Rice v Central Highlands Group Training Inc and VWA

[2011] VCC 1402

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-11-00180

JONATHAN PHILIP RICE	Plaintiff
v
CENTRAL HIGHLANDS GROUP TRAINING INC	First Defendant
(trading as BALLARAT GROUP TRAINING) ABN 73288998195
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Ballarat
DATE OF HEARING:	3 and 4 November 2011
DATE OF JUDGMENT:	7 November 2011
CASE MAY BE CITED AS:	Rice v Central Highlands Group Training Inc & VWA
MEDIUM NEUTRAL CITATION:	[2011] VCC 1402

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J A Jordan SC with	Saines Lucas Solicitors,
Mr M A Nightingale	104 Lydiard Street South, Ballarat
For the Defendant	Mr P D Elliott QC with	Herbert Geer Lawyers,
Mr I S Gourlay	Level 20, 385 Bourke Street, Melbourne
HIS HONOUR:

1          In this application, the plaintiff seeks leave to commence a proceeding claiming damages in respect of an injury suffered by him in the course of his employment with the first defendant on or about 2 June 2004. The injury relied upon by the plaintiff involves an injury to his right knee, and the impairment of body function is that of the right leg.

2          There is no issue in the proceeding that the plaintiff’s injury is one which gives rise to consequences with respect to pain and suffering which are serious within the meaning of that term as employed in the provisions of the Accident Compensation Act 1985 as amended (“the Act”). The only issue which I am required to determine in this application is whether the injury is such that the loss of earning capacity consequences associated with the injury are serious within the meaning of the Act. In assessing this issue I do so on the basis of the ruling which I have made in this matter, namely that the figure which most fairly reflects the plaintiff’s earning capacity had the injury not occurred is $776 gross per week. Further for the purposes of the assessment required of me, it is agreed by the parties that the plaintiff’s present rate of pay is $23 per hour.

3          In this application, the plaintiff relies upon two affidavits sworn by him on 6 September 2010 and 18 October 2011 respectively. In addition, the plaintiff gave evidence and was cross-examined. Otherwise the parties rely on medical reports tendered by them.

The Plaintiff’s Affidavit Evidence as to his Present Capacity to Work

4          In his first affidavit, the plaintiff said that:

• He was presently employed with a catering firm which provided spit roasts. (In this respect there is no issue that the plaintiff is employed with a company known as Fabulous Feasts, in the course of which employment he is required to deliver and set up the company’s spit roasts at various premises and prepare meat, vegetables, and on occasions desserts, at functions such as sports nights and private parties.)

• The hours which he worked for Fabulous Feasts varied due to the seasonal demand for the services provided by that company.

• His capacity to work for the company was affected by the symptoms in his right leg.

• On average he worked one or two evenings a week.

• During busy periods around Christmas he had worked increased hours, but he could not do so on a long-term basis, as an increase in his hours caused an increase in his symptoms.

• His symptoms were exacerbated by activities including weight bearing, any activity which placed stress upon his knee such as walking long distances or getting in and out of a car.

5          In his second affidavit, the plaintiff said that:

•  He worked an average of six to seven hours on the days in which he was employed by Fabulous Feasts.

•  The work which he undertook was not easy for him:

“... but I have to keep going to try and provide for my family even in this very limited way. After working a couple of days a week I really feel it so far as my knee is concerned. In the busier periods it is worse for me as there is more work. At these times I may work at functions for three or four days a week for very limited periods as it is almost beyond me but I have to try to do it to keep up the work. If I don’t I will be replaced. Fortunately for me it’s only for very short periods where I work more than two days per week. I know from my experience over the last three years or so that the work I’m now doing and the hours I am working is my maximum ...

My usual working hours are now if (sic) about six to twelve hours per week except for very limited periods where I may work more days.”

The Plaintiff’s Viva Voce Evidence as to his Present Capacity for Work

6          In the course of his evidence, the plaintiff described his work with Fabulous Feasts as involving driving a van within which he transported a flatbed spit, a gas bottle, a bain-marie, pots and pans, and the food required as ordered by the function which he was working at.

