Svetlik v Australian Precast Pty Ltd
[2011] VCC 856
•5 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-10-03569
| DAVID SVETLIK | Plaintiff |
| v | |
| AUSTRALIAN PRECAST PTY LTD | Firstnamed Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Secondnamed defendant |
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| JUDGE: | HIS HONOUR JUDGE BOWMAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 & 20 June 2011 |
| DATE OF JUDGMENT: | 5 July 2011 |
| CASE MAY BE CITED AS: | Svetlik v Australian Precast Pty Ltd & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 856 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages and pecuniary loss damages – back injury – value as to credit of extensive film of plaintiff surfing when plaintiff has disclosed this in affidavit and to medical practitioners – sensible method adopted for showing of lengthy film to court and to medico-legal expert – pre-injury plaintiff was concreter but now part-time integration aide at primary school – question of capacity – assessment of without injury and after injury earnings – whether burden of proof discharged.
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with | Maurice Blackburn |
| Mr S Carson | ||
| For the Defendants | Mr S Smith | Wisewould Mahony |
| HIS HONOUR: |
Background
1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in relation to both pain and suffering damages and pecuniary loss damages. In bringing his application, the plaintiff relies upon sub-paragraph (a) of the definition of serious injury found in s.134AB(37) of the Act. The injury upon which the plaintiff relies is one to the spine but with particular emphasis upon the lower back. Indeed, it seems to me that the plaintiff’s case fails or succeeds on the basis of consequences emanating from his low back as opposed to his upper spine. The relevant injury occurred on or about 15 July 2003. I might say at this stage that the interests of the defendants overlap entirely. Henceforth I shall refer only to “the defendant”, meaning Australian Precast Pty Ltd by which entity the plaintiff was employed and in which employment he sustained the injury in question.
2 Mr P O’Dwyer SC with Mr S Carson of counsel appeared on behalf of the plaintiff. Mr S Smith of counsel appeared on behalf of the defendant. The plaintiff was called to give evidence and was cross-examined, as was Mr Thomas Kossmann, orthopaedic surgeon, who had examined the plaintiff at the request of his solicitors. The balance of the evidence was documentary in nature, including lengthy surveillance material.
3 I am familiar with the numerous decisions of the Court of Appeal which bear upon applications such as this and shall endeavour to apply the principles set out in them in coming to a decision in this case. I shall not list such cases here but shall refer to any cases which I consider to be specifically relevant in the course of this Judgment. It was not argued but that the plaintiff bears the burden of proof.
Factual background
4 The following findings of fact are made for the purpose of this application and are not intended to be findings which are in any way determinative in relation to issues such as negligence, the quantum of damages, entitlement to statutory benefits and the like.
(i) The plaintiff 5 The plaintiff impressed me as a completely straightforward, frank and honest witness. On several occasions he made admissions against interest. I note that he was described by Mr Peter Battlay, surgeon, examining on behalf of the defendant as being pleasant, cheerful and co-operative. Mr Peter Scott, senior consultant surgeon, described the plaintiff as being a pleasant and communicative individual and as being genuine. The defendant also had the plaintiff examined by Dr Richard Prytula, psychiatrist, who described the plaintiff as pleasant and attending accurately to comments and questions. Mr Brendan Dooley, orthopaedic surgeon, recently examined the plaintiff at the request of the defendant’s solicitors and reported that he was a pleasant person who did not appear to be exaggerating his symptoms or disability. Mr Gill, consultant psychiatrist, examined the plaintiff at the request of his solicitors and similarly noted that the plaintiff appeared to be fully co-operative in answering questions.
6 I agree with all of the above observations. I found him to be a singularly impressive witness and I had no reason to doubt his reliability in describing events, consequences and symptoms.
7 The lengthy video material which I was shown had no adverse impact upon the plaintiff’s credit. It may be that it warranted consideration in relation to issues such as capacity or interference with lifestyle, but it did not damage the plaintiff’s credit.
8 True it is that the film shows the plaintiff surfing, preparing for same when doing things such as donning his wetsuit and waxing his board, and again changing and packing his belongings after being in the water. However, as I observed from the Bench, film of a person running may have no adverse effect on credit if such person freely states that he is able to run and does so. A film of a person walking can be devastating to credit if the person involved claims to be permanently confined to a wheelchair. The value of film in relation to credit (as opposed to lifestyle or capacity) often depends to a considerable extent upon its evidentiary context.
