented as a mentally healthy person.
29 Dr Timothy Entwisle, consultant psychiatrist, also so examined and has provided a report dated 14 January 2009 in which he diagnosed an adjustment disorder with depressed and anxious mood, but also stated that the plaintiff was not incapacitated for employment from a psychiatric perspective. He noted that the plaintiff was keen to continue to perform his panel beating duties.
30 Mr Michael Shannon, orthopaedic surgeon, has seen the plaintiff on two occasions at the request of the defendant. Following his examination of 12 January 2009, Mr Shannon expressed the view that the plaintiff was suffering from degenerative change and congenital spinal canal stenosis in the lumbar spine which may well have been aggravated by the plaintiff’s work and particularly by the relevant incident of injury. He felt that work as a panel beater had the potential to aggravate the plaintiff’s back condition. He stated that:
“I think that if he is able to avoid significant bending and lifting, he is capable of increasing his hours of work, although I understand that the Medical Panel has assessed him as working at his maximum capacity.”
Mr Shannon did not feel that there was any significant functional overlay, and believed that the plaintiff had the capacity to graduate to full-time work providing appropriate restrictions were imposed. He felt that work as a vehicle dismantler or vehicle accessory fitter would be significantly demanding, but that the plaintiff may be able to work in sales or as a service station attendant. Following an examination on 15 February 2010, Mr Shannon stated that the plaintiff’s condition, which consists of lumbar disc degeneration with disc bulging and mild to moderate spinal canal stenosis, had essentially stabilised, and was of the view that the plaintiff could probably increase the number of hours during which he was performing light work. His report concluded with the somewhat ambiguous statement that:
“I still think that he is capable of increasing his hours of work, but he would claim that he is not able to and this was the opinion of the Medical Panel.”
31 The balance of the medical opinion would seem to be that, in the incident of injury, the plaintiff aggravated pre-existing degenerative changes in his lumbar spine. I accept that, and I also accept that, prior to the incident of injury, the plaintiff was largely symptom-free. Given what has been said in the authorities, it is the condition as aggravated which I am to take into account. Accordingly, and given the plaintiff’s history, I am of the view that the pain, restrictions and consequences of impairment suffered by the plaintiff arose and resulted from the incident of injury. I am also of the view that the incident of injury still contributes significantly to the plaintiff’s present condition and to those consequences, and there is little, if anything, in the various medical assessments to the contrary. The concept of temporary aggravation was not one upon which the defendant based its case in any meaningful way.
32 Whilst the plaintiff has exhibited some symptoms of a psychological or psychiatric nature and has had treatment in this regard, I am not of the view that such factors play a role of any significance in relation to his capacity and symptoms. I refer again to the conclusion of the consulting psychiatrists who examined him on behalf of the defendant, as well as the observations of Mr Shannon and Dr Rowe. Factors of a psychological or psychiatric nature shall be disregarded, but I am not of the opinion that they are of any great magnitude or have any significant bearing upon the issues to be determined.
33 I am also of the opinion that the plaintiff’s symptoms, restrictions and consequences of impairment are permanent within the meaning of the Act in that they will persist for the foreseeable future. Professor Goldwasser has stated that the plaintiff’s incapacity for work is likely to be permanent. The prognosis of Dr Clayton Thomas was of persistent pain and disability “going forward”. Mr Shannon stated that the plaintiff’s condition has essentially stabilised. Dr Dowd has stated that the plaintiff’s condition is extremely unlikely to improve for the foreseeable future, whilst Dr Horsley has stated that the plaintiff’s capacity for work is partial and is permanent and will last into the foreseeable future. Accordingly, it seems to me that the plaintiff’s impairment and its consequences are permanent within the meaning of the Act.
The plaintiff’s employment and other developments since the incident of injury
34 The plaintiff’s history of employment since the occurrence of the injury has already been partially discussed above. Further aspects of the plaintiff’s progress in that regard are that by July 2007 he was working five hours per day, three days per week. Towards the end of 2007, he attempted to increase to 22 hours per week, but found this to be too much. Thereafter he worked four days per week, five hours per day, with Wednesdays off. That continues to be the case, the plaintiff still being employed by the defendant. The only attempt by the plaintiff at re-training for some other position occurred, as stated, in 2006 when he enrolled in a course to train as an assessor, but the course was cancelled.
