Sanderson v Woolworths Limited
[2019] VCC 106
•15 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for publication |
SERIOUS INJURY LIST
Case No. CI-17-03379
| SONIA ANNE SANDERSON | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
---
JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 January 2019 | |
DATE OF JUDGMENT: | 15 February 2019 | |
CASE MAY BE CITED AS: | Sanderson v Woolworths Limited | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 106 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left leg and low back
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015; State of New South Wales v Moss (2000) 54 NSWLR 536; Graham v Baker (1961) 106 CLR 340
Judgment:Leave granted to the plaintiff to bring proceedings for pecuniary loss damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr D McWilliams | Hall and Wilcox |
HER HONOUR:
Background
1 In April 2010, the plaintiff was employed with the defendant, Woolworths Limited, working part time at Big W at Epping Plaza Shopping Centre, 20 hours per week, between the hours of 7.00pm to 11.00pm three nights per week and between 8.00pm to 12.00pm two nights per week. Her job involved lifting pellets, moving stock onto the shop floor and filling shelves.
2 On 29 April 2010, at approximately 12.15am, as the plaintiff was leaving the building, she slipped on the stairwell at the back of the Centre. The steps were wet because it had been raining. The light in the stairwell was not operating. The plaintiff injured her left leg (“the incident”).
3 As a result of her injuries, the plaintiff was taken to the Northern Hospital, where she was diagnosed with a fracture to her left leg. She underwent surgery. The fracture did not heal properly and in April 2011, she underwent further surgery which involved revision fixation. In August 2011, she felt pain in her back and numbness in her left leg. In September 2011, she underwent a CT scan of her back and was diagnosed with an injury to the lumbar spine, including the development and/or aggravation of Grade 1 spondylolisthesis and injury at the L5-S1 disc level.
4 The plaintiff had a Certificate IV in Outside School Hours Care. At the time of the incident, the plaintiff was also working for Camp Australia in a relieving coordinator’s position at Ivanhoe Grammar School, working from 3.00pm to 6.00pm before going to her job at Big W. Up until 2010 she had worked at St Luke’s Primary School and then at St John’s Primary School doing before and after school care. She completed years 11 and 12 at the Council of Adult Education whilst she worked with the defendant and St Luke’s Primary School. It was her intention to undertake study to become a primary school teacher.
5 At the time of the incident the plaintiff was under twenty-six years of age.
Application
6 This is an application by the plaintiff for leave to bring proceedings for the recovery of damages pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by the plaintiff to the left leg and consequential injury to her low back which she alleges was caused in the course of her employment with the defendant.
7 The plaintiff alleges that the injury is a “serious injury” within the meaning of paragraph (a) of the definition of “serious injury”. The relevant body function in which there has been an impairment or loss is the left leg and consequential injury to her low back.
8 The plaintiff relied upon three affidavits: two sworn by the plaintiff on 18 April 2016 and 21 January 2019; and an affidavit sworn by her husband, Paul Sanderson, on 29 January 2019. The plaintiff was cross-examined. I have not summarised the evidence, including the affidavits of the plaintiff; however, I will refer to the relevant evidence of the plaintiff and her husband, Mr Sanderson, in my reasoning. In addition, both parties relied on medical reports and other materials which were tendered in evidence. I have read all the tendered material.
The issue
9 The defendant concedes that the plaintiff has suffered a serious injury in relation to the left leg and consequential injury to her low back for pain and suffering purposes. The issue to be determined by the Court is whether the plaintiff has suffered the requisite loss of earning capacity of 40 per cent or more which will continue indefinitely.
The credit of the Plaintiff
10 The plaintiff’s credit was not in issue. She answered questions directly and without exaggeration. She was straightforward in her presentation in court. She sought clarification when she did not understand the question. She made concessions in relation to the housework she performs.
11 There was no suggestion in the medical evidence that the plaintiff’s credit was an issue. Mr Dooley described the plaintiff as a “sensible and genuine historian who had been fully cooperative in her treatment”. He said there were no objective signs of illness behaviour.
