Scagliarini v Marymede Catholic College
[2019] VCC 183
•8 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-03705
| STEVEN SCAGLIARINI | Plaintiff |
| v | |
| MARYMEDE CATHOLIC COLLEGE | Defendant |
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| JUDGE: | HER HONOUR JUDGE TSALAMANDRIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 and 19 February 2019 |
| DATE OF JUDGMENT: | 8 March 2019 |
| CASE MAY BE CITED AS: | Scagliarini v Marymede Catholic College |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 183 |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the neck – pre-existing – aggravation – psychiatric injury – pain and suffering – loss of earning capacity – permanence.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; The Herald & Weekly Times Ltd v Jessop [2014] VSCA 292; Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170
Judgment:Leave granted to the plaintiff to bring proceedings for pain and suffering and loss of earning capacity damages
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| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Ms M Pilipasidis with Mr Yi-Chuan Chen | Maurice Blackburn |
For the Defendant | Mr B McKenzie | Minter Ellison |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
Preliminary
1Mr Scagliarini is a 59 year old man who suffered an injury to his neck on 23 March 2015, while moving a heavy high jump mat in the course of his employment as a physical education teacher. Save for a three week period in which he taught at a local primary school, Mr Scagliarini has not otherwise returned to work after this incident. Had he not suffered this injury, Mr Scagliarini claims that he would have pursued his ambition to become an Assistant Principal.
2In order for Mr Scagliarini to be entitled to claim common law damages, he must satisfy me that the impairment to his spine satisfies paragraph (a) of the definition of serious injury contained in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
3The defendant accepts that Mr Scagliarini injured his neck during the course of his employment with the defendant, that he required surgery, and that he now suffers a permanent impairment. However, it disputes that the consequences of his spinal impairment can be described as at least very considerable, either in respect of his pain and suffering or his loss of earning capacity.
4Mr Scagliarini was called to give evidence and he was cross-examined. Also in evidence were affidavits from Mr Scagliarini’s wife and the defendant’s Principal, as well as numerous medical reports and other material. I have read these 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 reached in this judgment.
Mr Scagliarini’s life before suffering his neck injury in March 2015
5Mr Scagliarini is married with two children, both of whom live at home.
6Mr Scagliarini was born in Egypt and migrated to Australia when he was three years of age. After finishing Year 12, Mr Scagliarini went on to obtain a teaching degree and thereafter commenced work as a teacher. He worked at numerous schools throughout the course of his career, including John Paul College and Padua College.
7In August 2006, Mr Scagliarini resigned his employment at Padua College, and subsequently undertook emergency relief teaching, while also working with his wife in a café they jointly owned.
8Mr Scagliarini said that while he loved being a sports teacher, he felt that he had more to offer within a school. He described having an “epiphany”, such that he decided he wanted to finish his educational career as a Principal.
9In early 2010, Mr Scagliarini commenced his Masters of Education (Educational Management). He said that he undertook this further qualification in the hope of moving into middle management within the teaching profession. In her affidavit, Mr Scagliarini’s wife corroborated his evidence, that it had been Mr Scagliarini’s ambition and intention to use his further study in this way.
10In approximately November 2010, Mr Scagliarini experienced pain in his neck and was subsequently referred by his general practitioner to sports physician, Dr Leesa Huguenin. At that time, Dr Huguenin arranged for an MRI scan to be taken of Mr Scagliarini’s cervical spine, which was reported as demonstrating a left-sided C6-7 disc prolapse with nerve root encroachment. Dr Huguenin then arranged for a left C6-7 transforaminal epidural to be performed, following which Mr Scagliarini said that he made a full recovery. He said that he did not have any ongoing problems with his neck until the incident the subject of this claim.
11On the day that he graduated from his Masters course in December 2011, Mr Scagliarini accepted an offer of employment with the defendant, as Head of Sports and Physical Education. Mr Scagliarini estimated that he spent 80 per cent of his time in this role engaged in hands on physical activity, including
walking, jogging, running, squatting, kneeling, jumping, throwing and catching. He was also required to participate in a number of different sports, and to move equipment in the course of setting up and packing up for sports classes.
