Rujamoi v Stagono
[2017] VCC 74
•7 February 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
COMMON LAW DIVISION
SERIOUS INJURY LIST
Case No. CI-16-00035
| JOHN RUJAMOI | Plaintiff |
| V | |
| STAGONO PROPERTY LTD | Defendant |
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JUDGE: | Saccardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2017 | |
DATE OF JUDGMENT: | 7 February 2017 | |
CASE MAY BE CITED AS: | Rujamoi v Stagono | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 74 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury Application – bilateral shoulder injury – Loss of Earning Capacity – Pain and Suffering Conceded.
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.P. Brett QC, with Mr P. Hamilton | Zaparas Lawyers |
| For the Defendant | Mr D. McWilliams | Thomson Geer |
HIS HONOUR:
1 In this application, the plaintiff seeks leave to commence a proceeding, seeking pain and suffering and economic loss consequences associated with the bilateral incapacity of his shoulders, which incapacity, it is alleged by the plaintiff, arose by reason of the duties he was required to perform in the course of his employment with the defendant.
2 In the proceeding, the plaintiff relies upon two affidavits sworn 7 September 2015 and 10 November 2016 respectively, together with medical and like reports which formed the plaintiff's Exhibit A. The defendant relies upon medical reports, certificates of incapacity and rehabilitation documents which form the defendant's Exhibit 1. In addition, the defendant relies upon the affidavit of Dao Nguyen which attests to the plaintiff's capacity to understand and speak English. Further, in the course of the proceeding, the plaintiff gave viva voce evidence and was cross‑examined.
3 It is not in issue that the incapacity with which the plaintiff presents in his shoulders gives rise to a serious injury insofar as the consequences of that incapacity pertains to pain and suffering and loss of enjoyment of life. In these circumstances, the issue for my determination involves the question of whether or not the incapacity gives rise to consequences which meet the statutory threshold which a plaintiff must establish in order to be entitled to maintain a claim for pecuniary loss damages.
4 Given the concession made by the defendant in this regard, the cross‑examination of the plaintiff proceeded on the basis that very little challenge was made to the content of the plaintiff's affidavit evidence. That evidence in turn is a matter of record and no point is served in restating it in the course of my judgment. While I do not refer to it, I rely on it of course in my decision-making process in this instance.
5 The cross‑examination of the plaintiff was largely centred upon an examination of the plaintiff's work history and language skills for the purpose of testing the plaintiff's retained capacity for suitable employment in the context of further rehabilitation directed toward no aspect of increasing the plaintiff's tolerance for physical activity, but rather improving the plaintiff's language skills.
6 The medical evidence upon which the parties rely establishes that the incapacity with which the plaintiff presents as a result of the injury sustained to his shoulders operates so as to restrict him to light forms of employment which do not involve repetitive activities or movements which place pressure upon his shoulders.
7 The medical evidence of the plaintiff's various doctors, together with the consultants retained by the plaintiff and the defendant, is largely in agreement with the position stated above. For this reason, given the approach taken by the defendant in contesting the application, I do not propose to recite the content of the various medical reports, all of which I have taken into account, unless it is necessary to do so to disclose my path of reasoning in making my finding which I have in this instance, that the plaintiff is entitled to the relief which he seeks.
8 In the best tradition of a model litigant, the defendant quite appropriately limited its challenge to the plaintiff's application to one based upon what was described as involving the potential for the advancement in the plaintiff's rehabilitation associated with the plaintiff undertaking further education so as to improve his language skills. At the same time, it was conceded by the defendant that were the status quo to remain with respect to the plaintiff's capacity to both understand and speak English, his current modest level of capacity in that respect, when combined with the restrictions which his subject injury impose upon the physical work which he is now capable of, operate so as to make him effectively unemployable in the majority of occupations identified as giving rise to suitable employment for him.