9 In the present case the plaintiff has made no secret of the fact that he goes surfing. As early as December 2003 the plaintiff’s general practitioner, Dr Whiteside, noted that the plaintiff had been allowed to return to swimming and was hopeful that this would be helpful. The plaintiff’s subsequent general practitioner, Dr Lancaster, reported to the plaintiff’s rehabilitation case manager (presumably organised by the defendant) that: “He often surfs, which does help his back’s mobility and strength”. To Mr Peter Scott, examining on behalf of the defendant, the plaintiff referred to his surfing in the summer which apparently temporarily aggravates his back problem. To Dr Prytula, examining on behalf of the defendant in October 2009, he stated that he went to the beach, walked and may surf.
10 Indeed, in his affidavit of 18 August 2009, the plaintiff swore that he had always been a very keen surfer and that he still surfed. He did state that he cannot surf as much as he used to but believed that he needed to keep surfing to keep fit and sane. In short, there has been absolutely no secret about the plaintiff’s surfing. The impression given from the report of Dr Lancaster is that he considers the surfing to be beneficial. Mr Kossmann was also shown the films and gave evidence that there was nothing in them which would cause him to alter his opinion which is, in essence, that the plaintiff is totally incapacitated in respect of the work which he previously did and that such situation is permanent. I will also refer subsequently to the opinion of Mr Kossmann in relation to the part-time work which the plaintiff is currently performing. The films also had no adverse impact upon his views in this regard.
11 As shall be discussed, Mr Kossmann diagnosed the plaintiff as suffering from discogenic back pain. He gave evidence that he believed that going surfing was actually quite beneficial for the plaintiff in relation to the physical exercises which would need to be performed in addition to the psychological well-being which would result. Had Mr Kossmann been the plaintiff’s treating surgeon, he would have allowed him to go surfing. Further, as I observed from the Bench, there were times in the more recent film of 28 July 2010 that the plaintiff appeared to be moving carefully and protecting his back. Mr Kossmann made a similar observation.
12 In short, the films shown, whilst lengthy and portraying the plaintiff being active and doing considerably more than we see people doing in some similar such films, have no adverse impact upon his credit. Indeed, they also have no such impact upon the issue of the plaintiff’s capacity to perform limited part-time work. I am indebted to counsel and their instructors for taking the time effectively to edit these extremely long films by agreeing on portions which could be fast forwarded. I am also indebted to Mr Kossmann for taking the time over a weekend to view the films so as to be able to comment upon them in court without more court time being wasted by the showing of them.
(ii) The plaintiff’s education, background and training prior to the injury 13 The plaintiff is aged 50 years, having been born on 25 April 1961. He is a married man with four young children under the age of 10 years. He was born in Traralgon and, whilst he has lived in various places, including Melbourne where he worked for the defendant, he now resides at Lake Tyers Beach in East Gippsland. By way of education, he completed Year 10 level but was unable to complete Year 11. His work has largely been in labouring occupations and these include storeman and packer, council worker, garbage collector, deckhand on a fishing boat and various casual jobs.
14 The plaintiff commenced employment with the defendant in approximately 1996. I accept that this was hard physical work, particularly when in approximately 1997 or 1998 the plaintiff began work as a concreter. From about that time the plaintiff commenced to develop back soreness on virtually a daily basis. He took some days off work from time to time, received physiotherapy and the like. He wore a back brace for many years. The specific incident of injury alleged occurred in approximately July 2003.
15 Thus, the plaintiff is a man of limited education who has worked in a number of physically demanding occupations. In the years prior to July 2003 he worked as a concreter, a position described by him in his affidavit of 18 August 2009 as being “much harder work”, a proposition which, perhaps not surprisingly, was not the subject of any substantial challenge.
16 The defendant had filed and served two affidavits, one being of Mr Alan Ditchburn, general manager of the respondent, and the other being of Mr Corey Stewart, who had been the plaintiff’s supervisor. Both have sworn that the plaintiff’s work as a concreter was not physically demanding or heavy. No attention was paid to these affidavits during the conduct of the case. Essentially there was no challenge to the proposition that the plaintiff could no longer work as a concreter and no challenge to his evidence as referred to above.