12The defendant’s school was located in Morang, approximately 90 minutes from Mr Scagliarini’s home. Both Mr Scagliarini and his wife said that he agreed to take on this role with the defendant on the basis that it was a relatively new school, and that Mr Scagliarini saw it as an opportunity for career advancement.
13Prior to suffering his injury the subject of this claim, Mr Scagliarini said that he was fit and healthy. He said that he swam frequently and enjoyed surfing, golfing and playing tennis.
Mr Scagliarini’s neck injury and the claimed consequences
14On 23 March 2015, at approximately 8.00am, Mr Scagliarini said that he was moving a high jump mat in the school gym which weighed approximately 100 kilograms. Mr Scagliarini said that he was attempting to drag the mat, in order to then lift it up onto the wall, so as to move it out of the way. While moving the mat, Mr Scagliarini said that he experienced a twinge in his neck together with strong pain which radiated down into his left arm. He said that he took a break for a few minutes, but otherwise remained at work for the rest of the day, and simply avoided any activities that required heavy lifting or in which he would be placing a strain on his neck.
15On 27 March 2015, due to persisting pain in his neck, Mr Scagliarini attended upon Dr Huguenin, whom he had previously seen for neck pain in 2010. Dr Huguenin prescribed Mr Scagliarini analgesia and anti-inflammatory medication, including Prednisolone, and arranged for an MRI scan to be taken of his cervical spine.
16On 6 April 2015, Mr Scagliarini experienced chest pain and shortness of breath. He was subsequently taken by ambulance to the Frankston Hospital, and was later transferred to the Peninsula Private Hospital, where he was diagnosed as
having suffered a myocardial infarction. Mr Scagliarini said that he underwent a coronary angiogram, and commenced taking Aspirin and other medication to prevent further cardiac events. He said that he continues to take such medication, and that his heart condition does not cause him any ongoing issues.
17On 11 April 2015, an MRI scan was taken of Mr Scagliarini’s cervical spine, which was reported as demonstrating severe left-sided neural foraminal stenosis at C5-6, with compression of the C6 nerve root, and moderate left- sided neural foraminal stenosis at C6-7, contacting the exiting left C7 nerve root.
18On 20 April 2015, Mr Scagliarini received a left-sided C6 nerve root block, from which he said that he obtained no benefit.
19On 15 May 2015, Mr Scagliarini received a C7 nerve root block, again without any benefit.
20At about this time, Mr Scagliarini attended Pinnacle Physiotherapy for treatment of his ongoing neck pain, and with complaints of headaches. Mr Scagliarini reported that such treatment did not assist in alleviating his neck pain.
21Mr Scagliarini subsequently developed depression and anxiety associated with his neck injury and his inability to attend work, for which his general practitioner referred him to psychologist, Dr Helen Kothrakis. Mr Scagliarini said that he consulted Dr Kothrakis for a period of time before later obtaining counselling from psychologist, Ms Sue Lawrence.
22As his neck pain persisted, Mr Scagliarini’s general practitioner, Dr Joseph Thoppil, referred him to neurosurgeon, Dr Ales Aliashkevich. At his first consultation in June 2015, Dr Aliashkevich considered Mr Scagliarini to be a possible surgical candidate. However, at that time, he recommended conservative treatment, as Mr Scagliarini had not fully recovered from his recent myocardial infarction.
23On 6 February 2016, after having allowed Mr Scagliarini’s heart condition to fully recover, Dr Aliashkevich performed an anterior cervical discectomy and fusion at the C5-6 and C6-7 levels. Following this surgery, Mr Scagliarini obtained physiotherapy treatment.
24Mr Scagliarini said that the surgery improved the numbness he had experienced into his arms, but that he continued to experience constant neck pain.
