Parsons v Victorian WorkCover Authority
[2016] VCC 1361
•16 September 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04767
| OWEN PARSONS | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 August 2016 | |
DATE OF JUDGMENT: | 16 September 2016 | |
CASE MAY BE CITED AS: | Parsons v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1361 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application - injury to the right shoulder – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; RJ Gilbertson v Skorsis [2000] VSCA 51; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170
Judgment:Leave granted in respect to pain and suffering and loss of earning capacity damages
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Mr G Pierorazio | Arnold Thomas and Becker |
| For the Defendant | Ms N Wolski | Russell Kennedy |
HER HONOUR:
Preliminary
1 The plaintiff worked for the defendant as a spray painter. He claims to have suffered injury to his right shoulder as a consequence of the nature of these duties. The period of employment relied upon is March to December 2009 (“the 2009 injury”). The plaintiff also claims his shoulder was injured on 12 November 2009, when he was required to assist in the lifting of a tray off a truck. (‘the lifting incident”)
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for both pain and suffering and loss of earning capacity.
3 Mr Jonathan Brett QC of counsel appeared with Mr Gino Pierorazio for the plaintiff and Ms Nikki Wolski of counsel appeared for the defendant.
4 The plaintiff claims he suffered injury to his right shoulder. The body function said to be lost or impaired is the right arm.
5 The plaintiff was called to give evidence and was cross-examined. Numerous medical reports and other documents were also tendered in evidence. I have read those tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions referred to in this Judgment.
6 The plaintiff has the burden of proving the impairment of his right shoulder is both serious and permanent. The test for serious injury is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment and its consequences.
Relevant background
7 The plaintiff is 45 years of age. He is divorced and has no children. Until recently the plaintiff lived alone, but now lives with his mother.
8 The plaintiff attended Broadmeadows West Technical School until he was 16 years of age. The plaintiff experienced learning difficulties while at school, such that he was referred to the Royal Children’s Hospital and diagnosed with dyslexia at about 10 or 12 years of age.[1]
[1]Transcript (“T”) 34, Line(s) (“L”) 18-22, Plaintiff’s Court Book (“PCB”) 92
9 After leaving school, the plaintiff did a spray painting apprenticeship. During that time he attended classes every six weeks. He said that most of the classwork was practical, and that only a small amount of theory was involved.[2]
[2]T17, L1-5, PCB 11
10 The plaintiff then worked as a qualified spray painter, for different employers, until the time he suffered his injury the subject of this claim.
11 On or about 16 April 2007, the plaintiff suffered injury to his right shoulder, in the course of his employment with Haygans Panels Preston Pty Ltd (“the 2007 injury”).
12 On 18 April 2007, the plaintiff attended general practitioner, Dr Riaz Dewani. The plaintiff was referred for physiotherapy treatment and prescribed Panadeine Forte.[3]
[3]Defendant’s Court Book (“DCB”) 133
13 On 4 May 2007, an ultrasound was performed on the plaintiff’s right shoulder, which demonstrated a partial thickness tear of his supraspinatus tendon.[4]
[4]PCB 98
14 On 15 June 2007, the plaintiff underwent an x-ray of the right shoulder, which reported no abnormality in the bone or joint, and no soft tissue calcification or evidence of rotator cuff degeneration.[5]
[5]PCB 99
15 Soon after, the plaintiff was referred to orthopaedic surgeon, Associate Professor Miron Goldwasser. He recommended that the plaintiff continue with exercises and physiotherapy and avoid vigorous use of his right arm.[6]
[6]PCB 87
16 On 10 July 2007, the plaintiff underwent an MRI scan of the right shoulder, which was reported as normal, aside from minor cuff tendonitis.[7]
[7]PCB 100
17 In his report dated 28 May 2010, Associate Professor Goldwasser considered that the plaintiff had suffered an injury to his right shoulder consistent with an episode at work in April 2007. As at July 2007, he considered that while the plaintiff was not ready for his normal duties, or for vigorous use of the right shoulder, he considered the plaintiff would be able to cope with lighter duties which did not place a heavy stress on his right shoulder.[8] Associate Professor Goldwasser hoped that conservative treatment would be sufficient, and he did not recommend surgery.[9]
[8]PCB 88 and 89
[9]PCB 89
18 Following the 2007 injury, the plaintiff remained off work for four months, before returning on light duties. After three months, the plaintiff resumed his pre-injury duties on a full-time basis. However, his employment was terminated at that time. The plaintiff was then unemployed for six weeks.
