Son Vu Au v BlueScope Steel Limited
[2013] VCC 853
•7 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01095
| SON VU AU | Plaintiff |
| v | |
| BLUESCOPE STEEL LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 June 2013 | |
DATE OF JUDGMENT: | 7 June 2013 | |
CASE MAY BE CITED AS: | Son Vu Au v BlueScope Steel Limited | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 853 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – 40 per cent loss of earning capacity – neck injury
Legislation Cited: Accident Compensation Act 1985, s134AB(38)(c), 38(f), 37(c), (38)(f)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
Judgment: Leave granted for pain and suffering damages and loss of earning
capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with Mr B Callighan | Ryan Carlisle Thomas |
| For the Defendant | Ms R J Boyce | Sparke Helmore |
HIS HONOUR:
1 In this matter, the plaintiff in the action seeks leave to commence common-law proceedings against the defendant, his current employer, Bluescope Steel Limited, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“The Act”) in respect of both pain and suffering and loss of earning capacity damages. The application refers to an injury to the plaintiff's cervical spine which he sustained in the course of his employment, in particular, on 22 April 2008.
2 At the hearing it was conceded by the defendant that the plaintiff had suffered a “serious injury” within the meaning of s134AB(37)(a) of the Act with respect to pain and suffering consequences. Paragraph (a) provides that a “serious injury” means a permanent serious impairment, or loss of a body function.
3 As a consequence of this concession, the defendant conceded that the impairment to the plaintiff's lumbar spine, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as “at least very considerable” and more than “significant”, or “marked”.[1]
[1]s134AB (37)(c) of the Act
4 Further, the concession includes that the consequences of the injury are serious to the plaintiff, and the consequences will relate to the pain and suffering, such that leave should be granted under that particular head.[2]
[2]Humphries & Anor v Poljak [1992] 2 VR 129 at 140
5 In her opening defence, counsel indicated that the basic issue was whether the plaintiff was able to prove that after the date of hearing the plaintiff would continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more pursuant to s134AB(e)(f) of the Act.
6 In light of those concessions, the facts of the case as relied upon by the plaintiff can be summarised as follows:
(a) Pursuant to agreed figures contained in Exhibit M, the plaintiff's “without injury” earnings pursuant to s134AB(f)(ii) is $53,428.60;
(b) The loss of 40 per cent of those earnings would result in a figure of $32,057 pursuant to s134AB(e)(i) of the Act;
(c) Further, that loss is to be compared to the worker’s gross income from personal exertion expressed at an annual rate which the worker is capable of earning in suitable employment pursuant to s134AB (38)(f)(i)(B) of the Act.
7 It is common ground that the plaintiff is capable of earning, pursuant to this section, at least $31,454.80, which he is presently earning for 23 hours of performing light work per week.
Circumstances
8 I am told without objection that should the plaintiff be able to work in excess of this number of hours, say 24 hours per week, he will exceed the maximum permitted pursuant to this section, being $32,057 as previously expressed.
9 The plaintiff was born on 3 August 1960 in East Timor and he is married with four children whose ages range from thirteen years to twenty-three years. He came to Australia via Portugal, and arrived here in 1982.
10 The plaintiff left school at the age of fourteen and studied Hakka dialect of the Chinese language. Due to the civil war in East Timor, he fled to West Timor, and thereafter, moved to Portugal, where he lived in a refugee camp for some six years.
11 The plaintiff came to Australia in 1982 and since his arrival here he has performed factory work only. He commenced work for the defendant, or its predecessor, Smorgon Steel, in 1997 as a storeman at its factory in Westall, Victoria.
12 It is not in dispute that the plaintiff suffered injuries to his neck in the course of his employment with the defendant in the months leading up to, or on 22 April 2008. As a consequence thereof, he underwent extensive neck surgery in March 2009 involving discectomy and fusion with the insertion of a metal plate and cage. Thereafter, the plaintiff returned to work on light duties after two, or three months off work. However, he has, since that time, still been suffering from constant neck pain, and tingling in the fingers of his left hand.
13 In cross-examination, he indicated that the condition was worsening, to the extent that he was now feeling pain in his right arm. He has been told that he may require further neck surgery in the future.
14 It is alleged that the work with the defendant involved heavy duties, and he had to lift heavy chains and hooks associated with performing those duties on a regular basis. He swore that the lifting work which he had to do placed a great deal of strain on his neck area, and additional strain was imposed on it by the fact that he had to wear a harness which was needed to operate controls for the crane and barcode scanner.