25In November 2016, Dr Aliashkevich arranged for Mr Scagliarini to consult occupational physician, Dr David Eaton. In a letter dated 24 November 2016, Dr Eaton noted that Mr Scagliarini reported a limited range of motion in his head and neck, as well as neck pain that increased throughout the course of the day, as well as significant tiredness. Dr Eaton was of the opinion that Mr Scagliarini should permanently avoid the following activities on the basis that they exacerbated his pain:
· fixed or repetitive head or neck flexion, extension or rotation;
· manual handling, with a lifting restriction of 12 kilograms (when the load is close to the torso) or 3 kilograms (when the load is more than 30 centimetres from the torso) or pushing and pulling with a horizontal force of more than 10 kilograms;
· prolonged sitting while driving.
26At that time, Dr Eaton noted that Mr Scagliarini was able to drive for a maximum of 60 minutes. In such circumstances, Dr Eaton considered it reasonable for Mr Scagliarini to work within 60 minutes of his home. Dr Eaton ultimately recommended that Mr Scagliarini seek to obtain a position within those limitations, at a school closer to his home. Alternatively, Dr Eaton recommended that Mr Scagliarini consider a self-employment venture, working as a tutor. If neither of those options proved successful, Dr Eaton
recommended that Mr Scagliarini return to him for further assistance in identifying suitable employment.
27In February 2017, in order to determine his ongoing entitlement to weekly payments, the statutory insurer arranged for Mr Scagliarini to be interviewed by vocational assessors, IPAR. In a report dated 27 February 2017, it was suggested that Mr Scagliarini was capable of undertaking employment in the following occupations:
(i)secondary school teacher;
(ii)vocational educator;
(iii)tutor;
(iv)administration officer/enrolment officer;
(v)customer service assistant/enquiry clerk.
28In August 2017, Dr Thoppil wrote to Mr Scagliarini’s income protection insurer, in response to an enquiry relating to his capacity to return to employment. His letter, dated 27 August 2017, stated that Mr Scagliarini had been left with long- term functional deficit in his neck, reduced neck and arm movements, and pain. Dr Thoppil also noted that Mr Scagliarini had suffered anxiety, which caused a significant reduction in his concentration, motivation and sleep. He was of the opinion that Mr Scagliarini was unfit to work as a sports teacher, due to his combination of physical injuries and his ongoing anxiety. However, Dr Thoppil thought that Mr Scagliarini might possibly be able to return to work as a secondary school teacher, or to work as a program or project administrator, “if his anxiety/adjustment disorder improves” and the job was located within 30 minutes of his home. Dr Thoppil stated that any employment would not be able to involve any lifting or manual handling, and would require a restriction in neck and arm movements.
29In 2018, Mr Scagliarini said that he had applied for a number of teaching positions, including at Chisholm Institute, and as Program Manager of Social Science at Holmesglen TAFE. Mr Scagliarini was unsuccessful in those applications. He was, however, able to obtain some casual relief teaching at Osborne Primary School in Mount Martha, where he worked on and off for approximately three weeks.
30Dr Thoppil continues to provide Mr Scagliarini with medical certificates certifying him as unfit for all work. In his most recent report dated 17 December 2018, Dr Thoppil stated that Mr Scagliarini still suffered ongoing neck pain and stiffness, which radiates into his left shoulder and arm. Dr Thoppil noted that Mr Scagliarini struggles to get comfortable at night. In addition, it was noted that he suffers anxiety and depression from his “insomnia, pain, end of his career, job satisfaction and financial losses”. Dr Thoppil was of the opinion that Mr Scagliarini did not have the physical or psychological capacity to return to work as a teacher, but thought him capable of performing alternative work, including as a vocational educator, tutor, administrative officer or customer service assistant, provided his mood and anxiety were adequately treated.
