Schofield v Country West Gourmet Meat and Chicken Pty Ltd

[2018] VCC 614

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-17-03984

JOVANNA SCHOFIELD	Plaintiff
v
COUNTRY WEST GOURMET MEAT & CHICKEN PTY LTD	Defendant

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JUDGE:	DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	27 & 28 April 2018
DATE OF JUDGMENT:	4 May 2018
CASE MAY BE CITED AS:	Schofield v Country West Gourmet Meat & Chicken Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VCC 614

REASONS FOR JUDGMENT
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Subject:  Accident Compensation
Catchwords:   Serious injury; knee injury; capacity; retraining
Legislation Cited:                Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:  Doolan v Rayner’s Sawmills Pty Ltd & Anor [2008] VSCA 219;
  Aluthgamage v Select Care Personnel Pty Ltd [2012] VSCA 111;
  Richter v Driscoll & Ors [2016] VSCA 142
Judgment:                

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. O’Dwyer QC with Mr R.H. Stanley	Patrick Robinson & Co
For the Defendant	Mr B. McKenzie	Russell Kennedy

HIS HONOUR:

Introduction

1       Jovanna Schofield is 57 years of age.  She commenced employment with the defendant in December 2010 working casually in customer service.  She would generally work 15 hours per week.

2       On 3 October 2015 she suffered an injury to her right knee when she was stepping down from a small crate, which she habitually used when serving customers.  The defendant does not dispute the circumstances of Ms Schofield’s injury. Indeed there was little medical dispute about the nature and extent of her injury.

3 Ms Schofield seeks leave to claim damages in respect of both pecuniary loss and pain and suffering on the basis that she has suffered a serious injury as defined in section 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). She relies upon paragraph (a) of the definition of serious injury set out in section 325 of the Act. The body function said to be relatively lost or impaired is the right leg.

4       The defendant did not concede that the consequences of her injury entitled Ms Schofield to leave in respect of pain and suffering, but the real focus of the case before me centred on the plaintiff’s current and future capacity for suitable employment.

5       Ms Schofield was the only witness required for cross-examination, and the matter otherwise proceeded on evidence contained in various documents, together with a surveillance DVD taken in June 2017. 

6       The plaintiff’s credit, and more particularly her reliability, was challenged in cross‑examination largely on the basis of the surveillance material.

7       A further matter, adding some complexity to the present application, concerned the plaintiff’s relocation in 2017 from suburban Melbourne to Mulwala on the Victoria/New South Wales border.

The evidence

8       Ms Schofield swore two affidavits in support of her application dated 26 April 2017 and 26 April 2018.[1]

[1]Exhibit A, p7-12D

9       In the plaintiff’s first affidavit I noted in particular the following matters:

·    She had left school during Year 10 and had no other formal education. 

·    She worked for about eight years at Coles supermarkets in Sunshine as a cashier and sales assistant, and for about 20 years remained at home looking after her children.

·    In approximately 2005 she worked at Poultry Land at Highpoint shopping centre as a cashier and in customer service, and then a further couple of years as a packer in a clothing factory.

·    As a result of the injury with the employer in October 2015 she suffered a ruptured anterior cruciate ligament and medial meniscus tear in the right knee, together with a fracture of the lateral tibial plateau.  She deposed to suffering consequential left knee problems, together with stress, anxiety and depression.

·    She saw her general practitioner on 14 October 2015 and was referred for an MRI scan, which was performed the following day.  She was given medication and referred to Mr Camdon Fary, orthopaedic surgeon. 

·    On 5 November 2015 she saw Mr Fary who recommended surgery.  On 10 November 2015 Mr Fary performed a right knee arthroscopy, partial menisectomy and chondroplasty.

·    In December 2015 her general practitioner referred her for physiotherapy.  She first saw the physiotherapist, Dr Teo, on 16 December 2015.

·    She commenced a gym swimming program in about April 2016 and had a further x-ray performed in late April 2016. 

·    On 25 May 2016 she was reviewed by Mr Fary who told her that she had moderate to advanced cartilage damage and ongoing instability and would eventually require a total knee replacement.

·    In August 2016, due to weight gain, she was referred to a dietician by her general practitioner, and also an exercise physiologist who she was continuing to see.

·    She had not returned to work since the incident and deposed to pre‑injury average weekly earnings of about $375.