19 The plaintiff then commenced employment with Top Tech Panels. Top Tech was acquired by Nomikos Pty Ltd, the defendant in this proceeding, in about March 2009. The plaintiff was thereafter employed by the defendant. At the time he commenced his employment with the defendant, the plaintiff still had some limited symptoms in his right shoulder, and experienced “a little pain every now and then.”[10]
[10]PCB 12
20 After suffering the 2007 injury, the plaintiff obtained a gym membership as part of his rehabilitation. He undertook gym work, as well as swimming and he was able to do freestyle and backstroke.[11] The plaintiff enjoyed working on old cars, his favorite being an HX Holden Premier V8. He also enjoyed fishing, and the occasional game of golf. He said he carried out various tasks in his garden, including maintaining a large fernery.
[11]T39, L11-14
The injury and its consequences
21 In March 2009, the plaintiff commenced employment with the defendant as a spray painter. Throughout the period of March to November 2009, the plaintiff observed a change in the nature of the work he was required to perform. Aside from an increased workload and greater time demands, the plaintiff claimed that he was also required to lift and carry car body parts.[12]
[12]PCB 12 and 13
22 On 12 November 2009, the plaintiff was asked to assist in the lifting of a steel alloy tray. That tray had had been removed from the vehicle to perform repairs, and it had two large tradesman’s tool boxes padlocked to it. Whilst moving this tray, the plaintiff said he “felt something go”[13] in his right shoulder.
[13]PCB 13
23 On 3 December 2009, the plaintiff attended the Westmeadows Medical Centre and consulted general practitioner, Dr David Lee. He was referred for an x‑ray and ultrasound of his right shoulder. The x-ray revealed no abnormality, but the ultrasound demonstrated a partial tear of the supraspinatus tendon.[14]
[14]PCB 102
24 Following the lifting incident, he plaintiff continued working at the defendant’s premises. He then had two weeks off between Christmas 2009 and early January 2010. The plaintiff said that when he returned to work he provided a certificate of capacity, for light duties.[15] Shortly after his return, the plaintiff said that his employment was terminated.[16] The plaintiff has not worked since that time.
[15]T13, L1-4
[16]T13, L7-9
25 In 2010 and 2011, the plaintiff regularly obtained physiotherapy treatment.
26 In April 2011, the plaintiff was referred back to Associate Professor Goldwasser. At that time, Associate Professor Goldwasser considered the plaintiff would be better suited to light duties, not requiring vigorous use of his right shoulder.
27 On 11 July 2011, the plaintiff underwent an ultrasound-guided right supraspinatus bursa injection at the Royal Melbourne Hospital.[17]
[17]PCB 14
28 In September 2011, the plaintiff was referred to orthopaedic surgeon, Mr Brett Jackson.
29 On 1 May 2012, the plaintiff underwent a surgical procedure performed by Mr Jackson, involving an arthroscopic subacromial decompression, bursectomy and repair of the superior labral tear.
30 Following the surgery, the plaintiff attended Mr Jackson on several occasions. In a medical report dated 28 February 2013, Mr Jackson referred to the improvements which the plaintiff made over time, such that by 16 November 2012, Mr Jackson recorded the plaintiff had good rotator cuff strength and he could move his right shoulder within 10 degrees of normal forward flexion and abduction.[18]
[18]PCB 46
31 On 14 October 2013, an ultrasound and x‑ray was performed on the plaintiff’s right shoulder. Both were reported as normal.
32 Following a further review on 29 October 2013, Mr Jackson noted the plaintiff was moving his right shoulder well, with no irritability and an intact biceps tendon. When this history was put to the plaintiff in cross-examination, he said he could not remember telling Mr Jackson that his right shoulder moved well with no irritability.[19]
[19]T 26, L 19-31
33 The plaintiff has continued to consult general practitioners at the West Meadows Medical Clinic. At times he has seen Dr Lee, but he has predominantly consulted Dr Ban Jamel. In a report dated 1 March 2016, Dr Jamel stated the plaintiff had mild to severe restriction of movement when doing things such as lifting and repetitive overhead activity. He stated that the plaintiff’s right shoulder injury was such that he was unable to continue with his regular work duties and that it had also affected his daily activities.[20]
[20]PCB 59
34 The records of the Westmeadows Medical Centre indicate that on multiple occasions the plaintiff had obtained pain prescription medication including Panadeine Forte, Mobic and Norspan patches.[21] The records indicate that such prescriptions were given in respect of his right shoulder pain, although at times Panadeine Forte was also prescribed for unrelated medical conditions including toothache.[22]
[21]Exhibit 2 - Plaintiff medical records from the Westmeadows Medical Centre dated 12 May 2009 to 2 February 2016, and 24 December 2015 to 11 August 2016
[22]Exhibit 2
35 The plaintiff ceased receiving physiotherapy treatment in approximately 2014, when the insurer terminated the payment of such expenses. Since then, he has only obtained chiropractic treatment from Ms Anthea Jacovou. The plaintiff receives five chiropractic sessions per year.
