Ponchard v Toll Holdings Limited
[2012] VCC 1873
•4 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04239
| GLEN PONCHARD | Plaintiff |
| v | |
| TOLL HOLDINGS LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2012 | |
DATE OF JUDGMENT: | 4 December 2012 | |
CASE MAY BE CITED AS: | Ponchard v Toll Holdings Limited | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1873 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury application – injury to the lumbar spine – capacity for employment
LEGISLATION CITED – Accident Compensation Act 1985
CASES CITED – Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
JUDGMENT – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Moore QC with Mr R C Forsyth | John Dellios & Associates Pty Ltd |
| For the Defendant | Mr D Myers | Gadens Lawyers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant in November 2008 and March 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The impairment relied upon in this application is injury to the spine.
6 The plaintiff relied upon two affidavits, sworn 20 April 2011 and 19 November 2012. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant.[2]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c)“the consequences” to the plaintiff of his impairments to the spine in relation to “pain and suffering” 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”.[4]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[5]
[5]s134AB(19B) and 38E of the Act
(a) that at the date of hearing he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[6]
[6]s134AB(38)(e)(i) of the Act
(b) that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[7] and
(c) that even with rehabilitation and retraining he will still sustain a loss of 40 per cent or more.[8]
[7]s134AB(38)(e)(ii) of the Act
[8]s134AB(38)(a) of the Act
10 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at [63]
11 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[10][2009] VSCA 181
[11]Ibid at [42]
13 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[12]
[12]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
14 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
15 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[13]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[14]
[13]s134AB(38)(j) of the Act
[14] Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
16 Counsel for the defendant informed the Court that it accepted the plaintiff meets the test for pain and suffering. Counsel said the plaintiff has failed to satisfy s134AB(19)(b), in that he has failed to discharge the onus upon him to prove an inability to undertake suitable employment, including alternative or further employment, or to be retrained, and the extent of such inability.
The Plaintiff’s Evidence
17 In his affidavits sworn on 20 April 2011 and 19 November 2012, the plaintiff deposed that:
· He went to school in Melbourne to Year 12. He then worked as a station assistant at Flinders Street Station for about seven years, then as a forklift driver/storeman and as a truck driver.
· On 27 May 2008, he commenced employment with the defendant as a picker at the Coles’ distribution centre at Somerton.
· In November 2008, he injured his low back in the course of his employment. He was placed on light duties. In March 2009, he returned to unrestricted duties. On 18 March 2009, he suffered increased pain in his low back when at work. He had time off work and medical treatment.
· In May 2009, he returned to work on restricted duties and part-time hours. He commenced retraining as a forklift driver, but stopped because he had difficulty getting on and off the forklift. He increased his hours at work but suffered increased pain.
· In August 2009, he commenced as a full-time training team manager. He had difficulty coping with the job because of the time he was required to stand.
· On 4 March 2010, he had surgery. There was some initial improvement in his right calf and heel but he continued to have pain in the right thigh and buttock and his back.
· He returned to work a couple of months later doing light duties part time. He was having difficulty coping and could not increase his hours or duties. In July 2011, his employment was terminated by the defendant.
· He has not returned to employment. He would not be able to manage lengthy periods of standing nor guarantee daily attendance.
The Plaintiff’s Evidence in Cross-Examination
18 The plaintiff was cross-examined and gave the following pertinent evidence:
· His problems began in October and November 2008. They got worse after that. He returned to work.
· In June 2009, he was working five hours per day driving a forklift. He agreed he told Mr Stuart his level of pain was level two on a scale of nought to ten. He had physiotherapy and was instructed in core muscle strengthening exercises. He does those exercises; they get him going in the day.
· In March 2010, he had an operation on his back. Following the operation, he did not have pain in his lower calf anymore.
· He has not tried to find work driving a truck. He does not believe he could drive a truck because of the prolonged sitting, and he would have trouble stepping up and down to get into a truck.
· He tried driving a forklift after the operation but did not last a day. He drove for about three hours. His major problems were getting up and down, and the jerk across the floor.
· He has not looked for work as a delivery driver. He said delivery drivers drive, load and unload the truck.
· He has trouble sleeping every night. He uses Temazepam to go to sleep every night.
· He stands and walks around the house doing housework during the day. Some days he walks more than others. He has to have somewhere he can sit down. He stands and does housework and when he cannot handle it anymore he sits down. He does the washing and dishes and makes the beds. He does what he can.
· He drives a manual car. This causes him difficulty.
