Simpson v RTS Transport Services Pty Ltd
[2015] VCC 214
•6 March 2015 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05690
| BRADLEY SIMPSON | Plaintiff |
| v | |
| RTS TRANSPORT SERVICES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 February 2015 | |
DATE OF JUDGMENT: | 6 March 2015 (Revised) | |
CASE MAY BE CITED AS: | Simpson v RTS Transport Services Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 214 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left hip – pecuniary loss damages, pain and suffering damages conceded
Legislation Cited: Accident Compensation Act 1985
Judgment: Application granted in relation to pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr G Coldwell | Slater & Gordon Ltd |
| For the Defendants | Mr B R McKenzie | IDP Lawyers Pty Ltd |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to commence common law proceedings seeking damages for injuries suffered by him on or about 12 November 2007. The defendants admit that by reason of the injuries suffered by the plaintiff on that date, he has suffered an injury to his left hip, the consequences of which meet the statutory definition of “serious” insofar as it pertains to the plaintiff’s entitlement to commence a proceeding claiming damages for the pain and suffering consequences of his injury.
2 The issue for my determination in this instance is whether or not the plaintiff has established the statutory criteria such that an order should be made that he have leave to commence a proceeding with respect to the pecuniary loss damages associated with his injury.
3 In the course of this application, the plaintiff gave evidence and was cross-examined. Otherwise, the parties rely upon medical evidence tendered by them.
4 The plaintiff has sworn two affidavits, dated 26 June 2013 and 16 January 2015, in which he set out the symptoms and restrictions associated with the injury the subject of this application. Affidavits have also been filed by the plaintiff’s mother and a longstanding friend.
5 It is appropriate that I note at this stage that, notwithstanding the medical opinions expressed by the evidence of Mr Dooley, Dr Duke, Dr Stern and Dr Kaplan, it is the defendants’ position that the only issue which arises as to “disentangling” in this matter is the effect, if any, which the plaintiff’s emotional state, as described in those reports and in his evidence, has upon the plaintiff’s capacity to complete his current studies and to qualify for employment as a community worker.
6 The content of the plaintiff’s affidavit evidence speaks for itself, as does the plaintiff’s viva voce evidence, and no purpose is served in restating that evidence in these reasons, other than where required to give context to my findings and to disclose my path of reasoning in this instance. It is appropriate that I note that no aspect of the description by the plaintiff as to the pain or incapacity associated with his symptoms was challenged in the course of cross-examination, the focus of which was the plaintiff’s capacity for retraining and work. Issues arise however as to the plaintiff’s truthfulness and his reliability.
7 As to the consequences of his injuries, the plaintiff deposed, relevantly:
(i) In his first affidavit sworn 26 June 2013, that:
· He suffered from the presence of constant pain in his left groin area which was always present and aggravated by activities including prolonged sitting or standing, together with pain in lower back and buttock areas which were also exacerbated by activity, including prolonged sitting or standing.
· He had sought retraining, which was unfunded by WorkCover, and undertook Certificates in Information Technology, Business Management and Community Welfare.
· In 2011, he had obtained work as a minibus driver with the Victorian Aboriginal Health Service but discontinued that employment after four months by reason of the fact that his hip symptoms were aggravated by the prolonged sitting while driving and the need to get in and out of the bus.
· In 2013, he commenced work as a cleaner at a hotel in Diamond Creek, working three hours a day for five days a week. He described suffering significant pelvic soreness during that work and said that he believed that working for about 15 hours a week was the limit of his work capacity.
(ii) In his second affidavit dated 16 January 2015, the plaintiff deposed that:
·He suffered from constant left hip pain and left buttock pain, and pins and needles and numbness down his left leg into his toes; the symptoms associated were aggravated by physical activity.
·He said he managed his symptoms by employing Tramadol and Panadol, seeking to minimise his intake of medication by reason of the side effects associated with its use.
·He described between October 2013 and January 2015, being employed at a rose farm as a maintenance worker for 15 hours a week, which employment continued for three months but was abandoned by reason of the physical activities involved in that work aggravating his symptoms.
·Having commenced a Diploma of Community Services at the Kangan TAFE, the course involving an eight-hour day, three days per week. The plaintiff said that he was not always able to attend the course hours due to his pain levels, with the result that he failed to complete the course. The plaintiff said that he ultimately ceased the course in around September 2014.