10      In Ms Schofield’s most recent affidavit she deposed to the following matters which I regarded as significant.

·    Her right knee was getting worse:

“… continues to ache all the time.  I am never free of pain. … This pain is slowly increasing over time.  I also experience a constant numbness over the outer side of my right leg from my thigh to my calf.”[2]

[2]Exhibit A, p12A[3]

·    She described various activities causing a worsening of pain stating that she could only obtain relief by elevating her leg in a still position.

·    She described having:

“… terrible trouble sleeping both because of panic attacks and pain.  Sleeping on my preferred right side puts too much pressure on my knee and I now sleep uncomfortably on my front.  I am often woken by pain when I roll over or if my leg gets caught in the bed clothes.  I can’t remember the last time I had a good night’s sleep.”[3]

[3]Exhibit A, 12B[5]

·    Ms Schofield attended an eight week beginner course in computers at a community centre in Braybrook.  She stated the course ran from April to June 2017 and involved a few hours one day per week:

“I completed the course and started the second term but stopped after a couple of weeks.  I found the lessons hard going as computers were and remain foreign to me and I have never been a good student.  I had great difficulty remembering things I was taught … Although I can read and write in a basic way my education was very limited.  I did not complete year 10 at Braybrook High School leaving soon after my 15th birthday.  I cannot understand or spell bigger words.”[4]

[4]Exhibit A, p12B-12C[6]

·    She deposed to her inability to do administrative jobs involving the use of computers and believed:

“… I would be lost in an office environment as I have never had any such experience.  The only thing nearing clerical work that I have done was when I manned the layby desk at Coles in the late 1970s to early 80s which involved me simply keeping customers’ down payments on filing cards and in a log book – there were no computers.”[5]

[5]Exhibit A, p12C[7]

·    She had the assistance of a vocational consultant with a rehabilitation provider and applied for at least 15 administrative-type positions without getting a single interview.

·    She believed that there was no chance that she would ever get another job.  She had enjoyed working:

“I really enjoyed serving customers at the Defendant’s butcher with a smile and joining in with their cheeky banter.  I miss it.”[6]

[6]Exhibit A, 12C[9]

·    Her husband had suffered an earlier back injury and they decided to sell their house in Braybrook and move to Mulwala.  This had occurred in November 2017.

·    She continues to see doctors in Melbourne and had undergone two sets of plasma injections, the first of which provided some limited relief, but the second apparently made no difference at all.

·    She continues to see a psychologist approximately once a month.

·    She takes Panadol Osteo every day, usually four tablets, but sometimes up to eight.  She also takes one Panadeine Forte most nights before bed:

“I don’t like taking such medication as they seem to make me constipated but I really can’t cope with the pain otherwise.”[7]

·    She continues to suffer restrictions in relation to her home and social life and believed her condition was deteriorating.  She had lost some weight and improved her mobility a little, but deposed to the intensity of her pain increasing.

[7]Exhibit A, 12D[12]

11      When cross-examined I noted the following matters as relevant to the present application:

·    She commenced seeing a psychologist, Mr Axelsson, in January 2018.  She told him she felt frustrated, hopeless and worthless and had a desire to do activities, but was frustrated by her inability because of physical limitations and chronic pain.[8]

[8]Transcript (“T”) 12, Line (“L”) 16 to T 13, L 15

·    She further agreed that she had told the psychologist she suffered from flattened mood, fatigue, irritation, disrupted and broken sleep due to the pain and at times waking up during the night from panic attacks.[9]

[9]T 13, L 20-23

·    She denied having panic attacks at bingo stating that they occurred at night.  She went to bingo when she could in Mulwala.[10]

[10]T 14, L 4-12

·    She agreed that she did not have psychological problems before, including problems with memory and concentration.[11]

[11]T 14, L 23-29

·    She was not taking any medication for her psychiatric condition.  She had spoken to her general practitioner who had sent her to Mr Axelsson.[12]

[12]T 15, L 5-14

·    He husband had a back injury and had not worked since 2002.  He was now on a disability support pension.[13]

[13]T 15, L 22-29

·    She agreed she had moved to Mulwala because she had effectively retired from the workforce:

“… yeah, because I wouldn’t get work.”[14]

[14]T 16, L 8-14

·    She agreed that she was now about three hours’ drive from Melbourne and approximately 50 minutes to larger regional centres.  She would normally drive to Melbourne for appointments with her husband sharing the driving.[15]