· He has days where he does not take medication. He feels he is too irritable with medication so sometimes he does not take it.
· He would like to work if he could find something suitable. He looks in the local papers every week.
· He has Warehouse Certificates I, II and III in Distribution.
· He passed Year 10 mathematics.
· He has not sent anyone his resume.
· His symptoms vary day to day. All it takes is to do something the wrong way and the symptoms become severe.
· He has not made enquiries about employment as a traffic controller. CoWork did not say to him there was a job available. He did not think he could do the job. He has seen a job of traffic controller advertised in the paper.
· He has not made any enquiries about employment as a parking enforcement officer. He had not thought about it.
· He can use the internet, but does not have it at home.
· He has had to do more since his wife’s injury. He now makes the beds.
· He has noticed the more he has been doing the more he has been having trouble.
· He has been waiting for approval for a further MRI scan.
· He attended a pain management course for about five months. He finished it about a month before the hearing. The course did not really help him because he already knew the techniques. It has helped him wean himself from medication.
19 In re-examination, the plaintiff said:
· He still gets pain in his lower back and both buttocks. The level of pain varies. Once or twice daily his pain becomes severe; sometimes it can be severe all day. It depends on what he has done.
· He could not promise an employer that he would be at work five days a week or on time every day.
· He would like a suitable job or just a normal life.
· After the operation, he was working up to 20 hours per week doing inventory work using scanners. He was not coping very well.
· He disagreed that because of his wife’s injury there is no option but for him to stay at home. He said he could work around it. They worked around it before.
· He takes about four Panadeine Forte a week and Temazepam daily. He told his general practitioner he could only sleep for three hours. His general practitioner said he could increase the dose of Temazepam, but it is addictive.
· He does not have a traffic controller and traffic management certificate.
· He would not be able to assist with loading and unloading.
· He does not regularly drive 60 kilometres.
· After giving evidence, travelling to and from Court he can expect to be in a very bad way tonight, which will take him two days to recover.
Investigations
20 On 11 December 2008, a CT scan of lumbar spine showed:
“Moderate right lateral disc protrusion at L5-S1, impinging on the right S1 nerve root.”
21 On 14 April 2009, an MRI scan of the lumbar spine showed:
“L5-S1 broad based disc bulge with superimposed right paracentral protrusion mildly posteriorly displacing and flattening the anterior surface of the traversing right S1 nerve.”
22 On 25 January 2010, an MRI scan of the lumbar spine concluded:
“(1) moderate to large right paracentral L5-S1 disc protrusion contacting, displacing and effacing the right S1 nerve in the lateral recess, without compression;
(2)shallow broad based disc bulge at L4-5, but no high grade canal nor neuro foraminal compromise;
(3) no significant disc pathology at higher lumbar levels.”
The Plaintiff’s Medical Evidence
Dr Selim Shubbar
23 In March 2012, Dr Shubbar, general practitioner, reported that the plaintiff had two incidents at work, the first in November 2008 and the second in March 2009, after lifting boxes of wine. The plaintiff was treated initially with conservative measures, including physiotherapy, hydrotherapy and local injection.
24 In March 2010, he was treated surgically with a right-side L5-S1 microdiscectomy by surgeon, Mr Drnda.
25 The plaintiff continued to have back pain and was reviewed by a rehabilitation group, but he could not cope with increased hours and the program was stopped. It was Dr Shubbar’s view that the plaintiff’s work was a significant contributing factor to his low-back pain. Further, the plaintiff had no capacity for pre-injury duties currently and in the future.
26 Dr Shubbar thought the plaintiff had a capacity for modified light duties/office duties as part time employment, of five hours a day, two days a week. Such employment would have restrictions of no weightlifting of more than 3 kilograms, no bending and no twisting. Such restrictions would apply for many years. Further, the plaintiff may need frequent breaks during his hours of work.
Mr Armin Drnda
27 In May 2011, Mr Drnda, neurosurgeon, reported to the defendant’s insurer. Mr Drnda said, after performing surgery, he suggested the plaintiff return to light duties working every second day, half of normal hours, with gradual increase, with restrictions of no lifting.
28 In March 2011, the plaintiff had been working part time and developed more pain in his buttocks.
29 Mr Drnda said the plaintiff was not capable to return to pre-injury duties. He imposed restrictions of no repetitive bending and twisting and no lifting heavier than 7 kilograms.