8 Relevantly, in the course of his evidence, the plaintiff:
(i) Corrected the content of his affidavits which were inaccurate, in that they overstated the qualifications he had obtained through his self-initiated studies;
(ii) Gave evidence contrary to his affidavit that he was still undertaking study to qualify as a welfare worker;
(iii) Described having obtained employment with Crossroads as a youth worker for one day a week. Although he was paid for an eight-hour day, the plaintiff said that his hours of work usually involved him working in the vicinity of five hours a day.
Credit
9 The first matter for my determination is whether the plaintiff presents both as a truthful and reliable witness.
10 The plaintiff’s credit is attacked on behalf of the defendants on two bases; namely:
(i)Firstly, that the plaintiff, in his affidavit sworn 26 June 2013, exaggerated the certificates which he had gained in the course of his study at the Broadmeadows Kangan Batman TAFE which he undertook whilst rehabilitating himself following the stabilisation of the injuries the subject of this claim;
(ii)Secondly, that by reason of the statement made by the plaintiff in his affidavit dated 16 January 2015 in which he described the Diploma of Community Services course he had commenced at the TAFE in the following terms:
“I found I was not always able to attend all the course hours due to my pain levels and as a result I failed to complete the course. Furthermore I have never been academically inclined and I did experience difficulty in learning concepts. [I] ultimately ceased the course in around September 2014.”
11 As to the first point, whilst the inaccuracy in the plaintiff’s first affidavit clearly reflects upon his reliability, I am satisfied that it does not tell against the plaintiff’s honesty as a witness.
12 The misdescription by the plaintiff as to his qualifications (which involved him overstating rather than understating the qualifications) involved a misdescription to the plaintiff’s detriment and to the defendants’ advantage, in that it suggests that the plaintiff was:
· more academically capable and better qualified than was the case; and
· ultimately, that the range of potential employment opportunities available to him were expanded rather than curtailed by the level of retraining which he had achieved.
13 Given that aim of a witness who is deliberately untruthful would be the opposite, I am satisfied that that the misdescription by the plaintiff as to this issue goes at its highest to a point of reliability on this topic.
14 As to the point taken with respect of the inaccuracy in the plaintiff’s second affidavit in which he said his studies had ceased, which statement he contradicted in the course of cross-examination, I am satisfied that this again speaks to the plaintiff’s reliability on the point rather than his truthfulness as a witness.
15 I make this finding on the basis of the way in which the admission which contradicted the relevant passage in the plaintiff’s second affidavit, came to be made in the course of his cross-examination.
16 The fact that the plaintiff remained a student at the TAFE was volunteered by the plaintiff in the course of questioning, the purpose of which was not to assert that the plaintiff remained a student, but rather to explore the issue as to whether the plaintiff could go back to his studies. The way in which the relevant evidence emerged at Transcript 46; namely:
Q:“There’s no reason why you can’t go back and do community service work now, is there?---
A:No, there’s not. I’ve told you that already.
Q:No reason why you can’t go back to your community service studies, is there?---
A:No, because they’re still going, the studies.
Q:The studies are still going?---
A:Yes.
Q:You’re still doing them. Is that right?---
A:Yes, this year, yes.
Q:Where are you attending the studies? Where are those studies being done?---
A:Broadmeadows TAFE.
Q:Broadmeadows TAFE. Did you have to miss a class to come to court today?---
A:No.
Q:When did you start at Broadmeadows TAFE?---
A:Last year.”[1]
[1] Transcript (“T”) 46, L16-28
and further:
Q:“The study that you’re doing at the moment, you started a couple of weeks ago, two weeks ago, I think you said?---
A:Two weeks ago.
Q:You will continue to study for this year. Is that so?---
A:Yes, one day a week.
Q:Just so we’re clear on this, you intend to finish your studies this year. Is that right?---
A:I won’t finish it.
Q:You won’t finish it?---
A:No.”[2]
makes the position to which I have referred clear.
[2] T47, L21-28
17 Each of the findings which I have made is based not only on the reasoning to which I have referred but also my strong impression of the plaintiff in the course of his evidence.
18 It was my impression of the plaintiff that he presented as an unsophisticated and rather naïve person who had made a serious effort to rehabilitate himself by:
· initially attempting physical work of the type he had been engaged in during his working life prior to his injury, all of which had involved aspects of physical labour and in respect of which there is no issue he is now precluded; and
· subsequently, by undertaking a number of courses to qualify him for fields of employment which required tertiary qualifications and involved light physical work.
19 In my opinion, the plaintiff’s persistence in:
· Firstly, seeking retraining; and
· Secondly, undertaking the work at Crossroads, about which he gave evidence
are clearly matters which speak significantly to the plaintiff’s credit.