31Mr Scagliarini said that he continues to suffer constant pain in his neck, which varies in intensity from day to day, and that he does not know how he will feel on any given day. He said that his neck pain is aggravated when his neck is fixed for prolonged periods of time, and that he becomes uncomfortable when driving for more than 30 minutes.
32Mr Scagliarini said that he has also continued to experience numbness in his left arm and his right hand. In particular, he said that he feels his right hand is weak, such that he has difficulty opening jars and tightening objects.
33Mr Scagliarini said that he finds it difficult to get comfortable in bed due to his neck pain and restricted movement, and that even after falling asleep, his sleep is still disturbed.
34As a consequence of his ongoing neck injury, Mr Scagliarini also said that he no longer plays golf or tennis. He is, however, still able to swim and go for walks.
35Mr Scagliarini said that he is able to help with household duties and is also able to tutor his daughter.
Medico-legal and vocational opinions
36Mr Scagliarini’s solicitors arranged for him to be examined by Dr P D Clark in October 2018. In his report dated 25 October 2018, Dr Clark detailed Mr Scagliarini’s history, the treatment he had received, his findings on examination and his diagnosis. Dr Clark then commented as to the restrictions that were imposed on Mr Scagliarini by reason of his neck injury, and stated that, in his opinion, Mr Scagliarini was not fit for his pre-injury employment or any of the jobs identified in the IPAR report.
37It is not apparent from Dr Clark’s report what kind of doctor he is, and whether or not he has any specialisation. I also considered his report to be vague and lacking in specific detail as to the nature and extent of Mr Scagliarini’s physical restrictions. In such circumstances, I gain no assistance from this report.
38Mr Scagliarini’s solicitors also arranged for him to be examined by medico-legal psychiatrist, Dr Brendan Hayman, in November 2018. While Mr Scagliarini did not persist with his claim that he suffered a severe psychiatric disorder, Dr Hayman’s report was still tendered under s325 of the Act, as Mr Scagliarini had been cross-examined on the history it contained. In particular, Dr Hayman reported that Mr Scagliarini had not persisted in his employment at Osborne Primary School after the initial three week period, as he had disliked the primary school environment and the noise. In cross-examination, Mr Scagliarini said that he “loosely” agreed with Dr Hayman’s description as to what had occurred at Osborne Primary School. Mr Scagliarini stated that the primary school was a noisy place, and he believed his pain was such that he could not tolerate the noise.
39In March 2017, the defendant arranged for Mr Scagliarini to be examined by occupational physician, Dr Michael Baynes. In his report dated 29 March 2017, Dr Baynes noted that Mr Scagliarini complained of ongoing posterior neck pain, with pain into his right clavicle, stiffness in his neck and an altered sensation in his left arm. Dr Baynes also noted that Mr Scagliarini complained of ongoing frontal headaches, and that he was limited to approximately 30 minutes of driving before he would experience increased pain.
40On examination, Dr Baynes noted some restrictions in the flexion, extension and rotation of Mr Scagliarini’s cervical spine. In addition, he noted altered sensation affecting the radial aspect of Mr Scagliarini’s left forearm and left thumb and a reduced grip strength in his left hand.
41Dr Baynes was of the opinion that Mr Scagliarini had suffered an aggravation of a pre-existing asymptomatic condition in his cervical spine. He considered Mr Scagliarini to be fit for modified and alternate duties, provided there was no lifting greater than seven kilograms and no repetitive lifting or forceful pushing or pulling. Dr Baynes also stated that Mr Scagliarini should not work with constrained postures of the neck and should be able to frequently change his postures.
42Dr Baynes was of the opinion that the employment options of secondary school teacher, vocational educator, tutor, administration officer, enrolment officer, customer services assistant and enquiry clerk, were appropriate employment options for Mr Scagliarini, provided the specific restrictions he identified were able to be accommodated in any such employment. Dr Baynes then stated that he considered Mr Scagliarini to be capable of performing such jobs in the next six to nine months.