Ruling
(a) Pecuniary loss damages 35
I am satisfied that the plaintiff has discharged the burden of proof in relation to his application for leave to bring proceedings in respect of pecuniary loss damages. He has satisfied the requirements of s.134AB(38)(e) and (f) of the Act and s.134AB(38)(g) does not operate so as to defeat his application.
36
In relation to the requirements of s.134AB(38)(e) and (f), the following is to be noted. The parties have agreed upon the plaintiff’s “without injury” earnings in the sum of $72,632 gross per annum. The plaintiff’s “with injury” earnings as at the date of hearing are $577 gross per week which, when annualised, is a figure of $30,004 gross. Whilst the plaintiff is receiving $1,059 gross per week because of a “top up” by reason of what appears to be a weekly payment of compensation in respect of the injury, the additional amount is irrelevant for the purposes of this calculation, as it is not income derived from personal exertion. Of course, the fact that weekly payments of compensation continue to be made is, if established, something which may have the potential to be relevant – see the decision of the Court of Appeal in Ansett Australia Limited & Anor v Taylor [2006] VSCA 171. The plaintiff was also cross-examined concerning his total income in the context of motivation. However, leaving that additional income to one side, if the figure of $30,004 truly represents the plaintiff’s earning capacity, then the financial loss to him after the relevant comparison is made would exceed 58 per cent. Thus, in essence, the only way in which the defendant can succeed is to establish either that the plaintiff is capable of working sufficient extra hours in his present occupation to reduce the financial loss to 40 per cent or less, or that he has the capacity to do this in some other suitable employment for which he presently has the capacity or for which he can be re-trained. I do not accept either of these propositions for the following reasons, which are not listed in order or importance.
(a)
A combination of the plaintiff’s own evidence, the impression that he has made and the medical evidence which I prefer leads me to the conclusion that the plaintiff is not capable of working additional hours on restricted duties as a panel beater. When he attempted to do this, he was unsuccessful. The plaintiff gave evidence that, “I struggle to get by my 20 hours” and, when it was put to him that he had not sought to increase from 20 hours per week for the last couple of years, his response was, “I can’t”. I regard the plaintiff as a credible, reliable and well-motivated person, and I accept his evidence in this regard. Furthermore, it coincides with the following medical evidence:
Dr Horsley – “I believe that his work capacity in the foreseeable future as a Panel Beater is limited to his current 20 hours per week provided he has assistance for the heavier tasks with an Apprentice”.
Dr Clayton Thomas – “When I saw him, I was impressed that he remained at work 20 hours per week. This seemed to be feasible and seemed to me to be the appropriate balance for him. I accept that working beyond this would potentially increase the lower back(sic) leading to an escalation of his physical disability and place him off work and therefore I felt that, overall, 20 hours per week was reasonable”.
Professor Goldwasser – “He is capable of managing modified duties 20 hours a week, which he is presently doing”.
Dr Rowe – “He can probably work say 20 hours a week as a panel beater, but if he increases his hours he will have increasing back pain … He can work part-time, say 20 hours a week and I think that is about his limit working as a panel beater …”.
Dr Dowd originally expressed the view that, “I expect that he will not be able to cope with anything more than 20 hours per week (five hours Monday, Tuesday, Thursday & Friday), and that he should not be required to perform major smash repairs or filler work”. In cross- examination, Dr Dowd stated that he had never felt that the plaintiff was sufficiently improved to the point where he would be able to consider increasing his hours again. His evidence in relation to possible increased hours in light of the plaintiff’s playing pool was somewhat ambivalent. He stated that, if the plaintiff informed him of the fact that he was coping with pool playing, he would have felt more inclined to suggest an increase in work hours. When further details concerning the limited amount of time which the plaintiff in fact spent playing pool were put to him, he stated that perhaps that amount of pool playing would be less stressful on the plaintiff’s back than the stresses encountered in a normal five hour working day on limited duties. He said that on each occasion that he saw the plaintiff he would discuss with him various aspects of what is required and how he is coping in order to see if the plaintiff felt capable of increasing his hours. However, he also said that he had become more and more pessimistic about the plaintiff’s capacity to improve and treatment has been more about trying to keep him going as he is, which includes coping with the type of work which he is doing. In re-examination, when considerable details concerning the plaintiff’s pool playing activities were put to Dr Dowd, he stated that:
“I still don’t think it’s an ideal form of recreation, but it is obviously important to him and he pushes himself through his pain, so that he can cope, although he obviously isn’t doing it as much as he previously would have, and to a certain extent that is the way he pushes himself with his current work. That he is one of the few clients I would have had that has continued to battle through their pain and continue working and not give up on work. That is because he is a hell of a lot more motivated to keeping going than most patients I’ve dealt with in my 20 years”.
