Smith v Victorian Work Cover Authority
[2019] VCC 808
•13 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-03774
| JEFFREY G SMITH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 May 2019 | |
DATE OF JUDGMENT: | 13 June 2019 | |
CASE MAY BE CITED AS: | Smith v Victorian Work Cover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 808 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment of right knee – loss of earning capacity – suitable employment
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Giankos v SPC Ardmona Operations Limited (2011) 34 VR 120; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Weldemichael v ID Sales and Repairs Pty Ltd [2019] VSCA 68
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity and pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn |
| For the Defendant | Ms R Kaye | Minter Ellison |
HER HONOUR:
1 In July 2014, the plaintiff, then aged forty-eight, commenced working with Kent Relocation Group Pty Ltd (“the employer”) as a furniture removalist truck driver. His role involved collecting, storing and unloading trucks with a variety of household and office goods.
2 On 11 August 2015, the plaintiff was injured at work. He injured his right knee when an unsecured chest of drawers fell off the load on the removal truck (“the incident”). He twisted his knee to stop the chest of drawers falling, but was struck with it on his right knee. The plaintiff suffered pain and a physical injury to his right knee as a consequence of the incident.
3 The plaintiff attended a general practitioner and went back to work on modified duties within about a fortnight. The employer’s doctor referred the plaintiff for an MRI scan and to an orthopaedic surgeon, Mr Nizam. The plaintiff underwent an arthroscopy on his knee on 26 October 2015.
4 The plaintiff returned to work on modified duties in mid November 2015 and continued to have physiotherapy treatment. The plaintiff’s knee condition did not improve.
5 On 9 March 2016, the plaintiff underwent a further MRI scan, and surgery, with a total right knee replacement on 8 August 2016. He continued physiotherapy with David Coulson, physiotherapist, after this surgery.
6 The plaintiff attempted to return to work on 14 November 2016 but only lasted the day. On 23 November 2016, he returned to work, on modified duties. On 8 December 2016, he resumed driving duties but was not involved in loading or unloading furniture. In January 2017, his physiotherapist advised him to discontinue driving, and he then worked on modified duties. He continued with ongoing physiotherapy and gym/swim programs.
7 On 21 November 2017, the plaintiff’s full-time job on modified duties was terminated. The plaintiff has done limited work since that time.
The application
8 This is a serious injury application brought by the plaintiff for injury suffered by him in the course of his employment with the employer on 11 August 2015. Leave is sought for damages in relation to pain and suffering and loss of earning capacity.
9 In order for the plaintiff to be entitled to claim damages, his injury must satisfy the definition of “serious injury” contained in s.325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of body function.”
10 The body function relied upon is the right knee.
11 In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of the hearing and permanently thereafter. The Act then recites the formula by which loss of earning capacity is to be measured and requires questions of rehabilitation and retraining to be considered.[1]
[1]Section 325 (2)(e), (2)(f) and (2)(g) of the Act
12 The plaintiff relied upon two affidavits, affirmed by him on 27 March 2018 and 24 April 2019. I have not summarised the plaintiff’s affidavits or the plaintiff’s evidence; however, I will refer to his relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered. I have read all the tendered material.
13 I was informed that the defendant conceded that the plaintiff had suffered a permanent serious impairment or loss of body function for the purposes of his claim for pain and suffering damages. Accordingly, I am only required to consider his loss of earning capacity.
The issues
14 The following issues were in dispute between the parties:
(i) the calculation or assessment of the plaintiff’s “without injury” earnings;
(ii) whether there is suitable employment for the plaintiff;
(iii) calculation of the plaintiff’s “with injury” earning capacity in respect of suitable employment.
15 The defendant submitted that the plaintiff has retained a capacity for suitable work and relied upon four of the jobs that had been identified in the 130-week Vocational Assessment Report of 26 April 2018 (“the IPAR report”) and the CoWork Vocational Assessment Reports dated 27 March and 1 May 2019. The jobs identified as suitable employment were:
· Mobile Road Safety Speed Camera Operator
· Truck/Fleet Allocator
· Information Officer (transport)
· Warehousing/Despatch supervisor.