The injury
(a) The state of plaintiff’s health prior to the injury 17 The plaintiff had suffered a number of injuries over the years. He suffered a head injury in a motor cycle accident when he was approximately 14 years of age, having earlier suffered a hairline fracture of the skull as an infant. He has suffered from Irritable Bowel Syndrome, this commencing in the 1990s and this still can affect him although he is able to manage it reasonably effectively. He has also had problems with a peptic ulcer. As stated above, prior to 14 July 2003, and whilst working for the defendant, he had suffered from back soreness involving days off work from time to time, and at one stage his employer provided him with a brace for his back, and he wore that for many years. However, he continued performing the heavy duties of a concreter prior to the incident of approximately 15 July 2003.
(b)
The injury of approximately 15 July 2003, its treatment and assessment
18 On or about 15 July 2003 the plaintiff injured his lower back when attempting to move a metal chute at the back of a concrete truck. The circumstances and occurrence of injury were not the centre of any great dispute. Liability was accepted by the defendant and payments of statutory benefits commenced.
19 In any event, the plaintiff’s back was very sore at the end of the working day of 15 July. He went to work again the following day, but felt severe back pain including pain radiating to the thighs. In a couple of the histories taken by medical examiners, there is reference to this severe back pain coming on when the plaintiff was in the tearoom of the defendant. For the purposes of this application, nothing hinges on this. The plaintiff was not challenged in relation to the proposition that the work performed with the metal shoot was productive of the symptoms and consequences from which he subsequently suffered. Liability in respect to the payment of statutory benefits was admitted in this regard, and was not put in issue during the conduct of this application. He was about to take time off for paternity leave, and did this. He attended upon his then general practitioner, Dr Whiteside. He was referred for physiotherapy and also attended a gymnasium on a regular basis. He commenced modified duties on 24 July 2003, these consisting of sweeping rubbish and rubble and generally cleaning up. Occasionally he attempted his previous work, but it was too hard for him. By 11 March 2004 Dr Whiteside was reporting that it was very unlikely that the plaintiff would ever be able to cope well again with repetitive bending. He continued with physiotherapy and regular visits to the gymnasium.
20 An x-ray of the lumbar spine of 12 September 2003 was normal. Dr Whiteside referred the plaintiff for a CT scan on 5 August 2004. Again, no abnormality was detected. At the end of 2004 the plaintiff was made redundant and his employment with the defendant came to an end.
21 It would seem that at about this time the plaintiff changed general practitioners, possibly because of the change of address. He commenced seeing Dr Lancaster at Lake’s Entrance. Dr Lancaster diagnosed mechanical lower back pain, noting that the incident in July 2003 “sparked off his back and caused pain from his low back to both knees”. The plaintiff was referred to a local orthopaedic surgeon, Mr Peter Rehfisch, who detected nothing abnormal on x-rays, felt that there was no surgical option available, but also felt that the plaintiff could not continue with the work which he was then doing. This is a reference to the fact that, at about that time (November 2005), the plaintiff had commenced doing part-time light work with a friend who was a builder, namely Mr Johnny Daniel. He had attempted 20 hours per week, working at his own pace and doing some cleaning up, nailing, carrying of boards, and tasks such as pulling plaster from walls.
22 A further x-ray of 7 December 2005 failed to reveal any abnormality. In his report of 7 July 2007, Dr Lancaster stated that the plaintiff had tried chiropractic treatment which provided temporary relief, but was then seeing a physiotherapist. The plaintiff was not keen to take medications of any form, and it is to be remembered that he has suffered stomach problems. At the time of Dr Lancaster reporting, the plaintiff was working a maximum of 16 hours per week and not more than four hours per day with Mr Daniel. He described some days as being terrible for him, and other days as not so bad. Dr Lancaster described the low back pain as chronic and suggested the plaintiff needed retraining. In a brief letter of 14 September 2007, Dr Lancaster expressed the view that, in working 16 hours per week, the plaintiff was “most definitely” working at his maximum capacity. He could not see this situation changing. On 22 May 2006 the plaintiff underwent an MRI of the lumbar spine. This in fact seems to have been suggested by Mr Scott and I would refer to his report of 30 May 2006. This showed evidence of disc degenerative change at L3/4 and L4/5 without evidence of any focal disc protrusion or significant central canal stenosis. It also revealed evidence of generalised bulging and marginal spur formation resulting in mild bilateral bony foraminal stenosis at the L5/S1 level. Whilst the MRI report does not appear to be in the material put before me, its contents are set out in the report of Mr Scott referred to above and, for example, that of Dr Baker of 2 March 2009.