12 There was no real challenge to the plaintiff’s credit by counsel for the defendant. There was no extraneous material, for example video surveillance, relied on by the defendant to attack the plaintiff’s credit. Many of the consequences relied upon by the plaintiff are referred to in the plaintiff’s husband’s affidavit. For example, the pain and tiredness she experiences after working extra hours and the time it takes to recover from working longer shifts. The evidence of the plaintiff’s husband’s was not challenged.
13 The plaintiff impressed me. She was motivated to look for modified work, pursue study and retrain as a swimming instructor, ultimately finding employment as a swimming instructor, a job which she enjoys.
Loss of earning capacity – under 26 years of age
14 The plaintiff must establish that at the date of the hearing she had a loss of earning capacity of forty per cent or more, which will continue permanently.
15 As the plaintiff was under twenty-six at the time of suffering her injury, the formula in s134AB(38)(f) does not apply. This means that the “3 years before and 3 years post injury period” are irrelevant and I am not required to consider the issue of “suitable employment” as defined in the Act. The issue of retraining and rehabilitation do not apply.[1] I can have regard to the availability of employment. Accordingly, I can have regard to the probable income from personal exertion which the plaintiff would have earned but for the injury over her probable earning life. This means the usual common law position prevails.[2]
[1]Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015 at paragraphs [144-147]
[2]See Accident Compensation (Common Law and Benefits) Bill, Second Reading Speech, 23 May 2000; M M Gould
16 Accordingly, I must consider the evidence concerning loss of earning capacity. I was referred to what Heydon J said in the State of New South Wales v Moss.[3] The following principles were stated:
[3](2000) 54 NSWLR 536
(a) Evidence of past economic loss is some, though not conclusive, evidence of reduced earning capacity;[4]
[4](Supra) at paragraph [64]
(b) In general it is desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what she is likely to earn after it;[5]
[5](Supra) at paragraph [66]
(c) Where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work she can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment on a percentage basis or otherwise, of the value of the lost capacity;[6]
[6](Supra) at paragraph [72]
(d) The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss.[7] It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities;
[7](Supra) at paragraph [71]. See Graham v Baker (1961) 106 CLR 340 at 347
(e) The mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is not entitled to a nominal sum;[8] and
(f) The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinate criteria with fairly wide parameters.[9]
[8](Supra) at paragraphs [72] and [74]
[9](Supra) at paragraph [87]
17 The evidence in respect to loss of earning capacity is at the time the plaintiff suffered her injury, she was employed in a part-time capacity and working two jobs:
(a) working 20 hours per week for the defendant unloading pellets, moving stock onto the shop floor and filling shelves; and
(b) performing afterschool care for Camp Australia at Ivanhoe Grammar School for approximately 20 hours per week.
18 The plaintiff had undertaken further study and it was her intention to further her education and become a primary school teacher.
The current medical evidence
19 The current medical evidence is that the plaintiff cannot resume pre-injury employment. This was accepted by the defendant’s counsel. Both counsel accepted that it was unclear as to whether the medical witnesses were referring to employment with the defendant as well as the after school care when referring to her capacity for pre-injury employment.
20 In the plaintiff’s affidavit of 18 April 2016 in paragraphs 2 and 36, the plaintiff deposes to the nature of her employment with the defendant, as well as her employment of before and after school care work with various employers, including Camp Australia at Ivanhoe Grammar School.
21 Mr Kossman, orthopaedic surgeon, was provided with the plaintiff’s affidavit of 18 April 2016.[10] I accept that it is reasonable to assume that in his report dated 22 November 2018, Mr Kossman was aware of both employments.
[10]PCB 106
22 Mr Kossman examined the plaintiff in November 2018 and was aware that she was working as a casual swimming teacher. Mr Kossman was of the opinion that the plaintiff should avoid working in physically demanding work. He said that the plaintiff could work full time on light/modified duties with restrictions. He thought her prognosis in relation to her left knee and lumbar spine was poor and that she would require further treatment in the future.