MY FINDINGS AS TO THE EVIDENCE GIVEN BY THE PLAINTIFF
9 The plaintiff is 58 years old. He was born in Somalia where he was educated to a tertiary level. He has resided in Australia for 10 years, having fled Somalia, to Australia where he was granted refugee status. In Australia, he has undertaken mainly unskilled manual work.
10 I am satisfied that the plaintiff presented as an honest and reliable historian. No aspect of the cross‑examination demonstrated otherwise and no issue was taken as to the plaintiff's reliability or honesty in the course of closing submissions.
11 I am further satisfied, given the plaintiff's statements made to the various vocational assessors as to his willingness to consider their recommendations for alternative employment, when considered in the context of the plaintiff's viva voce evidence that the plaintiff retains a willingness to work in suitable employment. For the reasons set out below, I am satisfied that the plaintiff's continued unemployment arises primarily from the fact that no suitable employment has been identified as being available to him by reason of the combined effect of his physical incapacity and his limited English language skills. There can be no issue that the plaintiff's current English language skills are best described as being modest.
12 Having had the opportunity of assessing the plaintiff as he gave evidence, I am satisfied that it is appropriate to describe his English language skills as being quite limited. Whilst he demonstrated a reasonable ability to understand simple spoken English when he was addressed by a quiet and clear spoken conversation involving simple words, no issue was taken as to the plaintiff's evidence about the difficulty he currently has in processing the English language and speaking it, about which he gave evidence in the following terms:
A: "When I'm hearing it, if it is simple, I can understand a little bit, but talking is very difficult."
Q: "When you were hearing me speak, for example, do you understand the words as I say them or do you have to, in your mind, translate what I'm saying into your native language?"
A: "Like, when you're speaking a few words that I can hear and other words that I don't hear, then I start linking and try to get the meaning."
Q: "If you want to speak English, do you have to find the word in your native language and translate the word into English or do you just think of the English word that you want?"
A: "I first get it in my language and then I will do it in English because in English, it's not easy."
13 Whilst the plaintiff's English skills were identified as being sufficient by Ms Nguyen to allow the plaintiff to undertake the duties required of him in the course of his employment with the defendant, and Ms Nguyen attested in her affidavit to the fact that when she spoke to the plaintiff in English, he appeared to understand and respond appropriately, that the plaintiff was able to understand instruction and directions and to be trained for his duties in English, Ms Nguyen was not the plaintiff's direct supervisor and the plaintiff gave evidence that he had no recollection of dealing with her.
14 I am satisfied in these circumstances that Ms Nguyen's comments as to the plaintiff's verbal skills involved most probably an impression of those skills, rather than any practical testing or assessment of them.
15 Further, it is clear that Ms Nguyen did not take into account the fact that the plaintiff's ability to understand instructions may well have involved the combination of both verbal and visual inputs, the latter arising through the plaintiff being able to observe the process in question and to gain an understanding of that process through a combination of both observation and verbal instruction and in that sense, that his apparent compliance with instruction may have provided no real insight into the strength of his verbal skills.
16 Whilst no issue was taken as to the veracity of Ms Nguyen as a witness, I am satisfied that I should approach the reliability of her assessment as to the plaintiff's capacity in English with caution, given her limited dealing with the plaintiff, particularly in light of the concession made by the defendant that the plaintiff's current capacity in spoken English is such that it would largely preclude him from employment.
17 The plaintiff accepted in cross‑examination that his employment with the defendant involved some aspects of training and instruction which occurred intermittently but was nevertheless of an ongoing nature. The plaintiff was questioned as to that process and in my opinion his answers to those questions revealed no more than the fact that the plaintiff was assisted in his understanding of his instructions by the fact that he worked as a team member and that his understanding was derived through a combination of both some basic understanding of spoken English, the simplicity of the instruction involved and the plaintiff's ability to learn through observation. The strong impression I formed of the plaintiff as he gave his evidence was that he was reliable and demonstrating that he had some ability in understanding spoken English but that his ability to converse in English was limited and predicated upon his requirement to think in his native language and translate those thoughts into the English language.