[15]T 17, L 5-26

·    Ms Schofield agreed she could drive for about an hour if the car was substantially on cruise control.[16]

[16]T 18, L 31 to T 19, L 13

·    She continued to travel to Melbourne to see her general practitioner.[17]

[17]T 19, L 27 to T 20, L 2

·    She had not made any enquiries for work in Benalla, Wangaratta or Shepparton.  Nor had she made any such enquiries in Mulwala or Yarrawonga, which is the neighbouring town.[18]

[18]T 19, L 14-26

·    Ms Schofield was no longer doing a gymnasium program but she was swimming.[19]

[19]T 20, L 9-10

·    Ms Schofield had started a computer course, finishing term one, before moving to Mulwala.[20]

[20]T 21, L 4-14

·    She disagreed that she had completed the second term stating:

“I only did one course and then I started the second course.”[21]

[21]T 21, L 25-29

·    The course was one day a week, but Ms Schofield wasn’t up to it because of pain in the knee:

“… that and didn’t learn nothing so I didn’t want to do it.”[22]

[22]T 22, L 2-15

·    She was unaware that Dr Benson, her general practitioner, had said she was fit for appropriate work, mainly seated.  She stated:

“Sitting still hurts, I’m still in pain if I sit.”[23]

[23]T 23, L 8-20

·    She disagreed with the contents of the computer course stating that she did not do an introduction to PowerPoint or file management, did not know whether she had done an introduction to Excel and did not know what Microsoft Word was.[24]

[24]T 24, L 6-19

·    She agreed she had learnt to send an email and to change a heading from one colour to another.  She denied she was a fairly frequent user of Facebook.[25]

[25]T 24, L 20-25

·    She agreed she had put up a photograph of her granddaughter on Facebook but stated that an advertisement for a garage sale had been put up by her daughter, as she did not know how to do it.[26]

[26]T 29, L 7-25

·    She did not have a computer at home, but had an iPad and a smart phone.  She did not do any online banking or pay bills on line.  She paid them at the post office.[27]

[27]T 31, L 4-14

·    She agreed with her doctor’s note of 25 November 2016 that a lady from the rehabilitation provider could have been seeing her doctor.  She further agreed that her doctor had said it wouldn’t hurt for her to try to do a computer course.[28]

[28]T 31, L 26 to T 32, L 24

·    To a further entry by her doctor on 9 May 2017 she agreed with his note:

“Feeling a bit stressed, gets anxious, worried about the computer course, feels it’s stupid.”[29]

[29]T 32, L 31 to T 33, L 12

·    She agreed if a further computer course was offered in Mulwala that she would think about it and might try it, but probably would not enjoy it.[30]

[30]T 33, L 20-29

·    She was told after the first computer course that she should do it again, but not at the next level.  She persisted for a further two to three weeks, attending for about two and a half hours one day a week.[31]

[31]T 34, L 24-31

·    She rejected the proposition that she had not pursued any further computer studies as she had moved to Mulwala.  She stated:

“I would have completed it if it was – needed to, I just didn’t think I was learning anything.”[32]

[32]T 36, L 10-16

·    She had last discussed computer studies with her general practitioner, Dr Benson, before Christmas.  He had told her to give it a go and she told him she wasn’t learning anything.[33]

[33]T 37, L 10-16

·    She was not sure if she had told a rehabilitation provider that she had average communication and numeracy skills.  She stated:

“I wouldn’t have told her that when I do have trouble.”

·    She agreed she had probably told that person she didn’t have any computer skills and only knew how to play games on her iPad.[34]

·    She was further cross-examined about her reading ability and rejected the suggestion that she could cope with bigger words stating:

“No, some words I don’t understand when I’m reading a book or a magazine, so.”[35]

[34]T 38, L 12-25

[35]T 39, L 6-10

12      The surveillance video taken on 27 June 2017 was then shown to the plaintiff.  This ran for approximately 17 minutes and was followed by further video taken on 28 June 2017, which ran for a further 10 minutes.