20 Whilst the defendants take issue with the plaintiff’s statement that he has difficulty with academic studies, when account is taken of:
(i) The fact that the plaintiff left school towards the end of Year 9 and has worked in semi-skilled physical-type activities since leaving school;
(ii) The evidence of the plaintiff’s mother, which is unchallenged, that academic activities were never the plaintiff’s strong point, rather that he always enjoyed outdoor and physical work;
(iii) The plaintiff’s evidence as to the difficulties which he encountered in tolerating his studies by reason of his pain, which evidence was unchallenged
I accept the plaintiff’s evidence that he had difficulty in completing the various aspects of his current TAFE course and that it is unlikely that he will do so by reason predominately of his aptitude to study and the symptoms caused by the subject injury.
21 Further, I am satisfied that the physical difficulties the plaintiff tolerated in undertaking his courses, which are set out in his affidavits and evidence, and were not the subject of challenge, further speak to the plaintiff’s credit.
22 For all these reasons, I am satisfied that the plaintiff presents as someone who is doing his best to minimise the consequences which his injuries have had upon his ability to be gainfully employed and that his unreliability upon the specific issues to which I have referred do not undermine his evidence in general as to his symptoms, about which no issue was taken and which I accept.
The medical evidence as to the Plaintiff’s capacity for employment
23 The parties have tendered a number of medical reports relevant to the plaintiff’s capacity for employment.
24 The defendants have tendered a plethora of reports from medico‑legal experts which were generated during the period between 20 December 2007 and 29 May 2014. There can be no issue that the plaintiff’s injuries were not stabilised until he underwent his fourth surgical procedure on 23 August 2011. I am satisfied, having considered the medical evidence tendered by the defendants which involved examinations of the plaintiff prior to that date, that it has no relevance to the issue which I have to determine; namely, the plaintiff’s current fitness for work.
25 Mr Peter Scott, an orthopaedic surgeon, examined the plaintiff on behalf of the defendants on 23 February 2013. In the course of his report, Mr Scott makes comments as to the plaintiff’s level of impairment and makes no comment upon the range of work which the plaintiff is fit to undertake.
26 Mr Michael Dooley, an orthopaedic surgeon, examined the plaintiff on behalf of the defendants on 29 May 2014. In the course of his report, Mr Dooley opined:
· That the plaintiff had suffered an aggravation of an underlying degenerative condition of his left hip which was responsible for the four surgical procedures which the plaintiff had undergone; namely, an arthroscopy on 3 June 2008; a further arthroscopy on 3 March 2009; a total hip replacement on 11 August 2009, and a further arthroscopy involving a release undertaken of the psoas tendon on 23 August 2011.
· That the plaintiff was fit to undertake light physical work and clerical duties; that his return to suitable employment would need to be undertaken on a gradual basis but that ultimately, the plaintiff had the physical capacity to return to full-time employment.
27 In a report dated 18 November 2014, the plaintiff’s general practitioner, Dr Arora, opined that the plaintiff:
· Was restricted in his ability to undertake activities involving frequent bending, stooping, constant and heavy lifting, frequent twisting, persistent pushing or pulling, kneeling, squatting or crouching, prolonged walking, standing and constant sitting, and that these restrictions would continue in the long term.
· Had undertaken:
“… some community work on a part time basis. He managed to do that. He should look into that kind of work for long time basis (sic). He may be able to increase working hours in that kind of job with passage of time. He needs to look for jobs with minimal labouring commitment. He informs me that he lacks writing skills and he will need some education towards that.”
28 The plaintiff’s treating surgeon, Mr James Stoney, in a comprehensive report dated 31 May 2012, sets out the history of the four surgical procedures which the plaintiff has undergone.
29 As at May 2012, Mr Stoney considered the plaintiff was still suffering from symptoms in his left hip and that his condition was stabilised for the foreseeable future, with the exception that he would require surgery to replace his artificial hip within the next twenty to twenty-five years.
30 As to the plaintiff’s industrial capacity, Mr Stoney opined:
“Bradley does have the capacity to perform suitable employment. He has retrained in computers and I think it would be reasonable for him to pursue this as a career.
I would anticipate he would have some difficulty sitting for extended periods of time and may need to get up and walk around every hour or so to relieve pressure in his hip.
I am hoping with time he will develop a greater capacity for extended periods.”