23 Dr Aliashkevich, neurosurgeon and spinal surgeon, does not refer to the documents provided to him. He was engaged by the plaintiff’s solicitors. One would assume that he would have been provided with the same documentation as that provided to Mr Kossman. Dr Aliashkevich, in his report of 9 October 2018, only referred to the plaintiff’s employment with the defendant. Further, Dr Aliashkevich imposed specific restrictions of sitting, standing, bending and lifting on the plaintiff which would limit the plaintiff from returning to work with Camp Australia. He did not see the plaintiff achieving full functional recovery in the foreseeable future.
24 In September 2018, Dr David Murphy, consultant physician in rehabilitation medicine, examined the plaintiff at the request of the plaintiff’s solicitor. He referred to the letter of request from the plaintiff’s solicitor, and stated he had read the medical reports provided. He obtained a history from the plaintiff of working for the employer part time, and working 20 hours a week as an afterschool care coordinator.
25 Dr Murphy considered the plaintiff was very likely to develop early osteoarthritis in the left knee which may require surgical treatment such as a left knee replacement in the future years. He said it was important that she not be exposed to excessive periods of weight bearing or force over the left knee as it may hasten the development of the degenerative process. Taking the left lower limb injury in combination with the spinal injury, he said the plaintiff has very limited capability of undertaking employment with more than a very sedentary physical component. I accept that such restrictions would preclude the plaintiff from returning to afterschool care work or undertaking work as a primary school teacher.
26 Dr Murphy was aware that the plaintiff was performing some swimming teaching and that she wished to increase her hours. He thought it the most suitable work for the plaintiff. He was aware that full-time work as a swimming instructor was not available. He said he did not think that she would be able to undertake any reliable consistent work of more than 12 to 15 hours per week. The work would need to be carefully assessed, and monitored. He expected that she will continue to develop long-term problems with the left knee and she will require further surgery which may be a unity compartment or total knee replacement at some stage in the future. He did not expect that she would need surgical intervention with regard to the lumbar spine in the foreseeable future.
27 The plaintiff was medically examined by Mr Michael Dooley, orthopaedic surgeon, at the request of the defendant’s solicitor. It is unclear whether Mr Dooley knew of the plaintiff’s aftercare work at the time of the injury. He considered the plaintiff would continue to note intermittent pain and discomfort in the left lower limb and that she would be at a small risk of developing post-traumatic osteoarthritis of her left knee joint in time.
28 Mr Dooley re-examined the plaintiff in October 2018 and was aware that she was continuing to note ongoing low back pain. He obtained a history that the plaintiff was currently working as a swimming teacher, working 9 hours per week. He was aware that she suffered gradual increasing low back pain and accepted that her underlying lumbar spine condition could have been aggravated by the work injury. He said that the plaintiff could return to suitable employment such as the work she was performing as a swimming instructor. In addition to her swimming instructor work, he hoped that she could return to suitable work in relation to clerical-type work and/or like duties. He expected she could increase her hours in relation to swimming teaching to around 15 to 20 hours per week, increasing to these hours at around one hour per week. He said that she had a physical capacity to carry out light physical work and clerical duties. On the plaintiff’s evidence, she does not have clerical work available to her in her current employment.
29 In November 2018, the plaintiff was medically examined by Dr Malcolm Brown, an occupational physician, at the request of the defendant’s solicitor. Dr Brown obtained a history of the plaintiff working for the defendant, and as an afterschool care coordinator. He was provided with medical reports which were not current. He was aware the plaintiff was presently working as a swimming instructor for 10 to 15 hours per week. He accepted that the plaintiff would have difficulty with completely unrestricted pre-injury duties due to both the walking and bending involved. He considered she had a capacity to undertake her current work tasks as a swimming instructor on a full-time basis. He was the only medical witness to reach this conclusion.
30 In January 2019, Dr Brown was provided with a vocational assessment report of Co-Work Pty Ltd dated 31 December 2018, prepared by an occupational therapist. Co-Work Pty Ltd was provided with reports from Mr Dooley but not with the reports from Dr Murphy, Dr Aliashkevich or any occupational physician. Co-Work Pty Ltd listed job options of swimming instructor, customer service officer, teacher’s aide and sales representative. Dr Brown considered the plaintiff had a physical capacity to undertake each of the jobs in the vocational assessment report on a full-time basis. He said none of the jobs involved physically demanding tasks such as heavy lifting or constant use of ladders or stairs. He did not expect that there would be significant change in her functional capacity in the short or medium-term. He said as her fracture extended through the knee joint, there is a long-term possibility of post-traumatic osteoarthritis. This could affect her functional capacity in future years, with increased risk from her overweight.