16 Counsel for the defendant submitted that I should accept the medical evidence that these jobs are suitable employment for the plaintiff. Further, that on the figures provided by the defendant,[2] the plaintiff would not suffer a greater than 40 per cent loss of earning capacity in each of the roles.[3]
[2]Document “Defendant’s Calculation – Loss of Earning Capacity” – Transcript (“T”) 13-14
[3]Document “ Statement re Loss of Earning Capacity” - T9 and T78-84
17 Counsel for the plaintiff disputed the plaintiff’s physical capacity in respect of the first job, and his suitability in respect of each of the four jobs. Further, it was submitted, that if I apply the award rates for the last three identified roles, the plaintiff would suffer a greater than 40 per cent pecuniary loss.
“Without injury” earnings
18 Although this was an issue in dispute between the parties, the figures or calculations were not that far apart. The plaintiff submitted the figure $78,796.00 per annum (60 per cent $42,277.00 per annum) whilst the defendant, relying on the comparable affidavit,[4] submitted the more appropriate figure was $75,069.00 per annum (60 per cent $45,041.40 per annum).[5]
[4]Defendant’s Court Book (“DCB”) 197-198
[5]T48
19 For the reasons which follow, it is not necessary for me to determine which figure most fairly reflects the plaintiff’s “without injury” earning capacity. On either figure, I am satisfied that the plaintiff suffers the requisite 40 per cent loss.
The Plaintiff’s evidence
20 The plaintiff completed Year 10 at school. His work history has been limited to being a truck driver/furniture removalist for the last thirty years. He has only ever performed physical or manual labour.
21 The plaintiff deposed that he was used to working very hard and enjoyed the long hours of working and experiencing the satisfaction of a job well done.
22 He deposed in respect of prospective work duties, that he is unable to stand for long periods of time, sit for long periods of time, bend over, and has difficulty negotiating stairs, lifting heavy weights, kneeling or squatting.[6]
[6]Plaintiff’s Court Book (“PCB”) 6, paragraph [23]; PCB 14, paragraphs [22]-[40]
23 The plaintiff has completed a traffic management course and obtained a white card – he was assisted in obtaining this by IPAR; however, given his restrictions regarding standing for long periods of time and lifting duties, he did not think that he would be able to work as a traffic controller. In his second affidavit, the plaintiff deposed that he had obtained some driving work through a friend in October 2018. This work involved him driving to his friend’s house and delivering skip bins on a trailer for a business called Trailer Trash. He did this work for about five weeks, then his right knee gradually became more painful and swollen. The work was not well renumerated so he did not continue with it.
24 In respect of his attempts to find other work, he had spoken to friends and/or applied for jobs as a driver, labourer, concreter, storeman and traffic controller. He deposed that driving, whether it be a truck, tram, train or forklift, involves prolonged sitting, which causes his knee to stiffen, and it becomes painful. The pain affects his ability to concentrate. Climbing in or out of a truck cabin, or on and off a forklift, would also significantly aggravate his symptoms. Jobs involving lifting, bending, carrying, climbing, kneeling, squatting or prolonged walking or standing would also be difficult for him. He concluded in his affidavit:
“I am desperate but perhaps not realistic in relation to the jobs for which I have applied.”[7]
[7]PCB 15A
25 The plaintiff was cross-examined regarding:
· the nature of the tasks that he undertook when on modified duties after the incident;
· the jobs that he has applied for since he ceased work with the employer, involving only manual skills or driving;
· his capacity to learn new skills;
· his view regarding his capacity to undertake each of the roles the defendant submitted were suitable employment.
Credit of the Plaintiff
26 The plaintiff has had a very limited education, and he presented in Court as relatively unsophisticated. He has limited skills, no qualifications, no computer skills, and has never worked in an office.
27 I was able to observe the plaintiff seated in the witness box – his affidavit evidence that he was not able to sit for long periods of time, was consistent with his presentation in Court, particularly in respect of sitting in the witness box and when seated in the body of the Court.
28 I do not accept that the tasks that he was required to undertake when on modified duties after the incident were any more sophisticated than he described in his evidence.[8] There was no job description for those modified duties, and he was directed to carry out menial and very simple tasks, on a daily basis, some of which were administrative. I also accept that in undergoing any physical work at that time, the walking distances between different areas in the factory, caused soreness to his knee and that he was frequently required to rest.[9]
[8]T19-23, T42
[9]T42
29 Counsel for the defendant made no attack on the plaintiff’s credit. I accept him as a straightforward and honest man who attempted to answer all questions as best he could. He made concessions. I did not detect any exaggeration nor affectation, and he impressed me as a man who genuinely wanted to return to work. I accept the plaintiff as a witness of truth.