When Dr Dowd’s evidence is analysed, it seems to me that he is saying no more than that he would inquire as to how the plaintiff was coping with both work and pool playing and then consider the situation. He was not saying that the plaintiff was capable of increasing his hours of work, and indeed his answer in re-examination seems clearly supportive of the plaintiff, particularly in relation to his motivation for work.
Mr Shannon stated that, to the plaintiff’s credit, he has continued to work 20 hours per week as a panel beater on light duties, but thought that the plaintiff was probably capable of increasing those hours. He did not say to what extent or by what degree, and, as earlier pointed out, his ultimate conclusion was stated in a somewhat ambivalent fashion.
However, I am persuaded by the bulk of the medical evidence along with the impression which I have formed of the plaintiff. I accept his evidence and I accept that he is not capable of performing his present modified duties for more than 20 hours per week, and that will continue to be the situation for the foreseeable future.
(b)
In addition, I am not persuaded that the plaintiff has the capacity, even with re-training, to perform any of the suggested alternative jobs on a full-time basis. Some of the employments that were suggested to him, and are contained in the vocational assessment reports organised on behalf of the defendant, are not suitable for him at all. For example, Mr Shannon, perhaps the strongest supporter of the defendant’s position in this case and the only surgeon examining on its behalf, in his report of 15 January 2009 effectively eliminated the positions of vehicle dismantler and vehicle accessory fitter on the basis that they were probably also significantly demanding, although he may have been leaving open the possibility of part-time employment in these. He thought that the plaintiff might be able to work in sales or as a service station attendant. Dr Dowd stated that he would have considerable concerns in relation to any occupation that required repeated bending to get under cars, under dashboards, leaning across engines and the like. Thus, at least in regard to work on a full-time basis, he effectively agreed with the views of Mr Shannon. In relation to work as a car assessor, Dr Dowd stated that if the plaintiff was to do his job conscientiously, he would not be able to cope with very much of such work before his back got worse. Dr Dowd had concerns in relation to the plaintiff’s ability to engage in retail sales because the plaintiff was in chronic pain and on analgesics, and he was also concerned in relation to the plaintiff having to stand for lengthy periods if this was required. He was also of the view that work as a service station attendant posed problems. In cross-examination, he stated that:
“I would be surprised if he would be able to cope with fulltime in any of the occupations that we have been talking about”, and
“I would be surprised if he would be able to cope with any
form of work on a fulltime basis.”
I have already quoted from the report of Dr Clayton Thomas in respect of the number of hours of work of which the plaintiff is capable. I would also repeat that Professor Goldwasser stated that the plaintiff was capable of managing modified duties for 20 hours per week.
In summary, it is my opinion that the plaintiff is not fit for full-time work in any of the other occupations which have been suggested and which were put to him, or, indeed, at all. I accept that he is permanently restricted to part-time work on modified duties or within certain physical restrictions, and that his present regime of 20 hours per week or thereabouts, spread in the manner in which it is, represents the limit of his capacity.