31 The plaintiff was examined by Ms Katrine Green, psychologist, at the request of the plaintiff’s solicitors. In her report dated 7 December 2018, she said the plaintiff was unable to perform the inherent duties of a shelf packer, hand packer, kitchen hand, retail sales (various), cashier, checkout operator, call information desk, clerical and office support worker. In reaching her conclusion, she considered the requirements of the jobs and the specific restrictions imposed by Dr Murphy and Dr Aliashkevich.
Loss of earning capacity
32 In respect to loss of earning capacity, it is necessary for me to consider the plaintiff at the present time.
33 The plaintiff’s evidence in relation to her day-to-day restrictions on her capacity was as follows:
(a) she needed to lie down for between five minutes and one hour each day;
(b) she was restricted in driving, sitting, standing and sleeping;
(c) her knee and back pain have increased since the beginning of 2012;
(d) she suffered increased pain and found it taxing when she worked 20 hours in a week,[11] she struggled to complete 30 hours per week[12] and has worked to 15 hours in a week but broken it up through the week[13]
[11]PCB 27
[12]T40.2 and T53.9
[13]T53, L13-15
34 I accept the plaintiff does not have the capacity to perform work as a primary school teacher based upon the restrictions identified by Dr Murphy and Dr Aliashkevich. I accept that the most appropriate employment reflective of her capacity is part-time work as a swimming instructor. I base this upon:
(a) the plaintiff’s evidence concerning her difficulty performing 15 and 20 hours per week and her evidence that in the water her body is buoyant and she can do things that she cannot do on land; and
(b) Dr Murphy estimates that the plaintiff can work 12 to 15 hours per week, and Dr Aliashkevich said the plaintiff could work part-time employment as a swimming instructor. This was supported by the evidence of Mr Dooley, who estimated 15 to 20 hours per week.
35 I accept the plaintiff is not capable of full-time employment in administrative work, which is consistent with the evidence of Dr Murphy and Dr Aliashkevich, because of the limitations on her ability to sit or stand and because of her general restrictions such as the necessity to lie down for some part of each day.
36 I take the view that the plaintiff would be unable to work as a primary school teacher, even if she was retrained, given the restrictions and limitations she experiences.
37 Both counsel addressed me on the forty per cent loss of income. The Act requires that there be a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[14] I accept that based on the medical evidence and the evidence of the plaintiff, that she has a capacity for only part-time work, probably 19 hours per week.
[14]Section 134AB(38)(e)(i)
38 In the financial year ending 30 June 2010, the plaintiff earned $35,393. Flexi Personnel[15] identified an increase in potential earnings over the following eight years if employed by the defendant of $6,083. I accept the submission of counsel for the defendant that I should take into account the income the plaintiff was earning from afterschool care. Accordingly, her current earnings would be $44,241. The 60 per cent threshold is $26,544, which is $510 per week. I accept that the plaintiff probably has a current capacity for 19 hours per week on average, at $26 per hour, which is not the lowest hourly rate. Adopting these figures, the weekly rate would be $494, which is under the 60 per cent threshold.
[15]PCB 118
39 Most of the medical practitioners identified that the plaintiff is likely to suffer from advanced degenerative changes in the future that may require surgery. I accept that this is something that is likely to affect her work capacity in the future. I also accept that the plaintiff exhibited motivation to retrain, re-enter the workforce and that her current part-time employment as a swimming instructor probably will best reflect her capacity which is resultant in a greater than 40 per cent loss of earnings.
40 Accordingly, I am satisfied that the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
41 I therefore grant leave to the plaintiff to bring proceedings for pecuniary loss damages.
42 I will hear the parties on costs.
- - -
6
4
0