Mr Kenneth Brearley
30 In December 2011, Mr Brearley, neurosurgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Mr Brearley said the plaintiff had no current work capacity as a result of the first work injury and also separately as a result of the second injury. He said he had a capacity for suitable employment. However, that was theoretical, as the plaintiff could only work part time, four hours, five days a week, and he would require time off due to exacerbations of his back pain without notice. He would also require rest breaks of ten minutes every hour. He did not think the plaintiff would be a reliable or punctual attendee and thought such limitations would influence an employer not to engage him in paid employment.
31 He thought the plaintiff was capable of doing some training and that the consequences would continue for the foreseeable future. He said the plaintiff’s prognosis generally is not good.
Dr Charles Castle
32 In March 2012, the plaintiff was medically examined by Dr Castle, occupational health and rehabilitation specialist, at the request of the plaintiff’s solicitor. Dr Castle said the plaintiff had no current work capacity because of the severity of his pain, and the fact that bending, twisting and turning make his back pain worse. He is able to sit for one hour, stand for about an hour and a half, and walk for one hour. He can carry 3 to 5 kilograms. He said the plaintiff required extensive medication which causes sedation.
33 Dr Castle said the plaintiff had no capacity for suitable employment in the open labour market because of the severity of his back pain, the factors that aggravate his back pain and the restricted movement in his back. He said the plaintiff may be able to work on modified duties, for twenty hours a week, in a role where he can sit or stand as he needs to, not lift any more than 3 to 5 kilograms, where he takes rests breaks as required, and where he does not have to do any repeated twisting, bending or turning. Dr Castle concluded that the likelihood of the plaintiff obtaining suitable employment was zero.
34 Dr Castle said the plaintiff was not suitable to undertake retraining because he would have to sit for extended periods. However, this can sometimes be overcome by a sympathetic teacher. However, the problems of pain and medication make him unsuitable for retraining. He said the consequences of the plaintiff’s work injury will continue for the foreseeable future. The likelihood of him improving in his pain is remote and the likelihood of him being able to work is very low.
Mr John O’Brien
35 In July 2012, Mr O’Brien, orthopaedic surgeon, saw the plaintiff at the request of the plaintiff’s solicitor. Mr O’Brien said that, given the plaintiff’s employment background and his current presentation, he would not be capable of undertaking any suitable employment on a full-time basis. He thought it was unlikely that the plaintiff could physically undertake modified duties on a part- time basis. He accepted that the plaintiff was totally and permanently incapacitated and will not return to gainful employment.
The Defendant’s Medical Evidence
36 The defendant relied upon the following medical reports:
Mr G Stuart
37 Mr G Stuart, neurosurgeon, provided reports dated 30 June 2009, 9 February and 1 December 2010. In December 2010, Mr Stuart thought the plaintiff was capable of returning to his pre-injury duties on a full-time basis.
Mr Hugh Weaver
38 In October 2010, Mr He Weaver, orthopaedic surgeon, saw the plaintiff at the request of the defendant’s solicitor. Mr Weaver saw the plaintiff six months post-operatively and at that stage expected his symptoms would continue to abate progressively with the passage of time. Mr Weaver noted that the plaintiff was undertaking modified duties at work and was exhibiting residual signs of lumbar spine dysfunction and associated sciatica. He imposed restrictions into the future from handling weights of more than 5 kilograms on a constant basis and 10 kilograms intermittently. He said the plaintiff should be protected from having to undertake frequent bending or twisting movements of his lumbar spine. He thought the plaintiff could continue in his current employment situation provided he was looked after in the workplace.
Mr Max Wearne
39 Mr Max Wearne, orthopaedic surgeon, provided reports of June 2011 and October 2012. There was a further report dated February 2012, but it was not included in the defendant’s Court Book and was not relied upon.
40 In October 2012, Mr Wearne said the plaintiff’s injury and surgery rendered the plaintiff’s back vulnerable to further injury if his lumbar spine was subjected to significant physical stress. Mr Wearne said the plaintiff had a partial incapacity for work and was capable of sedentary or semi-sedentary activities with the avoidance of repetitive bending and heavy lifting. He thought he was capable of driving a medium-sized vehicle, provided that any unloading or loading complies with the lifting restrictions he described; up to 5 kilograms on a regular basis and up to 10 kilograms on occasions, but no more than ten times in any particular hour.
Vocational Assessments
CoWork Labour Market Analysis
41 The defendant relied on a report prepared by CoWork. In September 2011, Ms Joanne Bryant from CoWork identified the following employment options for the plaintiff based on his education, experience and transferable skills and limitations: road traffic controller, parking enforcement officer, pick packer and railway assistant.