43In December 2018, the defendant arranged for Mr Scagliarini to be examined by neurosurgeon, Dr Graeme Brazenor. In his report dated 11 December 2018, Dr Brazenor summarised the medical reports and clinical records relating to Mr
Scagliarini before then detailing the history he obtained from him. It was noted that Mr Scagliarini made the following complaints:
· numbness in his left arm and hand, together with discomfort in his left wrist after heavy lifting;
· heaviness and stiffness in his neck which was worse at the end of the day;
· pain into his right clavicle area that was exacerbated by lifting of shopping or gardening.
44Dr Brazenor then obtained a history from Mr Scagliarini in relation to his work at Osborne Primary School. He reported that Mr Scagliarini had found it mentally tiring, and that he had ceased such employment, “mainly in terms of his anxiety”, as Mr Scagliarini did not have the patience for dealing with younger children.
45When this aspect of Dr Brazenor’s report was put to Mr Scagliarini in cross- examination, he said that he had felt tired and in pain, both of which had resulted in him being grumpy with the students.
46On examination, Dr Brazenor noted that Mr Scagliarini’s neck movements were very restricted, with only five degrees of rotation to the left side. Dr Brazenor considered there to be an inconsistency in his formal testing of the motor power in Mr Scagliarini’s left arm.
47Dr Brazenor concluded that the incident in March 2015 had aggravated Mr Scagliarini’s previous cervical disc injury, as a result of which he required surgery. Dr Brazenor then stated that, in the event both levels had been successfully fused in that surgery, Mr Scagliarini’s “ongoing symptoms are inexplicable”. Alternatively, Dr Brazenor accepted that if Mr Scagliarini did not attain a fusion at one or both of the levels operated on in his cervical spine, he would have neck pain and stiffness, and possibly referred symptoms into his
left arm. However, Dr Brazenor was of the opinion that, even if there was a failure to fuse one or both of the operated levels in his neck, there was no reason why Mr Scagliarini could not have returned gradually to full-time teaching, save that he could not perform the physical duties of a physical education director.
Credibility
48The defendant challenged Mr Scagliarini’s credibility, both in respect of the claimed level of restriction in his neck, as well as his recent complaint of suffering daily headaches.
49In relation to the restriction of movement in his neck, the defendant relied upon video surveillance taken of Mr Scagliarini on two weekends in August 2018, while he was attending his son’s football games. The defendant submitted that such footage demonstrated Mr Scagliarini to be moving more freely than he had portrayed in his affidavits, his oral evidence or at his attendance with Dr Brazenor.
50The first clip of surveillance, taken on 19 August 2018, showed Mr Scagliarini at Victoria Park in Collingwood. On two occasions, Mr Scagliarini crossed the road and, on each occasion, while looking for cars in either direction, he appeared to move his neck without restriction.
51When this was put to Mr Scagliarini in cross-examination, he maintained that he had moved his shoulders while turning his neck. I do not consider this answer to fairly depict the manner in which Mr Scagliarini presented in the video. Based on my observation of this footage, I am of the opinion that Mr Scagliarini’s neck was not as restricted as he claimed.
52It was also put to Mr Scagliarini that he had conveyed to several doctors that he seeks to either avoid driving, or to limit himself to 30 minutes of driving. Mr Scagliarini said that his wife usually does the driving, and was of the belief that his wife had been unable to attend the football on this occasion, such that he
was therefore required to drive his son. Mr Scagliarini accepted that the drive from Collingwood to his home was one and a quarter hours. I accept Mr Scagliarini’s explanation that this was a rare occasion, and that, due to his neck pain, this was not a distance he would be able to drive on a daily basis.
53The second clip of surveillance, taken on 25 August 2018, showed Mr Scagliarini attending a football stadium in Frankston to watch his son play football. The surveillance ran from approximately 1.56pm until 4.47pm, during which time, 35 minutes and 15 seconds of footage was attained of Mr Scagliarini. Mr Scagliarini accepted that the period of surveillance shows him watching his son play football while also talking with friends and family.