The Plaintiff’s medical evidence
30 Dr Li, the plaintiff’s general practitioner, in a report dated April 2019, thought the plaintiff was fit to do modified duties without lifting and bending. He would not be able to return to his pre-injury duties. Dr Li provided a Certificate of Capacity dated 13 February 2019.[10]
[10]DCB 177
31 Mr Tran, orthopaedic surgeon, who performed the plaintiff’s knee reconstruction surgery, provided a report dated 2 August 2017.[11] Mr Tran did not proffer an opinion as to the plaintiff’s work capacity at that time, though noted that the plaintiff should avoid heavy manual lifting.
[11]PCB 47
32 David Coulson, physiotherapist, has treated the plaintiff since 9 August 2016. In his report dated 14 August 2017,[12] he was of the opinion that the plaintiff would not be able to return to pre-injury duties. He accepted that the plaintiff had work capacity and was hopeful that the plaintiff could find a job where he was more involved in administrative duties, which he regarded as a more suitable long-term option.
[12]PCB 48-50
33 In a later report dated 8 March 2018, he opined:
“My feeling is that he has a capacity to work, however the capacity is limited to no long periods of standing or extra distances in walking. He also would need to be careful with repetitive heavy lifting and squatting. He would have to avoid kneeling and this would probably mean he would need some form of administrative duties where he was required to sit more time than stand but still would have an ability to get up and move around.”[13]
[13]PCB 53
34 Dr David Murphy, consultant physician in rehabilitation medicine, in his report dated 8 February 2019,[14] opined that on the basis of the plaintiff’s pre-employment history and the quite significant nature of his knee condition, that he is incapacitated for any form of employment.[15]
[14]PCB 63
[15]PCB 68
The Defendant’s medical evidence
35 Mr Graeme Doig, general orthopaedic and trauma surgeon, in a report dated 2 May 2016, opined that the plaintiff was unlikely to be fit for pre-injury duties in the future. He thought that he would require a permanent, more sedentary job, to continue in the workforce.
36 Dr Malcolm Brown, occupational physician, in his report dated 27 March 2019, accepted the plaintiff does not have capacity to return to work as a furniture removalist. He viewed the plaintiff as having the capacity for suitable employment not involving constant standing or use of stairs or ladders, or heavy lifting, on a full-time basis.
37 Dr David Barton, consultant occupational physician, in his report dated 20 April 2018, opined that the plaintiff had a theoretical capacity for suitable work if he could find a suitable job. He saw no reason why the plaintiff could not return to work in a lighter job with no prolonged standing, no prolonged walking, no squatting or kneeling. He thought the plaintiff should also avoid heavy lifting.
38 Mr Michael Dooley, orthopaedic surgeon, in a report dated 26 March 2019, viewed the plaintiff having no capacity for pre-injury employment but capacity for suitable employment involving light physical work and clerical duties. He opined that the plaintiff should return to work on a graduated basis, progressing to full time over a twelve-month period.
39 All the medical evidence, apart from Dr Murphy, suggested that the plaintiff has some capacity for work. Counsel for the defendant described this latter opinion as an unduly pessimistic view.[16]
[16]T62
Capacity for suitable employment
40 The assessment as to what constitutes suitable employment for a plaintiff is a test of physical capacity, not employability, and it involves consideration of what the plaintiff 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.
41 The 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.
42 Both physical capacity and matters personal to the plaintiff are relevant to a consideration of suitable employment for the individual plaintiff.[17]
[17]Weldemichael v ID Sales and Repairs Pty Ltd [2019] VSCA 68 at paragraph [76]
43 As indicated above, the defendant submitted that there were four areas of work that would constitute suitable employment for the plaintiff. I will consider each of these individually, along with the relevant medical evidence.
(i) Mobile Road Safety Speed Camera Operator
44 This job was described as ensuring the successful detection and prosecution of drivers who exceed the speed limit through the setup, operation and monitoring of safety camera equipment. The demands of the job were listed in the IPAR report[18] and relevantly included that:
[18]DCB 102
· Sitting is constant;
· Mental activities necessary include technical, decision-making, problem-solving and communication skills;
· There are limited opportunities for flexibility of movement; and
· There are no entry requirements for this job, with training provided.
45 In respect of the demands for this job, and whether it constituted suitable employment, argument and evidence was directed towards the plaintiff’s physical capacity to be seated constantly and to engage in the required mental activities listed in the job description.