36 Ms Jacovou noted that, over time, the plaintiff’s right shoulder injury and neck ache, had responded well to chiropractic treatment. However, when this history was put to the plaintiff, he did not agree with it. He said that while his neck pain had improved with chiropractic treatment, his right shoulder pain had not. The plaintiff said that he attained only short term relief from the pain in his right shoulder, which lasted from between two weeks, up to one month.[23]
[23]T28, L1-8, T70, L20-25
37 The plaintiff’s solicitors arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Ash Chehata, in April 2016. Mr Chehata obtained a history from the plaintiff as to the 2007 injury. He recorded that it took the plaintiff six months to recover, noting that his shoulder “was not completely normal and had intermittent symptoms.”[24] Mr Chehata noted that following the 2007 injury, the plaintiff returned to his normal pre-injury duties.
[24]PCB 65
38 Mr Chehata then obtained a history from the plaintiff as to the work he performed with the defendant, including the lifting incident.
39 Mr Chehata diagnosed the plaintiff as suffering a right shoulder injury, initially in 2007, causing bursitis and a small rotator cuff tear, which was then aggravated in 2009, causing a SLAP tear as well as surrounding bursitis. Mr Chehata noted that the injury had been treated surgically, but had failed to completely resolve.
40 Mr Chehata was of the opinion that the plaintiff’s right shoulder injury prevented him from returning to his pre-injury employment as a spray painter. He stated:
“As a spray painter he is required to perform repetitive duties of abduction, adduction, external and internal rotation in various positions, and unfortunately he is unable to perform this, even on multiple occasions throughout the examination, and therefore, you will clearly be unable to perform these preinjury duties at any pace in an employment setting.”[25]
[25]PCB 68
41 Further, Mr Chehata felt that the plaintiff was not suited to any alternative employment given his poor education levels, dyslexia and his lack of experience in any vocation other than spray painting. Mr Chehata commented that the plaintiff would face difficulties due to his lack of strength, restriction in range and ongoing pain in his right shoulder.[26]
[26]PCB 68
42 The plaintiff’s solicitors also arranged for the plaintiff to be examined by occupational specialist, Dr David Eaton, in May 2016. Dr Eaton provided a detailed report, outlining the physical restrictions he considered the right shoulder injury imposed on the plaintiff. These were as follows:
· No driving more than two hours at a time, as repeated shoulder movement increases the plaintiff’s symptoms;
· No climbing ladders, as he cannot rely on his right arm and therefore cannot maintain three points of contact;
· No reaching forward;
· No reaching above shoulders;
· No lifting more than 7 kilograms, with the load close to the torso;
· No lifting more than 1 kilogram, with the load more than 30 centimetres from the torso;
· No pushing or pulling with more than 10 kilograms of force (eg trolleys).[27]
[27]PCB 79
43 Dr Eaton had express regard to the plaintiff’s difficulties with reading comprehension, spelling and short-term memory, and concluded that in conjunction with the plaintiff’s physical restrictions, the plaintiff had no current work capacity and that this situation was likely to continue indefinitely.[28]
[28]PCB 82
44 The plaintiff’s solicitors also arranged for the plaintiff to be examined by neuropsychologist, Ms Nola Ross. Ms Ross performed a neuropsychological assessment on the plaintiff after which she concluded that the plaintiff’s word recognition was equivalent to mid-primary school level and that his spelling skills were equivalent to a lower primary level. Ms Ross noted the plaintiff had deficits in short-term auditory processing of numbers. She also noted that the plaintiff had difficulty organising his answers to questions and his abstract verbal reasoning was limited. Ms Ross concluded that the plaintiff’s work prospects were limited by his learning difficulties.[29] Having considered this report, I am satisfied that the plaintiff has significant learning difficulties.