7          He said that his duties involved removing the various items to which I have referred from the van, transporting them by the use of a trolley to the place where they were to be set up, cooking and slicing roasted meat and preparing and serving both the vegetables and any sweets which had been ordered.

8          He described handling weights of up to 20 kilograms in the course of this work, and said that the work required him to remain on his feet for the duration of the period in which he was setting up and removing his equipment and serving the meals which he produced.

9          He said that the company employed a process by which one employee would be allocated to a function for up to sixty or seventy people, and that the number of employees would be increased proportionately to the number of patrons to whom catering services were to be provided.

10        The plaintiff said that the busy period for his work with Fabulous Feasts involved the period from 1 December until Christmas, during which time he would do up to three functions on his own, but in addition he may attend another function for the purpose of providing assistance. He said he was paid at a flat rate of $23 per hour.

11        The plaintiff said that after having failed to gain his Year 12 at Ballarat College, he studied at the Marcus Oldham Agricultural College, and having successfully completed that course, whilst he had hoped to obtain work as a leading hand on a farm, he had not realized that aim –

“because I was always just a bottom of the – because my – my marks

weren’t good enough to be able to get to that position”.

12        He said that he had obtained employment in a flour mill in which he worked for ten years until his employment was made redundant on 13 July 2001; that he thereafter applied to:

“Mars and to Laminex I think and McCain’s to do packing-type work”

but did not obtain an interview; that he undertook a commercial cooking course at Ballarat University for nine months and that, although he completed the course successfully, he had subsequently been unable to obtain employment as a cook; that he commenced part-time employment with Fabulous Feasts; and that having obtained employment with Vatman in 2004, he thereafter maintained that employment in conjunction with his employment with Fabulous Feasts, the latter involving only weekend work.

13        The plaintiff said that he now found it “pretty hard” working two days a week at Fabulous Feasts, and that if he were able to find another job he would give up his work at Fabulous Feasts.

14        He said that he possessed very limited computer skills and that he struggled “with figures and things like that” (referring to his arithmetical skills).

15        The plaintiff accepted the possibility that he might be able to undertake a hand-packing job if he could stand and sit at a conveyor, and that he could possibly work assembling components in a factory.

16        He said that he was married, that his daughter was fourteen-years-old, and that his wife had recently given up her employment as a nurse as a result of injury which she sustained to her neck. He said that the family had their own house, commenting “but probably won’t have for much longer” (I took this to be a reference to the plaintiff’s financial situation), and that he presently employed Mobic, Panadol Osteo and Nurofen in management of his symptoms.

17        In the course of his evidence the plaintiff said that his knee was sore as he sat in the witness box. On the plaintiff demonstrating the swelling in his knee, it was my strong impression that there was significant swelling present in the plaintiff’s right knee when compared with his left knee.

18        The plaintiff said that on the day upon which he gave evidence he had not done any work, and that he had been at court since 9 o’clock in the morning. (I assume in these circumstances that other than during the periods in which the plaintiff was present in court he had been able to rest his knee and accommodate it to minimise his symptoms, as was his wont.)

19        The plaintiff said:

•  That after working one day with Fabulous Feasts he required a break of a couple of days;

•  That there had been a recent increase in his medication in that, whilst his dose of Mobic had remained stable, in the last six months he had increased the Panadol Osteo he was taking from one or two tablets a day to four or five tablets a day, and the Nurofen from two tablets a day to three tablets a day;

•  That his experience during the busy period of his work with Fabulous Feasts between the beginning of December and Christmas in the previous year, had been that by Christmas his knee was very sore, with the result that it was “probably until the end of January” before he could do any more work;

•  That he was pressured by his wife with respect to his inability to work full- time, and that he possessed no skills which would enable him to do office work;

•  That he could not work as a forklift driver, as getting on and off the forklift with his knee would be a problem for him, commenting:

“You live your whole life and most of it your legs are very sore and in pain and you can’t sort of focus on anything else other than the medications at times”

when asked how he might cope with hand-picking or product-assembly
work.