18 The plaintiff's ability to read English and understand the written word was in my opinion demonstrated as being poor. The task undertaken by the plaintiff in the witness box of reading the letter addressed to him on behalf of the defendant in which he had been assessed as being a suitable candidate to undergo a further English course revealed the fact that whilst the plaintiff was able to appropriately pronounce many of the words appearing in the first paragraph of that letter, he had no real understanding of the meaning of the words or the content of the paragraph.
19 I am satisfied that the plaintiff, in reading aloud the paragraph and explaining his understanding of it, was undertaken with the plaintiff doing his best to demonstrate his true ability to comprehend the written word.
20 When the plaintiff's inability to understand the simple task involved in completing his medical certificates which required him to mark a box indicating whether or not he had worked during the relevant period is taken into account, I am satisfied that the evidence establishes that the plaintiff possesses very little skill indeed in deciphering the written English language.
21 There is no issue that since arriving in Australia the plaintiff has undergone no fewer than three English language courses and that although his participation in those courses has resulted in improvement on each occasion, his language skills remain extremely limited. It is put on behalf of the defendant that with further education, the plaintiff's language skills will improve to such an extent that the plaintiff will develop at least the ability to speak English with sufficient prowess to undertake the duties involved in one or other or each of the following occupations: carpark attendant, transfer station attendant, weighbridge operator, teacher's aide, product quality controller or bench assembler, sales assistant, customer service person, clerical worker.
22 I am satisfied that with the exception of the activities required in the occupation of quality controller or bench assembler that each of the above occupations most probably involve physical activity which is within the plaintiff's stabilised physical capacity. The work associated with product quality controller was assessed by Dr Yong as involving duties which were likely to be suitable for the plaintiff. Dr Yong opined, however, that to be employed in such an occupation, the plaintiff would be required to undertake those tasks initially on a reduced hourly rate of approximately 20 hours per week and would be graduated back to full‑time employment over a three to four‑month period. In my opinion, the existence of such a graduated work process is unrealistic in the open working market in which the plaintiff would be dealing. Further, it was nowhere suggested by the IPAR vocational assessor that such a market existed.
23 Dr Eaton opined that the tasks involving the duties of a product quality controller involved regular use of the plaintiff's arms and for that repetitive or sustained use, the plaintiff's upper limbs, even in light employment were no longer up to the task. I find this analysis by Mr Eaton to be more persuasive than that undertaken by Dr Yong, having regard to the plaintiff's history of symptomology which is not in issue in this instance. For these reasons, I am satisfied that the physical activities involving the occupation of product quality controller or bench assembler are now beyond the plaintiff's stabilised physical capacity.
24 In reality, I am satisfied that the authors of the various vocational assessment reports at Defendant's Court Book 66 and 94 respectively undertook their assessment of the plaintiff's identified suitable employment options on the basis of an unrealistic assessment of his transferable skills.
25 In the report at Defendant's Court Book 66, those skills were listed as including an ability to follow instruction and to problem solve. They failed to take into account the fact, however, that any such abilities, if demonstrated in employment with the defendant, may well have arisen not by reason of the plaintiff's level of English but rather through the processes to which I discussed when dealing with the evidence of Ms Nguyen.
26 In the report at Defendant's Court Book 94, the plaintiff's transferable skills were assessed on the basis that the plaintiff presented with average reading, writing and literacy skills which in my opinion involves a considerable misstatement of each of those skills which should, on the basis of the assessment form, in my view completed by the author, have been categorised as being below average.
27 On behalf of the defendant, no issue was taken that to be employed in any of the mooted remaining occupations, with the exception of bench assembler, the plaintiff would have to make considerable improvement in his ability to speak English. In my opinion, to suggest the plaintiff would be likely to gain the skills in both written and verbal English required to undertake the task of teacher's aide which would require the plaintiff to obtain the Certificate of Education Support from Monash University, thereafter assist teachers with learning across all subjects and to perform clerical support in the general office and to grade assignments is so unlikely that it borders on the absurd.