15 In the months leading up 22 April 2008, he experienced neck, left shoulder and arm pain but there was a dramatic worsening of his symptoms on the latter date whilst handling the “duck/penguin” and performing lifting duties.
16 After returning to work, he accepted an offer to work 23 hours per week as follows: three days at five hours per day and two days at four hours per day.
17 In June of 2012, he was offered an increase in hours to 30 hours per week doing five days at six hours per day. He agreed to attempt the work and received support from his treating general practitioner, Dr Nguyen.
18 In cross-examination, he agreed that he was only able to attempt the increase offer for one week in June of 2012 when he worked three days at six hours per day, being the Monday, Tuesday and Friday, and one day at five hours per day, being the Thursday. He agreed that he took the Wednesday off that week off on annual leave.
19 On the following Monday, he reported increased neck soreness and it was agreed by the employer, and his treating doctor, that the hours should be reduced to 23 hours, and that situation pertains until the present time.
20 The medical evidence and the disabilities suffered by the plaintiff are largely not in dispute. The plaintiff's case is that he is at the limit of his performance endurance at the 23 hours per week, and, if anything, he is deteriorating. He was cross-examined to the effect that he had not increased his medical intake, and therefore how could it be said that he was deteriorating. His reply was that if he takes any further medication he will not be able to function at work at all, because of the effects of that medication.
21 The plaintiff's treating general practitioner, Dr Nguyen, gave evidence and was cross-examined. In a probing cross-examination, he nonetheless stuck to his opinion to the following effect:
(a) The plaintiff was and is a genuine individual;
(b) The plaintiff is clearly trying to do his best;
(c) Having already attempted greater hours than he is already performing, he does not believe that he has any greater capacity for a job which he describes as the lightest job that any of his patients are performing;
(d) If anything, the plaintiff's neck condition is deteriorating, because there is now advanced degeneration in the level above the fused section of his neck, because of - in Dr Nguyen's opinion - increased stress placed on the spine at that level on account of the fused level.
22 The medical evidence for the defendant ranges in its opinion but extends to that of surgeon, Mr E Schutz,[3] which considers that the plaintiff would be able to work full-time hours in suitable light employment.
[3]Exhibit 3
23 As to the plaintiff’s credit, I found him to be an honest and straightforward witness, and I did not understand counsel for the defendant to demur from that proposition. In cross-examination, the plaintiff said in a straightforward way that:
(a) he has been willing to try to perform extra hours;
(b) he worked four days in June of 2012 for six hours per day, but found that the increased load was just too much;
(c) he was presently working to the limit of his capacity;
(d) he does not take any increase in medication as he feels he would not be able to function;
(e) he has not made complaints of neck pain in the last few months, because he wishes to keep his job.
24 I should state that there was no suggestion made to the plaintiff that he was in any way aware at the time that he attempted the increased hours in June of 2012, that the 23 hours per week aligned with the threshold permitted under the Act.
25 Theoretically the plaintiff could work as a clerk, or as a car park attendant, but I do not consider that the thrust of the medical evidence is to the effect that the restrictions and the pain that he complains of is not truly in existence. I accept his evidence that as a car park attendant he would be required to move cars on a regular basis from difficult situations which would require a constant turning of the neck to manoeuvre the vehicles. It would also involve the collection of money and the operation of cash registers, which I do not understand any of the vocational records to indicate that he has such a capacity. It is common ground that he has a very limited use of English.
26 That being the case, I refer to the principles set out in Giankos v SPC Ardmona Operations Ltd[4] to the effect that it is not really for the doctors to comment on the vocational abilities of patients, but merely on the medical restrictions within their expertise.
[4][2011] VSCA 121
27 Having said that, the medical restrictions found by the various doctors, in my view, are in keeping with the plaintiff’s description of his symptoms, and although theoretically if he could work greater than the 23 hours as submitted by counsel for the defendant, I do not believe that he would be able to retain that level on a consistent basis, but believe that any consistent work that he could perform would be of the maximum number of hours that he is presently working, and I find it unnecessary to set upon any exact figure in that regard.
28 In my view, for the reasons expressed, the plaintiff has discharged his onus of proof in satisfying me that he would not be able to work at the required statutory level.
29 Accordingly, leave will be granted to the plaintiff to issue proceedings for pain and suffering damages, and for loss of earning capacity damages.
30 I will hear the parties with respect to costs.
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