[29]PCB 94
45 The defendant arranged for the plaintiff to be examined by occupational physician, Dr Dominic Yong, in March 2011 and February 2016. In his first report dated 28 March 2011, Dr Yong referred to the 2007 injury. He then obtained a history as to the faster paced work which the plaintiff was required to perform with the defendant from April 2009. Dr Yong then noted that the plaintiff was sacked in January 2010 and had not worked since that time. Dr Yong was guarded as to whether the plaintiff would be able to return to his pre-injury duties and hours.
46 The plaintiff was re-examined by Dr Yong in February 2016. At that time, Dr Yong commented that there were no inconsistent findings on examination, and no functional overlay.[30]
[30]Defendant’s Court Book (“DCB”) 26-27
47 Dr Yong considered the plaintiff had a current capacity for work within the following restrictions:
· avoid right arm repeated above shoulder height tasks or reaching duties;
· avoid right arm repeated firm pushing or pulling;
· avoid lifting more than 5 kilograms on a repeated basis;
· initial reduction in working hours.[31]
[31]DCB 27
48 The defendant also arranged for the plaintiff examined by orthopaedic surgeon, Mr Peter Kudelka in May 2012, shortly after he had undergone right shoulder surgery. At that time, Mr Kudelka stated that the plaintiff could not return to his pre-injury duties as a spray painter, but that he could perform alternative duties, avoiding excessive strains on his right arm, and accommodating restricted use of his right arm at or above the horizontal.[32] Mr Kudelka felt the plaintiff would have the capacity to perform such suitable employment within approximately four to eight months.[33]
[32]DCB 49
[33]DCB 49
49 In March 2013, the defendant arranged for the plaintiff to be examined by surgeon, Professor Vernon Marshall. He accepted that the plaintiff had originally injured his right shoulder in 2007 and that it had been exacerbated in 2009. Professor Marshall considered the plaintiff was unfit for pre-injury duties but noted that he may be fit on physical grounds for light clerical duties, with minimal lifting of his right arm.[34]
[34]DCB 57
Credit
50 I accepted the plaintiff as an honest witness. He gave simple, straightforward answers. At times his memory was poor and he frequently conceded he could not recall exactly what he had told the medico‑legal doctors, nor what medication he was on at certain times.
51 Ms Wolski focused on two matters to demonstrate inconsistency in the plaintiff’s evidence.
52 The first matter relates to the medication which the plaintiff has taken since the 2009 injury, including what he takes now. The plaintiff said he currently takes two to four Panadol Osteo each day, and that about two days each week, when his pain is especially bad, he takes Panadeine Forte. When asked if he had taken this same amount of medication since the 2009 injury, the plaintiff initially said, yes,[35] but later indicated he could not really remember.[36]
[35]T19, L5-9
[36]T20, L25-30
53 The plaintiff was then cross-examined on histories taken by Dr Lee, Associate Professor Goldwasser, Dr Yong and Mr Jones, that at the time of their examinations of him, the plaintiff was not taking any medication. When asked about this, the plaintiff said he could not remember exactly what he was taking each time, but that in his belief, he had been taking medication on a regular basis since the 2009 injury.[37]
[37]T20, L25-31, T21, L1-8
54 The plaintiff’s records of the Westmeadows Medical Clinic, indicate that numerous prescriptions have been given to him for medication since 2009. I accept that at times, the plaintiff used these medications for shoulder pain, even when it was prescribed for another medical complaint. I am satisfied that these clinical records support the plaintiff’s need for medication on a regular basis. I also note that the plaintiff does not require a prescription for Panadol Osteo,[38] which I accept he takes daily. I consider he may have overstated the amount of Panadeine Forte that he takes, but not to such a degree that I would consider him to be an unreliable witness.
[38]Exhibit 2, T20, L9-10
55 The second matter which Ms Wolski focused on, in cross-examination of the plaintiff, was the lifting incident. This incident was not recorded in Dr Lee’s clinical records, nor was it referred to in the initial report of Associate Professor Goldwasser, Dr Yong or Mr Jones. The plaintiff believed he told both Dr Lee and Associate Professor Goldwasser about the lifting incident.[39]
[39]T29, L17-28,
56 I note that in his claim form, completed on 22 January 2010, the plaintiff referred to 12 November 2009 as the date his injury occurred.[40]
[40]Defendant’s Court Book (“DCB”) 1
57 I make no adverse credit finding against the plaintiff for the omission of the lifting incident in the records of Dr Lee, Associate Professor Goldwasser or the initial medico‑legal reports of Dr Yong and Mr Jones. The failure of doctors to refer to the lifting incident does not necessarily mean the plaintiff did not tell them about it. In any event, the plaintiff claims he suffered his right shoulder injury over the course of his employment with the defendant, and for the purpose of this application, it is not necessary for him to prove that an injury was suffered in the lifting incident.