13      Ms Schofield agreed that the DVD footage was of her, but disagreed that there was no obvious problem with her right knee displayed stating:

“I would’ve still been in pain.”[36]

[36]T 41, L 25-30

14      She agreed that it appeared to be cold when the video was taken, and agreed that she was smiling in one portion.  She further agreed that the surveillance recorded on 28 June showed her lifting what appeared to be a five kilogram bag of ice into the boot of her car seemingly without any difficulty.  She maintained that her leg would still have been in pain with many of the activities depicted in the surveillance DVD.[37]

[37]T 42, L 27 to T 44, L 10

15      The plaintiff finally rejected the proposition that her disturbed sleep was partly to do with pain and partly due to panic attacks stating:

“It’s mostly pain, mostly pain.”[38]

[38]T 44, L 10-25

16      The surveillance DVDs were tendered in evidence.[39]

[39]Exhibit 1

17      Ms Schofield was re-examined and gave evidence as follows:

·    She had taken up reading four or five months ago because she was having trouble getting comfortable sleeping at night.[40]

·    When asked about the surveillance recording showing her pushing a trolley at Highpoint she maintained:

“It’s actually a help to hold on to something when I’m walking, it stabilises me.”[41]

[40]T 45, L 28-31

[41]T 46, L 7-13

18      She responded to my question during re-examination stating that she was only 4 foot 11 inches in height. 

19      She was asked further questions concerning the retraining and rehabilitation consultant, commenting that one of the rehabilitation providers who had assisted her to apply for a number of jobs had commented:

“… I probably wouldn’t get a job ‘cause I’m not qualified for anything he’s going for.”[42]

[42]T 48, L 3-21

The medical evidence

20      Mr O’Dwyer QC, who appeared with Mr Stanley on behalf of the plaintiff, tendered into evidence all of the medical evidence contained in the joint court book.[43]

[43]Exhibit A, p17-109

21      There was no real dispute as to the nature of the plaintiff’s right knee injury.  The argument advanced by the parties centred rather on the extent of the plaintiff’s current and future capacity for any suitable employment.

22      The plaintiff underwent surgery performed by Mr Fary on 10 November 2015.[44]  Mr Fary most recently reported to the plaintiff’s solicitors on 19 March 2018 noting his examination of the plaintiff on 10 April 2017 and a request being made for a second plasma injection on 5 December 2017.  He did not directly comment on her capacity for employment but stated:

“Anna has a guarded prognosis in light of her moderate to advanced arthritis and ACL injury.  She will ultimately require total knee replacement.  Her right knee arthritis is undergoing conservative management currently. … She requires ongoing management to delay total knee replacement.”[45]

[44]Exhibit A, p20

[45]Exhibit A, p94-95

23      Ms Schofield’s general practitioner, Dr Benson, who continues to treat her, last reported to the plaintiff’s solicitors on 19 December 2017.[46]  He noted that she had reached a relative plateau in treatment and outcome, and described her as being “very slow to recover.”[47]  He believed the question of prognosis would be better answered by Mr Fary. 

[46]Exhibit A, p84-87

[47]Exhibit A, p87

24      In relation to her employment capacity he noted various restrictions but stated:

“Her current capacity for employment is that she should perform seated office duties with time to stretch every 5 minutes per hour and that she could start at a maximum of 15 hours per week which could slowly be increased to full time hours as part of a phased return to work program.”[48]

[48]Exhibit A, p86

25      Dr Benson further noted:

“I completed a report request from Converge International who are her return to work coordinators.  Ms Schofield should be suitable for a role as a sedentary sales assistant, sedentary customer service clerk, sedentary ticket collector and sedentary filing or registry clerk.  I did not consider her to be suitably employed as a hand picker or process worker because of her disability.”

26      He somewhat qualified this comment by adding a number of restrictions, concluding:

“In reality for practical purposes this means administrative/office work.”[49]

[49]Exhibit A, p86

27      The plaintiff relied also upon a medico-legal opinion of Mr John O’Brien, orthopaedic surgeon, whose report dated 31 January 2018 was also tendered into evidence.[50]  Mr O’Brien did not regard the plaintiff as  having any likelihood of returning to gainful employment stating:

“This patient now is significantly disabled in relation to her weight bearing function.  Indeed physically this patient would not be capable of a return to her pre-injury employment which required her to be constantly on her feet.  In fact the patient would now be quite incapable of undertaking any form of employment which required any prolonged standing or walking.  Indeed even sitting for a period of time with the leg flexed has become a significant issue and I believe would exclude employment of a sedentary nature.  I would therefore conclude that this patient is now totally incapacitated and this is a permanent situation.”[51]

[50]Exhibit A, p88-92

[51]Exhibit A, p91-92

28      A further orthopaedic opinion from Dr Arshad Barmare dated 12 April 2018 was also relied upon by the plaintiff.[52]  Dr Barmare did not directly comment on future employment capacity other than to state:

“… she cannot do any work or even the same work that she was doing before.”[53]

[52]Exhibit A, p96-102

[53]Exhibit A, p99

29      He was guarded about prognosis stating:

“… the prognosis is very guarded because she has not shown much improvement with regard to pain over the last two years since her surgery … she has progressive osteoarthritis and this might require further treatment in the future, mainly total knee replacement, which is more dictated by pain and functional levels in the future.”[54]

[54]Exhibit A, p100

30      The defendant’s most recent orthopaedic opinion was from Mr Iain McLean in a report dated 15 November 2017.[55]  He had examined Ms Schofield in Melbourne on 14 November 2017 and stated in relation to any return to work:

“Any work would need to be that of a purely light sedentary work; for which she does not have any past experience or education.”[56]

[55]Exhibit A, p76-83

[56]Exhibit A, p81

31      He suggested a review in a minimum of six to 12 months.  He further commented:

“I do not consider that Miss Jovanna Schofield has a current work capacity; given the above outlined symptoms and problems relative to her right knee, along with her age, education and previous work experience. … the only possibility of employment for the future would be in the role of purely office or seated, sedentary work whereby she could sit for a time and stand for a period.  This theoretically then would be reasonable with regard to performing office or clerical work.

As stated above, she does not have the education; does not have the computer skills; and has never performed any prior office or clerical work in the past, so does not have any such experience.”[57]

[57]Exhibit A, p82

32      Mr McLean was given a list of potential employment opportunities including:

“ Customer service clerk;

   

Order clerk

   

Filing/registry clerk

   

Packer

   

Process worker”

33      To each of these he commented:

“Possible capacity for the administrative clerical type work in the next six to nine months, depending on her ability to master any of the computer activities and have improvement relative to the clinical status of her right knee. 

Both of these factors are certainly unpredictable at this stage and would need further appropriate reviews.”

He finally commented:

“Her right knee injury of October 2015 has initiated a problematic, symptomatic right knee that continues to the present and we will see progression of degenerative changes, the rate of which is difficult to anticipate.”[58]

[58]Exhibit A, p83

34      The earlier orthopaedic opinion of Mr Michael Shannon in his report dated 5 June 2017[59] suggested restrictions on employment, avoiding:

“Prolonged standing, kneeling, squatting, climbing and heavy lifting.”[60]

[59]Exhibit A, p68-75

[60]Exhibit A, p73

35      Mr Shannon had been provided with an occupational rehabilitation service report from Converge International dated 1 February 2017[61] and commented as follows:

“… suitable employment options include sales assistant, ticket collector, packer, process worker, filing and registry clerk which superficially appear to be suitable, but would need to be within the restrictions that I have outlined above.”[62]

[61]Exhibit 5, p115-122

[62]Exhibit A, p73

Rehabilitation material

36      The plaintiff’s solicitors had obtained a report from Ms Marlene Tyquin of Employment Professionals Pty Ltd.  Ms Tyquin’s report was dated 20 April 2018 and was tendered in evidence.[63]  Ms Tyquin met with Ms Schofield on 15 January 2018 and interviewed her over one and a quarter hours.  She additionally reviewed documentation that had been provided by the solicitors.  She concluded her report stating:

“… I believe she would struggle to perform suitable alternative duties which would be economically self-sustaining on a full-time or even part-time basis. … in my opinion as a Recruitment Specialist, it would be very short sighted to suggest Anna would have a realistic capacity to consistently perform any workplace duties in an ongoing and productive manner.  In my opinion, Anna’s ability to perform alternative tasks would also be encumbered by her medication dependence and her poor memory and concentration and fatigue.”[64]

[63]Exhibit A, p123-132

[64]Exhibit A, p131-132

37      The defendant relied upon four reports from Work Able Consulting dated 9 November 2015, 11 November 2015, 23 December 2015 and 20 April 2016.[65]  The defendant additionally relied upon six reports from Converge International concerning vocational assessment and retraining.  These reports were dated 27 October 2016, 1 February 2017, 24 April 2017, 26 June 2017, 31 August 2017 and 31 January 2018.[66]

[65]Exhibit 5, p109A-109N

[66]Exhibit 5, p110-122R

38      The evidence given by the plaintiff in cross-examination confirmed that much of the vocational assistance had been received from Mr Shannon McGuire, who is shown to be the author of the reports from Converge International dated 1 February 2017, 24 April 2017, 26 June 2017 and 31 August 2017. 