If that be so, the financial loss resulting from the decrease in his earning capacity in alternative occupations would exceed 40 per cent by an even greater margin than the current loss which the plaintiff is suffering as a part-time panel beater. That is because the “without injury” income figure exceeds the maximum income payable in any of the suggested alternative employments. Taking the most generous view of the current wage details introduced by the defendant after the closure of oral evidence, the highest annualised income for any of these alternative positions (other for an assessor) would be that for a vehicle dismantler, and this would be $46,800, based on an estimate of $900 per week. Even if the plaintiff were capable of working, say, 75 per cent of normal time, the result would be $35,100. This is well below the 60 per cent “cut off line” of $43,579. The plaintiff would still have discharged the burden of proof, even if one makes no allowance for the fact that the figure of $900 per week, introduced in no greater detail, appears to represent an increase in excess of 45 per cent over the figure of $620 per week which the vocational assessor, Nabenet, stated was the wage paid as recorded by that entity in its report of 7 June 2007. Indeed, the second highest paid position of retail sales assistant (which seems also to have undergone a dramatic percentage increase since June 2007) is such that, even if the plaintiff worked in such a position full-time, his financial loss would still exceed 40 per cent. The position of assessor was not considered by Nabenet when listing suitable employment options in its report of 7 June 2007. Nabenet’s very recent letter, responding to a request from the defendant’s solicitors dated 23 April 2010, contained the assertion that an assessor would receive $1,035 per week. However, very few details are given. Annualised, this would be $53,820, a figure still well below the “without injury” earnings. By my calculations, even if the plaintiff worked 30 hours per week in this occupation, which I consider to be well and truly beyond him, his income would still fall below the “cut off line”. In any event, I would refer again to the evidence of Dr Dowd who was specifically asked as to the plaintiff’s capacity to work as an assessor, and stated in essence that the plaintiff would not be able to cope with very much of it before his back got worse. The plaintiff’s own opinion was that he could not do more than 20 hours per week of the type of work which assessors do. I accept that. Clearly, doing such work for those hours would produce a reduction in income well in excess of 40 per cent.
In summary, as with the proposition in relation to increased hours discussed above, the figures and the evidence lead to the conclusion that the plaintiff has discharged the burden of proof and that the requirements of s.134AB(38)(e) and (f) have been met.
(c)
I am not impressed by arguments based upon the plaintiff’s motivation. I do not accept that he could be working more hours but for a lack of motivation. I have already referred to the favourable impression which he created in this regard, and to the powerful remarks made by Dr Dowd in relation to the plaintiff’s motivation. In addition, Professor Goldwasser has described the plaintiff as being keen to return to his work and as giving the impression that he was well motivated and grateful for the opportunity of continuing work even though this involved restricted duties. Dr Clayton Thomas was impressed at the manner in which the plaintiff remained at work. The plaintiff strikes me as a particularly well motivated man.
(d)
Arguably a factor that has the capacity to lend some support to the proposition that the plaintiff remains partially incapacitated for employment is that he apparently continues to receive weekly payments of compensation at the rate appropriate for a partially incapacitated worker. I would refer again to the decision in Taylor. As submitted by Mr McKenzie, the fact that payments of this nature may be made is not conclusive, but “it’s simply something to go into the mix”. In the present case I have found in any event that the plaintiff is not fit to perform full-time work in suitable employment.
37 I am also of the view that s.134AB(38)(g) does not operate to the detriment of the plaintiff. The plaintiff’s motivation is excellent. He is exercising his capacity to engage in suitable employment to its limit. I refer to what has been set out above.
38 The plaintiff having satisfied the requirements of s.134AB(38)(e) and (f), it is then not necessary for me to consider whether he has also met the requirements of the “very considerable” tests in relation to pecuniary loss. However, were it necessary, that would also be my ruling. The plaintiff has already suffered substantial financial loss and that will continue into the foreseeable future.
(b) Pain and suffering damages 39 Bearing in mind the decision of the Court of Appeal in Advanced Wire Cable Pty Ltd & Anor. v Abdulle [2009] VSCA 170 and various decisions of this court, the plaintiff having established that he is entitled to leave in relation to pecuniary loss damages means that he is also successful in relation to leave to pursue pain and suffering damages. As was said in Abdulle: “A plain reading of s 134AB permits a plaintiff who satisfies the loss of earning capacity requirements of that section to claim damages for both loss of earning capacity and pain and suffering.” I might add that, given the plaintiff’s age, the pain and restrictions which he has suffered to date and the fact that he will continue to suffer them for the foreseeable future would lead me to the conclusion that he has satisfied the “very considerable”, test were it necessary for me to be so satisfied.
Conclusion
40 The plaintiff is successful. He has discharged the burden of proof in relation to leave to bring proceedings for both pecuniary loss damages and pain and suffering damages. I shall hear the parties as to any ancillary orders that are required.
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