58 I am satisfied that the plaintiff suffered a SLAP tear and bursitis in his right shoulder injury in the course of his employment with the defendant, for which he required surgery. Despite the surgery, I am satisfied the plaintiff has been left with ongoing impairment in his right shoulder.
Aggravation
59As the plaintiff suffered a right shoulder injury in 2007, it is now necessary for me to compare the plaintiff’s pre-existing condition prior to the 2009 injury, with the aggravated state. I must consider only the consequences arising from the aggravation.[41]
[41]Petkovski v Galletti [1994] 1 VR 436
60 Chernov JA, in R J Gilbertson v Skorsis,[42] summarised the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a ‘serious injury’, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”[43]
[42][2000] VSCA 51
[43]Ibid at [40]
61 I accept that by the end of 2007, the plaintiff had sufficiently recovered from his 2007 injury, such that he did not require ongoing medical treatment, nor was he restricted in his duties as a spray painter. I also accept that the plaintiff had been able to return to recreational activities including swimming and gym work. Notwithstanding his concession he still suffered occasional right shoulder pain between late 2007 and the time of the 2009 injury, I am satisfied it did not result in any impairment. Therefore, I can consider the totality of the plaintiff’s impairment in assessing the consequences of the 2009 injury.
Loss of earning capacity
62 To succeed in his application, the plaintiff has the onus of satisfying me that as at the date of hearing, he has sustained a loss of earning capacity of 40 per cent or more, and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
63 The definition is an objective test which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether the work is a reasonable distance from the plaintiff’s place of residence.[44]
[44]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [25] and [28]
64 In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity.
65 The parties agreed that the plaintiff’s earnings of $53,040, in the financial year ending 30 June 2010, to be the income which most fairly reflected the plaintiff’s without injury earning capacity. This equates to an average weekly wage of $1,020. Applying the statutory test, I must be satisfied the plaintiff is incapable of earning no more than $612 per week, and that such a restriction on his earning capacity will be permanent.
66 All the doctors agree that the plaintiff cannot return to his pre-injury work. As such, the issue for me to determine is what the plaintiff is capable of earning in suitable employment.
67 Dr Jamel noted the plaintiff’s ongoing restrictions in his right shoulder, and stated that he cannot return to his work duties. He did not elaborate on whether he considered there would be other duties suitable for the plaintiff.
68 Mr Jackson considered that, in October 2013, the plaintiff’s right shoulder had improved and was moving well, with no irritability. The plaintiff did not recall reporting that to Mr Jackson. Accepting the plaintiff as a creditworthy witness, it is hard to reconcile Mr Jackson’s assessment with the plaintiff’s complaints of ongoing restriction. It may be that Mr Jackson is an overly optimistic treating surgeon. In any event, as Mr Jackson has not seen the plaintiff for almost three years, his opinion is of little assistance to me in assessing the plaintiff’s current work capacity.
69 Mr Chehata detailed, from an orthopaedic point of view, the reasons he considered the plaintiff unable to return to his pre-injury duties. He also stated that he did not consider the plaintiff fit to undertake any suitable employment. However, Mr Chehata did not adequately explain the basis for his opinion that the plaintiff was unfit for any alternative work, nor did he detail the physical restrictions which the plaintiff’s injury has caused him. Therefore, I am not assisted by his report in considering the plaintiff’s capacity for suitable employment.
70 Professor Marshall referred to the plaintiff being fit for light clerical work, with minimal lifting of the right arm. Given the brevity of this comment, as well as the plaintiff’s learning difficulties, I gain little assistance from this opinion.
71 Mr Kudelka considered the plaintiff could attempt alternative work that did not involve excessive strains on his right arm. From an orthopaedic point of view, he considered the jobs of rental officer, vehicle colour matcher, spare parts interpreter and retail sales assistant to be appropriate, provided lifting restrictions were complied with. These comments by Mr Kudelka are of some assistance to me, as they involve an analysis by him as to what jobs may be suitable, given the plaintiff’s restrictions.