31 Mr Stephen Doig, an orthopaedic surgeon, examined the plaintiff in November 2014.
32 Mr Doig opined that:
· As a consequence of the plaintiff’s left hip injury, he would be significantly restricted in employment involving bending, lifting, twisting, pushing, pulling, carrying, repetitive activities, kneeling, squatting or crouching or going up or down inclines and using steps and ladders, and that that incapacity would continue for the foreseeable future.
· The plaintiff had no capacity to perform his pre-injury duties but he had a capacity to perform suitable employment. He noted that the plaintiff had undertaken a number of retraining courses in order to “try and get himself back into the workforce and I think that it is appropriate and proper that he does have the capacity to do that”.
· That activities such as those involved in the duties of a despatch clerk or an internal sales clerk were probably within the plaintiff’s physical capacities.
33 It is appropriate to note that neither Mr Doig nor Mr Stoney opined that the plaintiff’s capacity for work involved a capacity only to work restricted hours. Whilst Mr Doig and Mr Stoney were silent on the issue, Mr Dooley opined to the contrary with respect to his expectation as to the plaintiff’s ultimate capacity for employment.
34 While Dr Arora recognised the fact that the plaintiff had undertaken part-time work in the course of his community work, he left the plaintiff’s capacity for full or part-time work as an open issue, commenting that the plaintiff may be able to increase his working hours in community-type activities with the passage of time.
35 Dr Helen Sutcliffe reported on behalf of the plaintiff on 4 December 2014.
36 Dr Sutcliffe opined that the plaintiff had a capacity to perform occupations for which he was appropriately qualified by reason of the retraining he had undertaken at the Kangan TAFE, commenting:
“I believe he has the capacity to undertake the varied tasks of community welfare work, particularly with youth in accompanying and managing youth for limited periods of five to six hours per day, three days a week.”
37 When account is taken of the plaintiff’s:
(i) symptoms, which were unchallenged by the defendants in the course of a competent and searching cross-examination;
(ii) work history and history of scholastic inclination and success as set out in the evidence
I am satisfied, notwithstanding the various opinions expressed by the authors of the Co Work reports dated 30 January 2013 and 20 January 2015 which have been tendered on behalf of the defendants, that the plaintiff is precluded from the majority of the employment activities identified by the authors of those reports, with the exception of the activities identified as being appropriate for the plaintiff in the report of Mr Doig which are involved in the occupation of a despatch clerk,[3] together with the activities undertaken by the plaintiff in the course of his community work to date. As to the latter activities:
·Dr Sutcliffe opined that the plaintiff had a capacity to undertake those activities on a restricted basis;
·The plaintiff agreed that he possessed the capacity to undertake those activities on a restricted basis.
[3]I base this finding upon the inherent consistency between the plaintiff’s described symptoms and Mr Doig’s analysis of the work activities the plaintiff would be fit to undertake. I exclude the occupation of despatch clerk, given the bookkeeping involved. This exclusion makes little difference to the final analysis as to the plaintiff’s retained earnings capacity which I am satisfied, on the basis of the reasons to follow, should be calculated on the basis of a gross pay rate of $28.51 per hour.
38 It follows that I am satisfied that the plaintiff retains a capacity to perform the following work which, if undertaken on a full-time basis, would generate the following levels of weekly income:
· Internal sales clerk - $1,052 gross per week
· Youth worker - $1,168 gross per week
39 At the present time, there is no issue that the plaintiff is qualified to be employed as a youth worker, this being the work he undertook with the Crossroads organisation.
40 It was put by the defendants that any influence which the plaintiff’s emotional state is exerting upon the plaintiff’s capacity to study needed to be isolated in my analysis of the issue as to whether the plaintiff is likely to have the capacity to pass his current course.
41 The evidence by the plaintiff as to the effect which his pain has on his capacity to attend his lectures and when combined with the evidence both by the plaintiff and his mother as to the plaintiff’s capacity as a student, satisfies me that, independently of any influence of his emotional state, the plaintiff is unlikely to succeed in gaining the qualifications necessary for him to be employed other that in the capacity of a youth worker. Accordingly, I am not satisfied that the employment in fields for which the plaintiff requires academic qualifications additional to those he has already obtained, are activities which should be considered as being within the range of potential fields of employment which the plaintiff is or is likely to be able to undertake.
42 It was put on behalf of the plaintiff that Dr Sutcliffe’s qualifications are such as to put her in an authoritative position to opine on the issue as to whether the plaintiff is fit for full-time employment.