39      The final report from Converge International is a retraining outcomes report, which was completed by Ms Anastasia Jouravlev and noted in January 2018 that Ms Schofield had partially completed her introduction to computer course, but:

“Recommended by Converge International to continue her intermediate level for Computer course.”[67]

[67]Exhibit 5, p122P

40      Ms Jouravlev’s predecessor, Mr McGuire, had noted in his April report the following recommendation:

“Ms Schofield has been a cooperative participant in the job seeking process.  We now have the required tools to secure work in the open labour market for Mr[sic] Schofield and have applied for suitable positions.  Ms Schofield has successfully completed an introduction computer course with Duke Street Community Centre, and has been recommended to complete the next level course to expand on her computer skills, which would be highly recommended by Converge considering our experience in job seeking which has indicated that most employers require basic computers, and many jobs that require competent skills could not be applied for.  This is still the major barrier to securing employment.”[68]

[68]Exhibit 5, p122A-L

41      A similar comment was made by Mr McGuire in his report dated 31 August 2017.[69]

[69]Exhibit 5, p122N

Analysis

42      Mr O’Dwyer QC urged me to conclude that Ms Schofield had no capacity for suitable employment and this situation was likely to be permanent.  He submitted that I should find the surveillance material was in fact confirmatory of the extent of her impairment, submitting that the plaintiff was shown limping on a number of occasions and that the activities depicted in the material were not inconsistent with her injury, even though activities such as bending fully from the waist to lift an item from the ground may have had more obvious impact on a person relying upon a low back injury.

43      He further submitted that the decision to relocate to Mulwala was a reasonable one and quite consistent with her frustration following her lack of progress with the computer courses attempted by her in early 2017. 

44      He further submitted that an analysis of the clinical notes from Dr Benson in May 2017 showed a stark contrast between the plaintiff’s stated frustration about her difficulties with the computer course and the more positive comments contained in the material provided by Converge International.[70]

[70]Exhibit 4, p33, 9 May 2017

45      Mr O’Dwyer QC also submitted that regardless of any current psychological or psychiatric treatment, the knee injury alone would preclude Ms Schofield from any suitable employment.  She was therefore entitled to the leave sought.

46      Mr McKenzie, who appeared on behalf of the defendant, submitted that the surveillance DVD material was of significance in terms of the plaintiff’s claim for pain and suffering.  He submitted that the inconsistent appearance of the plaintiff on two days when surveillance was taken, should be contrasted with her statement in her most recent affidavit to the effect that standing for a lengthy period of time would cause throbbing and a missed step, twist or similar activity would result in her pain intensifying “with a fierceness that makes my eyes water.”[71]

[71]Exhibit A, p12B[4] and T 60, L 10-22

47      Quite fairly and accurately Mr McKenzie described the statutory threshold for pain and suffering as a high one.

48      In relation to Ms Schofield’s claim for pecuniary loss Mr McKenzie submitted that this case could not be compared with cases where a worker earning limited income prior to an injury should be assessed as having a greater earning capacity than that disclosed in tax returns. 

49      I accept Mr McKenzie’s submissions that the tax returns did show descending income over a period of time and were consistent with the plaintiff only working limited part-time hours for some years prior to sustaining her injury.

50      Mr McKenzie submitted that an analysis of the pre-injury earnings showed a figure representing $315 gross per week so that 60 per cent of that amount would be $189.05.  In essence any retained post-injury capacity would disentitle the plaintiff to a grant of leave.

51      Mr McKenzie accepted my stated view that in reality the plaintiff could only succeed if she could prove more like than not that there was no suitable employment available for her on a permanent basis.[72]

[72]T 63, L 14-21

52      Mr McKenzie referred me to authorities of Doolan v Rayner’s Sawmills Pty Ltd & Anor[73] as authority for the proposition that the plaintiff bears the onus of proving any inability to be retrained or rehabilitated or to undertake any suitable employment.  I accept this as binding upon me and a correct statement of the approach that needs to be taken.