46 Dr Murphy opined that it would be difficult for the plaintiff as the job would require him to get in and out of cars, and to drive for considerable periods.[19]
[19]PCB 67
47 Dr Barton opined that the plaintiff could do this job. He understood this job involved people driving vehicles to one or two locations, and that they generally stayed in the car most of the time.[20] In a later report, Dr Barton described the job as involving simply driving a car to a location before presumably driving onto the next location as per police direction.[21]
[20]DCB 217
[21]DCB 218
48 Dr Brown opined that based on his assessment of the plaintiff’s current capacity and relevant restrictions, the plaintiff could carry out this role.[22]
[22]DCB 21
49 Counsel for the defendant submitted that Dr Murphy did not have specialist occupational health and safety qualifications or experience, and his opinion as to the suitability of this job, as opposed to the plaintiff’s physical capacity, was outside his expertise. It was submitted that I should prefer the opinions of Dr Barton and Dr Brown, both occupational physicians.[23]
[23]Giankos v SPC Ardmona Operations Limited (2011) 34 VR 120 at 96
50 It was submitted by counsel for the defendant that:
· the tasks described by Dr Murphy as being required to be undertaken in this role did not have an evidentiary basis, or were not included in the job descriptions in the IPAR report.[24]
[24]T60
· There was no medical evidence that the plaintiff’s physical restrictions included him not sitting for extended periods – that no mention was made of this as a restriction in any of the medical reports, including those relied on by the plaintiff.
· A Victorian WorkCover Authority Certificate of Capacity, completed by Mr David Coulsen, physiotherapist (treating practitioner) on 24 April 2018, stated that the plaintiff has a capacity for suitable employment, and noted the following restrictions:
· “Can do full time but modified duties of sitting and occasional standing (no longer than 20 minutes at a time) and walking;
· Limit walking to 100m – this is a total for the day so should be careful repeating longer walks;
· No repetitive squatting or lifting from ground;
· No kneeling;
… .”[25]
[25]DCB 95 – IPAR report
51 Counsel for the plaintiff submitted that the plaintiff’s physiotherapist, Mr Coulson, was of the opinion that the plaintiff could carry out some form of administrative duties, where he was required to sit more time than stand, but still would have an ability to get up and move around.[26] This was, it was submitted, as distinct from a role that required constant sitting. Alternatively, it was submitted that I should accept Dr Murphy’s opinion that the plaintiff has no capacity for this work.
[26]PCB 53 – see also IPAR report
52 I note in the IPAR report in the section of “self report”, the plaintiff indicated he was restricted sitting to 15 minutes at a time. The assessor’s observations of the plaintiff included that he remained seated for the duration of the assessment, and that he had his right knee extended outwards, which he advised was the most comfortable position for him.[27]
[27]DCB 93-94
53 When questioned regarding the job of camera operator, the plaintiff thought that constantly sitting would be a problem as he would need to get up and stretch. In respect of other physical demands listed in the job description for camera operator, the plaintiff accepted he was likely to be capable to do those tasks.[28]
[28]T27-8
54 The plaintiff gave evidence in cross-examination that constant sitting was a problem for him – that he cannot sit for long periods and after about an hour or so he has to get up and move about.[29] In re-examination, the plaintiff described having to move around in the chair at that time when giving evidence in Court, as his knee starts to lock up. When he had referred in cross-examination to getting up and going for a stretch or moving about, he needed to do that for a period of about 15 to 20 minutes.[30] As indicated I accept the evidence of the plaintiff.
[29]T27
[30]T45
(ii) Truck/fleet allocator
55 This job was described as organising and controlling the operations of an enterprise that operates a fleet of vehicles to transport goods and/or passengers.
56 A Vocational Certificate Ill or IV is generally required and the plaintiff has completed a Certificate in Warehousing. IPAR also noted that the plaintiff has an extensive background in the transport and logistics industry.