43 I accept the position that Dr Sutcliffe, as an occupational physician, has unique expertise in identifying the type of work which the plaintiff is fit to undertake and his capacity for that work. That having been said, I am satisfied that appropriate weight should also be given to the evidence of the orthopaedic surgeons on that topic, which in turn must be considered in the light of my findings as to the plaintiff’s symptoms and physical capacity.
44 In the course of his cross-examination, the plaintiff gave the following evidence:
Q:“Putting the qualifications to one side or just going with that, it’s the case, isn’t it, you could do one day a week with an organisation like Crossroads, couldn’t you?---
A:Yes.
Q:You could do another day a week with another organisation doing the same sort of work, couldn’t you?---
A:Yes, but I seem to like to work with Indigenous, Pacific [people] and I work with Aboriginal people because that’s where I want to give something back to them.
Q:I understand that. You’ve got a preference to do work with indigenous communities. Is that fair to say?---
A:Yes.
Q:But you’re capable of doing work with non-indigenous people, aren’t you?---
A:Yes.
Q:What I’m suggesting to you is that if they’re only offering you one day a week with one organisation there’s no reason you couldn’t do another day a week with another organisation doing the same sort of work is there?---
A:It’s a possibility, yes.
Q:That’s two days. What about three days a week? There’s no problem with that, is there?---
A:With my shooting pains and with walking and my back I couldn’t cope for any more than two days doing on my feet or walking around.
Q:Do you say two days together or two days ---?---
A:No, they’d have to be separated because I need a day of coping and relaxing and making sure I get back to movements again, free movements.
Q:How about Monday, Wednesday, Friday. Allowing for your day’s recuperation. You could do that, couldn’t you?---
A:Yes, you could. Yes. Whether my pain is going to allow me to do that is another story.
Q:You haven’t put it to the test, have you?---
A:I’ve worked – tried four days a week and I couldn’t cope.
Q:Which job was that?---
A:That was the Victorian Health Service.
Q:That was work that involved helping elderly people, wasn’t it?---
A:Yes.
Q:I take it it had a component of lifting and bending and twisting associated with helping them in and out of a vehicle. Is that right?‑‑‑
A:Very rarely had to help them in and out. They were pretty mobile most of them because that was, with my disability, I wasn’t allowed to do that with them by man-handle them, and, yes, they used to hop in the pools themselves and everything so there was no heavy lifting with them. It was getting in and out of the van to stop me from doing that.”[4]
[4]T43, L30 – T45, L10. This evidence was typical of the concessions made by the plaintiff to his potential detriment in the course of the proceeding which satisfies me as to his general honesty as a witness upon the topic of his symptoms and capacity for activity.
45 The evidence needs to be considered in the context of the evidence given by the plaintiff in the course of his cross-examination at T36-T37 and T87-T88 as to the effect which the five hours of work he undertook with Crossroads had upon him and his belief that he could tolerate only two days of that type of activity.
46 I accept the defendants’ position:
· That the plaintiff’s concession that his capacity to work more hours than those involved in his work with Crossroads, which involved effectively five hours per week, remains untested by reason of the lack of the opportunity which the plaintiff has had to pursue further employment opportunities; and
· That the general tenor of both the medical evidence and the plaintiff’s own evidence is to the effect that the plaintiff has a greater capacity for work than that which was involved in his work with Crossroads.
47 The evidence by Dr Sutcliffe however that the plaintiff may be capable of working 18 hours per week involves the plaintiff extending his demonstrated capacity by in excess of threefold.
48 This increase in activity needs to be considered in light of the plaintiff’s evidence as to the duties he undertook with Crossroads, which were light and largely self-paced, and his evidence as to the effect which those duties had upon him at the end of the working day, which I accept.
49 Taking account of all of the evidence in this instance, including the unchallenged evidence by the plaintiff as to his symptoms and the effect of both his work with Crossroads and his study upon those symptoms, I prefer the evidence of Dr Sutcliffe as to the hours which it is likely the plaintiff will develop a capacity for suitable employment. Accordingly, I am satisfied that it is appropriate to fix the plaintiff’s long-term capacity for suitable employment as involving part-time employment of 18 hours per week.
50 Given that were the plaintiff to be employed as a youth worker for 18 hours per week structured such that he had a rest day in between each working day his earnings would not exceed the statutory threshold in this instance,[5] I am satisfied that the plaintiff has established his entitlement to the leave which is sought in this proceeding.
[5] See the calculation in paragraph 15 of the closing submissions on behalf of the plaintiff, which I accept.
51 I will hear the parties as to the precise order which should be made and as to costs.
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