[73][2008] VSCA 219

53      I was also referred to Aluthgamage v Select Care Personnel Pty Ltd[74] where the Court of Appeal considered matters set out in the definition of suitable employment.[75]  In that case the court considered that the appellant, who was then 69 years of age, had satisfied the statutory threshold even though a medical opinion accepted that she had a capacity for light administrative work.  The court in Aluthgamage specifically made reference to the fact that the worker in that case did not have computer skills and:

“… had no practical capacity for suitable employment after her attempts to return to nursing.  Her age effectively precluded successful retraining.”[76]

[74][2012] VSCA 111

[75]Section 5(1) of the Accident Compensation Act 1985 & section 3 of the Workplace Injury Rehabilitation & Compensation Act 2013

[76]Aluthgamage v Select Care Personnel Pty Ltd at [47]

54      I was also referred to the detailed analysis of the concept of suitable employment made by the Court of Appeal in Richter v Driscoll & Ors.[77] 

[77][2016] VSCA 142 at [72] to [97]

55      Mr McKenzie placed emphasis on the opinion of the treating general practitioner, Dr Benson, who appeared to have accepted the recommendations of the rehabilitation options set out in the Converge International report.  This medical opinion was supported by the earlier opinion given by Mr Shannon.

56      Mr McKenzie did not press any argument suggesting the suitability of Ms Schofield for employment doing process work or packing, notwithstanding that those positions had been suggested as potentially suitable by the rehabilitation provider.  He did submit that the positions of both sales assistant or filing registry clerk would be suitable and referred me to Dr Benson’s acceptance of these suggestions as suitable employment.

57      There is in reality little argument about the nature and extent of the plaintiff’s right knee injury and the obvious limitations it presents for her, both in terms of any return to work and her activities of daily living. 

58      I found the plaintiff to be a truthful and reliable witness and I did not believe the surveillance material relied upon by the defendant undermined my finding as to her credibility or reliability.  It is true that the surveillance material disclosed a variability of the apparent limp displayed by Ms Schofield on various occasions over a two day period.  It is also true that she appeared on several occasions to be conversing with persons in a manner that did not indicate she was in great pain at that time.

59      I do accept additionally that there appears to be no criticism of the plaintiff’s motivation in either the medical opinions tendered in this case or from the material set out in the voluminous vocational and rehabilitation material relied upon by the defendant.

60      I conclude that the plaintiff did become frustrated with the attempts to provide her with sufficient computer skills to enhance her employability.  This is obvious from the clinical notes made by Dr Benson in May 2017. 

61      I am able to conclude that part of her reason for relocating from the western suburbs of Melbourne to Mulwala in the latter part of 2017 was related to her acceptance that there was effectively no prospect that she would ever return to employment.

62      Although her belief in employability is not the test I must apply, it is consistent with much of the medical opinion in this case, particularly the comments made by Mr McLean in November 2017 and Mr O’Brien in January 2018.

63      Ms Schofield is relatively advanced in age and has not worked since sustaining her injury in 2014.  She has very limited education and my own assessment of her, particularly during cross-examination before me, was that she would have very limited skills to offer other than in a very simple customer service role.  Plainly her knee injury renders her unsuitable for that type of employment. 

64      She has effectively no experience in office work, and I accept her evidence, supplemented to some extent by the report of Mr McGuire from Converge International, that she did require further computer skills in order to have any real prospect of employability in an office environment.  Indeed, the plaintiff’s own evidence of effectively repeating the first short computer course without any real benefit confirms my view that she is a woman who would have no real aptitude for any office work position in the open labour market.

65      Mr O’Dwyer QC effectively conceded that leave could only be granted in respect of pecuniary loss if a finding were made that the plaintiff had no current work capacity indefinitely into the future.

66      I accept that there are individual opinions from various medical practitioners, and indeed from some rehabilitation providers, that might suggest there is some light at the end of the tunnel for Ms Schofield in terms of some capacity for future employment. 

67      When I synthesise the whole of the material, including the plaintiff’s own evidence and the manner in which she appeared before me, I am unable to share any such optimism.  This is a case where I am affirmatively satisfied that Ms Schofield has no current work capacity for suitable employment and this situation is likely to continue indefinitely.

68      I also find that the recent attendances by Ms Schofield on a psychologist do not in any way less the physical restrictions which lead me to conclude that she has no current work capacity.

Conclusion

69      I am satisfied that the plaintiff should be granted leave to claim damages in respect of pecuniary loss.  It is unnecessary to separately consider any application in respect of pain and suffering.

70      I propose to grant the order sought.  I will hear the parties in relation to the question of costs.

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