72 I am also assisted by the recent opinions of occupational specialists Dr Eaton and Dr Yong. Both doctors detailed the physical restrictions imposed by the plaintiff’s right shoulder injury. The restrictions were remarkably similar – no repeated lifting above shoulder height, no repeated pushing or pulling, and to avoid lifting objects greater than 5 kilograms.[45] When asked about these restrictions, the plaintiff agreed they were reasonable, and said that he felt he would give a job a go if an employer would comply with those restrictions and “look after me”.[46]
[45]Dr Yong stated no lifting more than 5 kilograms on a repeated basis. Dr Eaton stated no lifting more than 7 kilograms with the load close to the torso, and no lifting beyond 1 kilogram with a load more than 30 cm from the torso
[46]T61, L12-24
73 Consistent with those restrictions, the plaintiff was hopeful he could obtain full-time employment. This was evidenced by the multitude of job applications he had made, averaging 20 per month.[47] Whilst I consider the plaintiff’s optimism to be commendable, I do not, for the reasons I will now detail, consider it at all realistic.
[47]T62, L1-4
74 The defendant arranged for the plaintiff to attend a vocational assessment with Nabenet in July 2016.[48] Following this assessment, Nabenet identified four possible jobs, which the defendant submitted would constitute suitable employment for the plaintiff. I will deal with each of these in turn.
[48]DCB 88-97
(i) Car rental officer. Dr Yong considered this to be suitable employment, as it was consistent with the plaintiff’s physical restrictions and he considered the plaintiff to be capable of entering the customer’s details into the computer system and processing payments. Dr Eaton did not consider it to be suitable employment given the plaintiff’s limited literacy and memory.
I do not consider the plaintiff would be capable of working as a car rental officer. The hiring of rental cars involves numerous contractual documents, which a rental officer would be required to read and explain to customers, when asked. I consider this to be fundamental to the role of a car rental officer. I do not, based upon my assessment of the plaintiff in the witness box, together with the medical opinion of Ms Ross, consider the plaintiff capable of performing this role.
(ii) Vehicle colour matcher. Dr Yong expressed some concern as to the physical requirements of this job, and noted lifting paint cans may be beyond the plaintiff’s physical capacity. Further, I accept the plaintiff’s evidence that he does not know of any full-time position as a vehicle colour matcher, as it is ordinarily a job incorporated into the position of spray painter. For both these reasons, I do not consider this to be suitable employment.
(iii) Spare parts interpreter. Dr Yong did not consider this to be suitable employment for the plaintiff, as it was likely to involve him handling goods in excess of the weight restriction. Dr Eaton considered the plaintiff would have difficulties performing this job, as he would have difficulties using the computer system, and handling heavy stock, or stock placed above mid-chest height. For these reasons, I do not consider this suitable employment.
(iv) Retail sales assistant (automotive store). Dr Yong considered this to be suitable employment, as minimal manual handling would be expected in such a role. Dr Eaton considered it would be unsuitable, because the plaintiff would have difficulty using the computer system, handling stock that was heavy or placed on shelves above mid-chest height. He also considered the plaintiff would have difficulty memorising the stock or merchandise.
The plaintiff has no experience in sales. He is personable, but a relatively simple person. Given his significant learning difficulties, lack of sales experience, and physical restrictions, I do not consider this to be suitable employment.
75 In April 2011, the plaintiff did a 20 hour course in basic computers skills. Given his significant learning difficulties, I do not consider any further retraining with computers would realistically assist the plaintiff in obtaining suitable employment.
76 In August 2014, the plaintiff also did a one week course in the real estate industry. Again, considering his significant learning difficulties, I consider it entirely unrealistic that he would ever obtain suitable employment in the real estate industry.
77 The plaintiff worked for almost 25 years as a spray painter. Having only ever performed physical, manual work, together with his significant learning difficulties, I am satisfied the plaintiff has no capacity for suitable employment.
78 I am satisfied this is the position now, and that this incapacity will remain for the future and be permanent. Accordingly, he has suffered the requisite loss of 40 per cent.
79 Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[49] Given my acceptance that the plaintiff’s injury causes him an ongoing incapacity for work, the pecuniary disadvantage to him is so great, that I consider his loss of earning capacity can be described as very considerable.
[49]s134AB(38)(c)
80 As the plaintiff has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from the aggravation of his right shoulder injury, it is not necessary for me to consider separately his pain and suffering consequences for that injury.[50]
[50]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
Orders
81 I am satisfied that the plaintiff suffers a serious injury to his right shoulder arising as a consequence of his employment with the defendant, and the consequences are such that he should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
82 I will make the consequent orders.
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