20        My impression of the plaintiff as he gave evidence was that he was a man with extremely limited academic potential whose earning capacity was really dependent upon his physical integrity. I accept the plaintiff’s evidence, which was not really the subject of challenge, that his present employment significantly exacerbates his symptoms. That he continues in that employment is, in my opinion, testament to the plaintiff’s bona fides and endurance as a person seeking to minimise the economic consequences of his injury upon both himself and his family.

21        Having regard to his present personal situation, which involves his wife having recently left the workforce and the prospect of the family losing their house, there seems to me every reason why the plaintiff would be exercising the full extent of the capacity which he has to work, and for all these reasons I accept the plaintiff’s evidence that the capacity which he is presently applying, which involves working up to fifteen hours per week, most probably represents the true extent of his capacity at the present time.

22        Further:

• I accept the position put by Mr Jordan SC, who appeared with Mr Nightingale on behalf of the plaintiff, that the recent trend in the plaintiff’s condition which has involved an increase in the medication which he requires to manage his symptoms would suggest that the capacity for hourly work which the plaintiff presently exhibits is likely to represent the high point of his capacity;

• I am satisfied given the effect which the plaintiff’s presence in and around the court had had upon his knee, that even were his employment to be altered to one which involved less physical activity than that which is involved in his present occupation with Fabulous Feasts, it is unlikely that such a change of employment would alter the hours during which he is able to work on a regular basis.

23        For these reasons, I am satisfied that the plaintiff is currently exercising his retained working capacity to its maximum. It accordingly follows that I reject the evidence of Mr Ian Jones, who opines that the plaintiff is fit for work on a full-time basis.

24        Equally, I do not find the opinion expressed by Dr Michael Wood in his report dated 12 May 2010 that the plaintiff’s prognosis was good for eventual return to full-time duties, to be persuasive having regard to the fact that the opinion was expressed some time ago and whilst the plaintiff was still undergoing rehabilitation in association with the knee replacement surgery undertaken by Mr Byrne.

25        Further, I find the comments expressed in June 2010 by Dr Capes, an industrial physician, to the effect that “I would hope he may be able to work full-time in the future but a lot has to go right for this to happen” when considered in the context of the plaintiff’s recent increase in symptoms and his need to undergo a further assessment by Mr Byrne in the new year, to provide little guidance as to the hours which the plaintiff is fit to work.

26        I find the opinions of Mr Byrne, who opined in a report dated 19 October 2011:

“He has returned to part-time duties. I feel that Mr Rice should remain in part-time duties if at all possible as increasing his activity may increase symptoms in the knee of swelling and ultimately pain. ... In the foreseeable future I believe Mr Rice will remain on part-time duties working as a caterer but really should not increase these to full-time for fear that he may increase the symptoms in the knee and ultimately not be able to continue working at all”,

and Mr Schofield, who in his report dated 14 October 2011, commented:

“Your client is currently working about 15 hours per week. I doubt if this

can be improved in the foreseeable future”;

to be the most persuasive as to the likely long term level of the plaintiff’s restricted capacity for employment. In turn these opinions satisfy me as to the likely permanence of the plaintiff’s present restricted capacity for employment. I emphasise the importance to my finding as to the degree to which the plaintiff’s earning capacity is restricted of the impression which I formed of the plaintiff as someone who was well motivated and was doing his best to minimize the pecuniary loss effects of his injury.

27        The parties are in agreement that should I be satisfied that the plaintiff is currently working at the maximum level of his physical capacity and that this would result in a finding that his incapacity is such that the loss of earning capacity consequences associated with the injury are serious within the meaning of the Act.

28        For the reasons which I have expressed, I am satisfied that this is the case.

29        It follows that the plaintiff is entitled to the orders he seeks in this proceeding and I will hear the parties as to the precise form of the order which I should make and also on the issue of costs.

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