57 The typical duties of a transport manager were listed as:
·organise the purchase and maintenance of transport vehicles, equipment and fuel;
·liaise with clients to determine requirements and provide customers with advice and information regarding vehicle type, purchase or hire rates and obligations and handle complaints;
·receive orders and bookings, and plan and implement transportation schedules;
·ensure goods are stored and transported in conditions that will maintain their quality;
·arrange collection and delivery of vehicles and goods;
·maintain business records and prepare operational statements and reports;
·ensure compliance with occupational health and safety regulations.[31]
[31]DCB 103
58 The physical demands of this job are assessed in the IPAR reports as sedentary.
59 Dr Barton noted that the plaintiff had a theoretical capacity to work as a truck allocator.[32] He opined that a truck allocator would appear suitable, based on the role where minimal walking would be required.[33]
[32]DCB 217
[33]DCB 219
60 Dr Murphy noted that the plaintiff was unaware of what this role involved. He thought the position in the IPAR report was essentially quite specific and a specialist position, involving technical skills such as record keeping, which he thought the plaintiff would struggle with. He also noted that the position required the plaintiff to stand and walk around garages, and that he may be required to bend, squat or crouch. He thought it likely that the physical components of this position would aggravate his knee condition.[34]
[34]PCB 68
61 Dr Brown opined that based on his assessment of the plaintiff’s current capacity and relevant restrictions, the plaintiff could carry out this role.[35]
[35]DCB 21
62 Mr Dooley opined that the plaintiff had the physical capacity to do this job.[36]
[36]DCB 65
(iii) Information Officer
63 The duties of this role may involve performing any of the following tasks:
·Answers enquiries about goods and services, and provides information about their availability, location, price and related issues;
·Responds to enquiries about problems and provides advice, information and assistance; records information about enquiries and complaints;
·Refers complex enquiries to team leaders or expert advisers;
·Issues relevant forms, information kits and brochures to interested parties;
·Accesses and operates computer network systems and communication systems such as public address and paging systems;
·May refer enquiries to other sources.[37]
[37]DCB 107-108
64 The demands of this role are typically sedentary, involving constantly sitting at a workstation, carrying out a variety of both manual and computerised data entry tasks with opportunities for flexibility of movement. Mental skills necessary include a sound level of recording, organisation and communication skills.
65 It was noted in the IPAR report that this job would require computer retraining.[38]
[38]DCB 109
66 Dr Barton considered this role in the transport industry may be an option for the plaintiff, though it would, to some extent, depend on the intellectual requirements of the work and the plaintiff’s skill set.[39] Counsel for the defendant conceded that Dr Barton was less enthusiastic about this job.
[39]DCB 220
67 Dr Brown opined that, based on his assessment of the plaintiff’s current capacity and relevant restrictions, the plaintiff could carry out this role.[40]
[40]DCB 21
68 Mr Dooley opined that the plaintiff had the physical capacity to do this job,[41] though he is not an expert as an occupation physician.
(iv) Warehousing/Despatch Supervisor
[41]DCB 65
69 This job is described as administering and co-ordinating storage and distribution operations within an organisation. The physical demands are described as light.
70 Typical duties of a warehouse administrator are stated as:
·requisitioning supplies from stock and sending orders to production departments and other firms;
·confirming completion of orders and compliance with details specified, signing tally sheets and attaching to checked items;
·receiving and checking purchase requests against inventory records and stock on hand;
·examining orders and compiling data for production schedules;
·checking inventories and preparing delivery schedules;
·examining containers to ensure that they are filled, and recording quantities;
·investigating and identifying supply sources and preparing and processing purchase orders;
·providing price and other information about goods to prospective customers;
·counting incoming stock and reconciling it with requisitions, and updating inventory and stock location records. [42]
[42]DCB 170
71 Dr Brown opined that based on his assessment of the plaintiff’s current capacity and restrictions, the plaintiff could carry out this role.[43]
[43]DCB 22
72 No other medical professional specifically considered this role.
The Plaintiff’s evidence regarding each of the roles
73 Each of the roles identified by the defendant in the reports were put to the plaintiff in the course of cross-examination. I have outlined those responses in respect of the job of camera operator above. [44]
[44]Paragraphs 53 and 54
74 The plaintiff expressed concern that each of the other roles involved clerical/computer skills which he did not possess, indicating such jobs:
“… [need] a fair bit of computer knowledge”;[45] “sounds like computer stuff, … I’m not sure what that means.”[46]
[45]T31; T32
[46]T38
75 As to truck allocator – receiving orders, bookings and planning and implementing schedules, the plaintiff stated:
“… most of that is all done by computer … it would take a fair bit of learning of the computer skills to actually do the truck allocating. … at Kents … [truck allocators] was done by computer.[47]
[47]T31-32
76 In re-examination he said he “honestly don’t think have any chance of getting a job like that. I have no skills in that area, I have no experience in that area.”[48]
[48]T43
Counsels’ submissions
77 Counsel for the defendant submitted, and I accept, that I should focus on the capacity for the plaintiff to do a particular job, not the market for the jobs.[49]
[49]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [25]
78 Counsel for the defendant submitted that the plaintiff had shown the potential to learn and to undertake administrative-type jobs in the workplace when he was placed on modified duties with the employer after the incident. The plaintiff accepted that he could attempt roles outside his previous work, which had been exclusively in driving and manual labour.[50] The plaintiff also accepted that he was capable of being able to pick up new skills.[51]
[50]T29
[51]T30
79 Additionally, counsel for the defendant submitted that the plaintiff bears the onus of proving any inability to be retrained or rehabilitated. I was required to take into account the reasonableness of attempts made by the plaintiff to undergo rehabilitation and training. It would appear that at least the last three potential jobs require a level of knowledge of computer skills, and that each of the jobs require clerical or administrative-type office work.