28 Further, that the plaintiff's speaking and writing skills would be likely to develop to such an extent that he would be able to undertake the tasks required of him in each of the following occupations, namely:
· clerical support officer, who is required to take minutes of meetings, oversee participation in programs and courses and maintain stock levels which would require him to maintain files and records and complete paperwork and deal with inquiries from internal and external customers;
· a sales assistant, where he would be required to determine customer requirements, advise on product range, price, delivery, warranties, product use and care, demonstrate and explain to customers the goods and services available to them and assist in the ongoing management of stock and participate in stocktaking;
· a customer service operator which would involve meeting and greeting customers and providing catalogues, promotional material and information on shipping time costs and store services and answering customers' inquiries, including resolving complaints and dealing with requests for refunds, exchanges, repairs, replacements and adjustments
are equally as unlikely as the plaintiff being able to attain the skills associated with the task involved in being a teacher's aide.
29 Clearly the level of English required of the plaintiff in performing the occupation of a carpark attendant or a recycle customer service attendant would be far less sophisticated than that involving the occupations to which I have referred.
30 The work of a recycle customer service attendant would require the plaintiff to meet and greet incoming vehicles, input basic data into a computer program and provide customer service. The duties involved in the latter task were not explained by the assessor. In closing submissions it was put on behalf of the defendant that those duties would likely involve answering questions and providing information. The plaintiff has never been involved in any work in which he is required to speak English when dealing with members of the public generally or to engage in unstructured conversation or to provide information or deal with inquiries about seeking information which may be unanticipated from and by members of the public.
31 The plaintiff's current level of English is such that before he can formulate the sentence, he must formulate the words which he wishes to express in English in his native language and then convert the thought process into the English language. Whilst it may be that within a structured environment such as the defendant's workplace which the plaintiff has only to deal with a limited range of verbal instruction and demands, the plaintiff's English skills were sufficient. In my opinion, the progression in language fluency required to equip the plaintiff with the skills to be able to converse reasonably fluently in unstructured conversation in which he is required to deal with questions directed to him without notice upon topics which may involve some analysis or a nuance would involve a quantum leap in the plaintiff's verbal skills which in turn is unlikely, having regard to the plaintiff's history of acquiring only very basic language skills, notwithstanding being present in Australia for 10 years and having undertaken a number of English language courses.
32 In my opinion, the language skills required of a carpark attendant would clearly involve interacting with customers and would be likely to fall into a similar category. Whilst it might be said that for the most part the conversation between a carpark attendant and a customer may be limited, it could not be contended, in my opinion, that the language skills required of a carpark attendant would not need to be sufficient to deal with any number of spontaneous conversations involving topics such as customer complaints associated with fees charged, directions as to where a customer should park or complaints about where some other customer had parked. A classic example being that a car had been parked in one customer's designated parking spot and it should be moved. It might further involve a request by a customer for assistance with a flat battery or some other problem which may require telephone contact with a towing company.
33 In my opinion, for the reasons which I have earlier spoken about, I am satisfied that the plaintiff is unlikely to develop the English skills which would enable him to undertake the full range of activity involved in the occupation of carpark attendant.
34 Whilst there is an absence of any medical evidence or like evidence to assist me in arriving at my decision as to whether the defendant's position that the plaintiff with further training in English will make such progress that it is likely that any of the work identified as being potentially suitable for him subject to that progress will become a realistic employment offer, I am satisfied, having regard to the plaintiff's age, now 58, his lack of progress to date in acquiring reasonable language skills in spoken English and written English, notwithstanding his attempts to do so by attempting three language courses, the last one of which he failed, results in my satisfaction on the balance of probabilities that whilst further study may marginally improve the plaintiff's language skills, it is unlikely that he will develop the skill to read, write or speak with sufficient prowess to undertake any of the occupations identified as giving rise to suitable employment for him, having regard to his physical incapacity.
35 For these reasons, I am satisfied that the plaintiff is entitled to the leave which he seeks in this instance.
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