Ms Lee Wilkinson
42 In June 2012, Ms Wilkinson, psychologist, met with the plaintiff for the purpose of a vocational assessment at the request of the plaintiff’s solicitor. Ms Wilkinson responded to the vocational assessment report completed by Ms Bryant.
43 Ms Wilkinson formed the view that none of the employment options recommended by Ms Bryant were suitable to the plaintiff. She said the plaintiff would require modified duties for all of those positions and that no employer would knowingly and willingly hire the plaintiff over other qualified and skilled candidates.
Video Surveillance
44 I was shown no film of the plaintiff, even though video surveillance of the plaintiff was referred to in the index of the Defendant’s Court Book. I can only conclude that the film did not assist the defendant.
Credit of the Plaintiff
45 The plaintiff answered questions in a straightforward manner. He was eager to assist the Court and to accurately answer the questions that were put to him. He made reasonable concessions, in particular about what job seeking activities he had undertaken. He did not exaggerate or embellish his condition. I formed the view the plaintiff was genuine, co-operative and hardworking.
46 Overall, the plaintiff impressed me as a credible witness.
Analysis of the Evidence
47 It was not in dispute that the plaintiff suffered a compensable injury arising out of, or in the course of his employment with the defendant. What was in issue was his capacity for employment.
48 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.
49 The provisions of s134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[15] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[16] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[17]
[15]s134AB(38)(b) and (c)
[16]s134AB(38)(e), (f) and (g)
[17]Advanced Wire & Cable Pty Ltd & VWA v Abdulle (op cit) at [63]
50 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.
The Narrative Test
51 I must consider the plaintiff’s injuries at the time of the trial. Both parties accepted that the relevant evidence was that relating to the plaintiff’s condition after the March 2010 operation. I place less weight on the reports of Mr Stuart and Mr Weaver as neither practitioner has seen the plaintiff since 2010 and Mr Weaver only saw the plaintiff on one occasion.
52 The medical evidence is that the plaintiff has no capacity for his pre-injury employment. Mr Stuart was the only medical practitioner who thought the plaintiff would be able to return to pre-injury employment. I do not accept his opinion. All other medical witnesses accepted the plaintiff can not return to pre-injury employment. The medical witnesses imposed restrictions on heavy lifting, bending and twisting.
53 Dr Castle’s opinion was that the plaintiff has no current work capacity given the severity of his pain, which would be made worse by bending, twisting and turning. He said the plaintiff may be able to work modified duties up to twenty hours per week, but the likelihood of him finding work with the restrictions he imposed in a role where he can sit or stand as required was zero. Dr Shubbar said the plaintiff has a capacity for modified light duties part time, working five hours per day, two days per week. In addition to restrictions on bending, twisting and lifting, he also said the plaintiff would require frequent breaks. Mr O’Brien said the plaintiff is not capable of suitable employment on a full-time basis and would be unlikely to cope even with part-time hours. Mr Brearley said the plaintiff has a theoretical work capacity only. He said the plaintiff could work four hours per day, five days a week with a ten-minute rest break every hour. He said the plaintiff would require time off without notice because of exacerbations.
54 Mr Wearne said the plaintiff has a partial incapacity for work and is capable of sedentary or semi-sedentary activities, starting at twenty hours per week and increasing to full-time hours. He imposed restrictions on repetitive bending and heavy lifting. He said the plaintiff’s back was vulnerable to further injury if his lumbar spine was subjected to physical stress. He said the plaintiff is leading a reasonably active life and his residual symptoms cause little trouble with his activities. This differed from his opinion in July 2011, when he said the plaintiff was capable of light duties for 28 hours per week with a minimum of bending and twisting and a weight lifting limit of 5 kilograms.
55 I do not accept that the plaintiff leads a reasonably active life or that his symptoms cause him little trouble. The plaintiff’s evidence was that he takes Panadeine Forte four times a week and Temazepam nightly. He can no longer mow the lawns and garden and he continues to be unable to participate in his son’s sporting activities. He stands and does housework and when he cannot handle it any more he sits down. He suffers pain daily. The level of pain varies and once or twice a day the pain is severe. Sometimes it can be severe all day. I observed that the plaintiff had a pronounced limp, which would be obvious to any future employer. Accordingly, I do not accept Mr Wearne’s reasoning that the plaintiff is able to work part time increasing to full time.