80 Counsel for the defendant submitted that the plaintiff, in seeking alternative employment, had unreasonably limited himself to only driving or manual jobs – that it was reasonable for the plaintiff to engage in training, such as gaining computer skills. That is, the plaintiff should retrain himself or acquire new skills and that as he had not done so, he had not discharged the onus of making reasonable attempts to re-train himself and thus be suitable for these roles.
81 Counsel for the plaintiff submitted that:
· the plaintiff had undertaken a course as recommended by IPAR regarding traffic control;
· IPAR had not recommended any computer course be undertaken by him;
· the plaintiff had very limited skills and the jobs or role that he undertook when on modified duties with the employer were very basic and unsophisticated;
· the tasks that were undertaken by the plaintiff whilst on modified duties did not involve formal supervision of others nor the completion of documents such as to indicate that he understood the logistical information of the business;
· the plaintiff had no knowledge of computer operations as existed with the employer – this was in a different area of the business;
· he had no computer skills, with his own personal mobile telephone being used exclusively for texting and calling – he had no knowledge of use of the internet.
Conclusion
82 It was accepted between the parties that the plaintiff cannot return to pre-injury employment.
83 I accept the plaintiff’s explanation as to the difficulties he would face in the four areas of employment.
84 Constant sitting in respect of a camera operator role is a physical restriction that I am not persuaded, on the basis of the plaintiff’s own evidence, that he could endure.
85 The other significant issue involves consideration of his education, skills and experience relevant to all four potential jobs. Gaining of computer skills and/or knowledge of administrative and logistic processes in performing a clerical role in respect of all four jobs are skills that are needed, and I do not accept that the plaintiff could do that.
86 Having regard to the fact that the plaintiff has worked in manual labouring jobs of truck driving/furniture removalist for most of his life, was educated to Year 10,[52] has limited or no knowledge of using a computer or completing logistical/administrative tasks, I am of the opinion that there is no suitable employment.
[52]PCB 14
87 I accept that the plaintiff has taken reasonable steps to re-train himself – this is so even though he has not attempted to undertake or tried obtaining computer skills. Given his skills, education and experience, I do not accept that it was reasonable for him to undergo such training.
88 I accept that his inability to return to work represents a significant loss to this plaintiff.
89 The plaintiff is now fifty-four years of age. The plaintiff’s working life has been in physical labour/driving work. The plaintiff is a man who has derived his livelihood from driving and the strength of his body throughout his life. He has always been a manual worker. He has no capacity to return to any employment for which he is suited.
90 The plaintiff impressed me as a man who wanted work. Given the plaintiff’s age, I accept that this injury represents a significant loss to the plaintiff.
91 On consideration of the fact that the plaintiff’s injury has persisted since 2015 and the medical evidence, I am satisfied that the plaintiff’s impairment is permanent and he is effectively out of the workforce for any suitable employment as a result of the impairment to his right knee and the consequences flowing from that. I am satisfied that it is fair to describe the consequence of the plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “at least very considerable” when judged by comparison with other cases in the range.
92 Accordingly, there is no need to determine the plaintiff’s without injury earnings or go into any analysis of wage rates as provided by the parties, as I do not accept that there is suitable employment for the plaintiff.
93 In view of the matters I have described, the plaintiff has discharged the onus with respect with his impairment of his right knee regarding his loss of earning capacity.
94 As indicated at the outset, it was conceded by the defendant that the plaintiff be granted leave to bring proceedings for pain and suffering damages in respect of his right knee.
95 Accordingly, I grant leave to the plaintiff to bring proceedings for pecuniary loss and pain and suffering damages in respect of his right knee.
- - -
0
3
0