54For the duration of the time that Mr Scagliarini was seen on film, I did not observe any obvious restriction of movement in his neck. Once again, I do not accept Mr Scagliarini’s claim that he also had to move his shoulders when he needed to move his neck in a certain direction.
55Mr Scagliarini stated that he would rub his neck when it was painful. However, based upon my observation of the video surveillance, there appeared to be only one occasion in which he rubbed his neck.
56When Mr Scagliarini was asked to comment on this video, he stated that he believed the footage showed him to be a “tired weary old man leaning on the fence watching his son play football”. I do not accept this description. My overall impression of Mr Scagliarini, based upon the video surveillance, was that his neck movement was not as restricted as he sought to convey in his affidavits and oral evidence.
57The defendant also challenged Mr Scagliarini’s credibility on the basis that he now claimed to suffer daily headaches which, on occasion, were so bad that they affected his ability to concentrate. Mr Scagliarini only deposed to suffering from these headaches in his fourth affidavit, which was sworn on the morning that the Originating Motion was due to commence. Mr Scagliarini was unable
to provide any adequate explanation as to the reason for which there was no mention of daily headaches in any of his three earlier affidavits.
58In some of the medical records pre-dating his surgery, there was a mention of Mr Scagliarini suffering headaches in May and June 2015. The only reference to Mr Scagliarini suffering such headaches following the surgery was a note by Dr Bayne in March 2017, that Mr Scagliarini had suffered “ongoing frontal headaches”. There was no mention of headaches in Dr Thoppil’s reports, nor in any of the more recent medico-legal reports.
59It was expressly put to Mr Scagliarini that he had made up the presence of daily headaches; however, he denied this proposition. Mr Scagliarini stated that he would have mentioned suffering daily headaches to any of the doctors, had they expressly asked him.
60In circumstances where there is only one recorded complaint of Mr Scagliarini suffering such headaches, in the almost three year period following his neck surgery, I consider it improbable that Mr Scagliarini suffers these headaches with the frequency or intensity he attested to in court. I considered Mr Scagliarini to be an intelligent and articulate witness. I therefore cannot reconcile the absence of any recorded complaint of daily headaches that were, on occasion, so bad they limited his ability to concentrate, to his general practitioner, or to the numerous medico-legal doctors whom he has consulted in this matter, with the evidence Mr Scagliarini gave on the day of the hearing. I therefore have reservations as to this aspect of his evidence.
61Save for these two matters, the defendant did not otherwise challenge Mr Scagliarini in respect of his claimed consequences. In particular, I accept that he was not challenged in respect of his reports of constant neck pain, the impact such pain has had on the use of his left arm, the interference it has with his sleep, and his need to take daily over the counter pain medication.
62I also note that, save for the reservations expressed by Dr Brazenor, each of the other doctors who examined Mr Scagliarini accepted that he suffers genuine ongoing pain and restriction in his neck as a consequence of the work incident in March 2015.
63In such circumstances, notwithstanding my reservations as to the extent of his neck restrictions and the regularity of his headaches, I otherwise accept that Mr Scagliarini suffers numerous consequences as a result of his spinal impairment.
Mr Scagliarini’s claim for loss of earning capacity
64To succeed in his application, Mr Scagliarini bears the onus of satisfying me that, as at the date of hearing, as a consequence of his neck injury, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to suffer a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Mr Scagliarini is capable of earning in suitable employment.
65The definition of suitable employment is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience, and whether or not the work is a reasonable distance from the plaintiff’s place of residence.1
66In undertaking this task, I must compare what Mr Scagliarini is capable of earning in suitable employment with his pre-injury earning capacity. A matter of significance in this case is the nature and extent of Mr Scagliarini’s pre-injury earning capacity.
67In determining pre-injury earning capacity, it is permissible to look at what the worker earned, or was capable of earning, in the three years prior to, or the three years following the injury.