56 The plaintiff’s evidence was that he struggled with the part-time hours he was performing for the defendant prior to being retrenched and was unable to increase his hours. He said, when completing housework he has to take breaks. He said he has found that the more he does the more pain he has.
57 I accept the evidence of Mr Brearley that the plaintiff’s work capacity is theoretical only. His evidence is supported by Mr O’Brien, Dr Castle and Ms Wilkinson. Mr O’Brien thought it unlikely the plaintiff would be able to perform modified duties part time. Dr Castle said the likelihood of the plaintiff obtaining suitable employment was zero. Ms Wilkinson said that the plaintiff does not have a current work capacity in an area of employment open to him and that no employer would willingly employ him over other equally qualified candidates. She said that he lacks the skills and experience, particularly in computers, to pursue more sedentary work.
58 The plaintiff is now forty-one years of age. He worked for the defendant for three years and continued to work despite his injuries until May 2011, when he was retrenched. The plaintiff’s evidence was that he would like to work. Borne out by his work record, I gained the impression that he was committed to his work.
59 I accept the plaintiff was stoical in relation to his attitude to work; namely he continued to work despite his injury and his incapacity to perform his pre-injury employment. The plaintiff’s stoicism cannot hide the consequences of the injury to this plaintiff. I am permitted to take into account the plaintiff’s stoicism.[18]
[18]Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260 at [3], Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at [47]
60 I accept that the consequences the plaintiff described arose as a result of the work injury.
61 Given all of the evidence, and the fact that manual work is the only work for which he has experience and is qualified, and his limited transferable skills, I am satisfied that he is unable to return to any form of employment. This represents a significant loss to the plaintiff, both with respect to his enjoyment of life and self esteem.
62 I am satisfied that it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being more than significant or marked and properly regarded as considerable when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments.[19]
[19]Stijepic v One Force Group Aust Pty Ltd & Anor (op cit) at [44]
63 I am satisfied that the injury to the spine is permanent, given that it has continued since 2008. This is supported by the medical opinion.
64 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.
The Statutory Test – Loss of Earning Capacity
65 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
66 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury earnings”; and
(ii) “after injury earnings”.
67 The “without injury” earnings must be calculated by reference to the six-year period specified in s134AB(38)(f).
68 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff was capable of earning from personal exertion, or would have earned, or would have been capable of earning from personal exertion had the injury not occurred. It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity.
69 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) of s134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[20]
[20](supra) at paragraph [70]
70 The plaintiff’s present earnings from personal exertion are nil.
71 The majority of doctors who expressed a view on employment said the plaintiff was only capable of modified or sedentary duties part time. The opinion of the Ms Wilkinson, which was consistent with that of Mr Brearley, Mr O’Brien and Dr Castle, was that the plaintiff’s work capacity was theoretical only, as his restrictions mean he would be unable to obtain employment in the open market.
72 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g) of the Act. None of the medical practitioners said the plaintiff’s restrictions could be addressed through rehabilitation. Counsel for the defendant submitted that the plaintiff was able to undertake retraining to find suitable employment given he had completed Certificates I, II and III in Distribution, had attained Year 10 mathematics and had attended school until Year 12. The only medical practitioners to address retraining were Dr Castle and Mr Brearley. Mr Brearley said the plaintiff was capable of re-training. Dr Castle said the plaintiff was not suitable to undertake retraining due to his levels of pain and medication and because it would require extended periods of sitting. Ms Wilkinson said the plaintiff would have difficulty retraining due to the prolonged sitting and his restrictions, such as driving time. She said he may require additional assistance with writing. Based on the views of Dr Castle and Ms Wilkinson, both of whom are experts in occupational rehabilitation, I do not accept that the plaintiff is capable of undertaking retraining.
73 Based on the plaintiff’s presentation in court, his age and the views expressed by Mr Brearley, Dr Castle, Mr O’Brien and Ms Wilkinson, I think it highly unlikely that the plaintiff would obtain, in the open market, light duties of a type which would enable him to return to work. I do not consider that retraining and rehabilitation will alter the situation. Accordingly, I am satisfied that he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
74 I am satisfied that the injury to the spine is permanent, given that it has continued since 2008. This is supported by the medical opinion.
75 Therefore, I am satisfied that the plaintiff satisfied the 40 per cent requirement and has sustained an injury within the meaning of s134AB of the Act.
76 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for economic loss consequences as a result of his employment with defendant after October 1999.
77 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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