68
In many cases, a worker’s pre-injury earning capacity is determined by looking at the gross income the worker earned from personal exertion in the three years
Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at [25] and [28]
prior to the injury. In this case, the defendant suggested that the financial year ending 30 June 2014, in which Mr Scagliarini earned $93,678 gross, was the income which most fairly reflected his without injury earning capacity.
69However, Mr Scagliarini claimed that, had he not suffered his neck injury, he would have been capable of working as an Assistant Principal. He therefore submitted that his without injury earnings figure should be based upon what he would have earned in such a position, as at three years after the work injury.
70Mr Scagliarini claimed that he had intended to apply for a role as an Assistant Principal when one became available, and that he had undertaken his Masters specifically to assist him in gaining such a promotion. Within a few months of having suffered his injury, the position of Assistant Principal was advertised at the defendant’s school. However, at that time, Mr Scagliarini was not at work and was not aware of the advertised position, and thus did not apply for the role. Mr Scagliarini said that he had all the requisite qualifications and experience, and that, had he known about the role, and had he not been injured at the time, he would have applied.
71The defendant challenged Mr Scagliarini’s claimed intention to obtain such a promotion. It was submitted that his resignation from a full-time teaching position in 2006, to take up casual teaching roles, and to assist in the running of a cafe, was inconsistent with a long-term plan of career advancement. I do not accept this submission. Instead, I accept Mr Scagliarini’s explanation that he desired to make a difference within the education system, and that, after his “epiphany”, he realised he needed to undertake further study, so as to move into a more senior role, in order to achieve this ambition.
72The defendant also challenged Mr Scagliarini in respect of the “Teaching staff intention” surveys, which he completed at the commencement of each of the teaching years from 2012 to 2014. I attach no significance to Mr Scagliarini’s failure to detail his ambition to attain an Assistant Principal role in these forms.
I note that in the 2014 survey, Mr Scagliarini indicated a desire to undertake a certificate IV in Assessment and Training. In cross-examination, Mr Scagliarini explained that he wanted to undertake this course in an attempt to learn about and better understand the VCAL and VET programs, which are relevant in secondary schools seeking to offer alternative pathway programs to their students. I accept that, had Mr Scagliarini simply intended to remain in his position as Head of Sports, there would have been no logical need for him to undertake a course in relation to such studies.
73In The Herald & Weekly Times Ltd v Jessop,2 the Court of Appeal explained that:
“…a worker’s earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker’s ability to earn income through personal exertion depends on the nature and quality of the worker’s capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker’s physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.”3
74I am satisfied that, as at the time he was injured, having completed his Masters in Education, Mr Scagliarini had the capacity and willingness to work as an Assistant Principal. It is possible that he may have attained such a position within the defendant school when it was advertised in June 2015. Had he not been successful in any such application, I accept that Mr Scagliarini would have used his position as a head teacher at the defendant school, to “springboard’ his career to an Assistant Principal position elsewhere. In such circumstances, I am satisfied that the gross income of an Assistant Principal in March 2018 is the figure which most fairly reflects Mr Scagliarini’s without injury earning capacity.
75Mr Scagliarini relied upon a vocational report, which stated that, pursuant to the relevant enterprise bargain agreement, as at March 2018, an Assistant Principal
[2014] VSCA 292
Ibid, at [53]
earned $165,284.00 gross per annum. This equates to a gross weekly figure of
$3,178.53. To succeed in this aspect of his claim, Mr Scagliarini must satisfy me that, as a consequence of his neck impairment, he has suffered a permanent loss of earning capacity, such that he is incapable of earning more than 60 per cent of that figure – that is, $1,907.12 gross per week. Mr Scagliarini must also satisfy me that such a restriction on his earning capacity will be permanent.
76In assessing Mr Scagliarini’s claim for loss of earning capacity, I am obliged to do so realistically, by reference to his physical limitations and by reference to what might or might not amount to suitable employment in the foreseeable future.4 This is a test of physical capacity, not employability, and it involves consideration of what Mr Scagliarini might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvements as might be thought likely or possible after undertaking vocational education.5
77The defendant relied heavily upon Mr Scagliarini having ceased his employment at Osborne Primary School due to psychological reasons. I accept that Mr Scagliarini conveyed these concerns to Dr Hayman and Dr Brazenor, and that such concerns are also referred to in the reports of Dr Thoppil, which make reference to Mr Scagliarini’s anxiety in relation to teaching young students.
78The defendant also emphasised that Mr Scagliarini had applied for numerous jobs, within 30 minutes of his home, and submitted that such applications were indicative of Mr Scagliarini’s belief in his capacity to perform such suitable work.
79The defendant also criticised Mr Scagliarini for not following up with Dr Eaton’s recommendation that he consider establishing a tutoring business. I note that
Harris v DJD Earthmoving Pty Ltd [2015] VSCA 188, at [48]
Ibid, at [49]
Mr Scagliarini did not offer any explanation as to the reason for which he did not pursue this option.
80The matters raised by the defendant in support of its defence of this claim may well be relevant in a damages claim. However, s325 (g) of the Act “is a gateway provision, which does not require an assessment of loss of earning capacity as in a claim for damages”.6
81Dr Thoppil has provided medical certificates stating that Ms Scagliarini does not have the capacity to undertake any work. However, having considered those medical reports as a whole, I am of the opinion that Mr Scagliarini’s psychological problems are the reason for Dr Thoppil considering him to be totally incapacitated.
82Dr Baynes considered there to be a range of jobs which may be suitable for Mr Scagliarini, provided certain physical restrictions were met. Dr Baynes also stated that Mr Scagliarini would be capable of performing such work within six to nine months’ time. However, Dr Baynes did not re-examine Mr Scagliarini, and I am therefore uncertain as to what his opinion in relation to Ms Scagliarini’s capacity for full-time employment would have been.
83Dr Brazenor considered that Mr Scagliarini would be capable of gradually returning to full-time teaching, provided he was not required to perform the physical duties associated with sports teaching. He also observed that Mr Scagliarini’s inability to return to work was “purely psychological”.
84Having considered all of the evidence, I am satisfied that Mr Scagliarini is capable of performing all of the jobs suggested by IPAR – including that of a tutor and vocational educator. I am also satisfied that, from a physical perspective, provided Mr Scagliarini did not have to undertake any sporting
Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35, at [78]
activities, or lift excessive weights, he could also work as a school teacher. I accept that such employment would need to be within 30 minutes of his home.
85However, given my acceptance that Mr Scagliarini suffers daily neck pain, that such pain is aggravated when his neck is in a flexed posture for an extended period, that he requires daily painkilling medication, and that his sleep is interrupted due to neck pain and posture, I am not satisfied that Mr Scagliarini could consistently or reliably perform any of those jobs on a full-time basis. I am of the opinion that Mr Scagliarini only has the capacity to work in suitable employment on a part-time basis.
86All of the jobs proposed by the defendant as “suitable employment”, on a full- time basis, come below the figure of $1,907.12. It obviously follows that Mr Scagliarini’s capacity to perform only reduced hours in such suitable employment, therefore satisfies the requisite 40 per cent reduction in his earning capacity. I am also satisfied that such loss will be permanent.
87Once the threshold of 40 per cent reduction in earning capacity has been met, it is still necessary for me to consider whether the consequences to Mr Scagliarini meet the “very considerable test”.7
88Given my acceptance that Mr Scagliarini’s neck impairment restricts him from undertaking full-time employment, such that he is unable to pursue his ambition to attain the role of Assistant Principal, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as at least very considerable.
89As Mr Scagliarini has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his spinal impairment, it is not necessary for me to consider separately his pain and suffering consequences.8
s325 (2) (c) of the Act
Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170, at [63]
90I shall make the consequent orders.
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