23 Referring to the plaintiff’s treatment, his general practitioner is now Dr Zhang, he being from the clinic at which Dr Lancaster previously worked. His part- time employment with Mr Daniel ceased in June 2009 when he was retrenched due to a downturn in work. His weekly payments of compensation ceased at that time. As shall be discussed, he has subsequently found part- time work as an integration aide at Bairnsdale Primary School. He continues to exercise regularly, occasionally wearing a lumbar support. The plaintiff has also had some further difficulties with peptic ulceration. He takes occasional Panadol Osteo.
24 A number of medical examiners have seen the plaintiff for medico-legal purposes at the request of the defendant. Mr Peter Battlay saw the plaintiff in January 2004 and diagnosed a lower lumbar disc strain, but his report is now considerably out of date and, at the time, whilst placing restrictions upon the work activities in which the plaintiff should engage, he was unable to predict the duration of incapacity. Mr Peter Scott saw the plaintiff on 29 August 2005. He diagnosed an acute back strain and suspected that the plaintiff may have developed a discogenic problem at the L5/S1 level. His view was that the plaintiff was not fit for his pre-accident employment and was fit for light work only. He considered that there was a degree of uncertainty in relation to the prognosis. I note that Mr Scott seems to have attributed the onset of the relevant symptoms to an incident in the tearoom of the defendant, but this does not sit comfortably with the balance of the evidence. The plaintiff was in no way challenged in this regard. It is to be remembered that liability was admitted. I shall not deal with this aspect of the history any further. Mr Scott saw the plaintiff again on 9 February 2006. Mr Scott stated that, while there were no obvious features of lower limb radiculopathy, “I can state that he continues to have symptoms but is a genuine individual”. Mr Scott advised the continuation of chiropractic treatment, suggesting a self-imposed course of strengthening exercises. He also expressed the view that the plaintiff should avoid repetitive bending or lifting of more than ten kilograms in weight, describing this as a situation which was going to preclude the plaintiff’s ability to work full-time as a builder’s labourer.
25 Dr Phillip Mutton, consultant occupational physician, saw the plaintiff at the defendant’s request on 14 February 2007. He felt that the evidence revealed on the MRI of degenerative disc changes to L3/4 and L5/S1 could well be the basis for the plaintiff’s complaints of pain with activity. He also stated that the degenerative changes identified meant that, for as long as the plaintiff undertook physical activities, he would be subject to aggravation and employment would remain a significant contributing factor to his presentation. He referred to the particularly demanding work of being a concreter, stated that the plaintiff was not expected to be able to return to unrestricted concreting duties, and put a considerable number of restrictions upon possible employment activities. He also expressed the view that working as a builder’s assistant (the work with Mr Daniel) was likely to put the plaintiff at risk of further injury. He described the plaintiff as suffering from chronic low back pain.
26 Dr Chris Baker, specialist in occupational medicine, saw the plaintiff on 20 February 2009. In his view the plaintiff was suffering from symptomatic degenerative disc changes in the lower lumbar spine and had developed radiculopathy. He noted that, at the time of the examination, the plaintiff was working 16 hours per week and, having reviewed the history and the various medical reports with which he was provided, it appeared to Dr Baker that the plaintiff was working to his maximum. He considered it likely that the plaintiff would continue to suffer symptoms of a similar degree in the foreseeable future and did not anticipate an alteration in his work capacity. Whilst considering the injury be in the nature of an aggravation, he was not of the view that the work component had resolved.
27 Dr Iain Nicholson, a general practitioner, saw the plaintiff at the request of the defendant on 20 August 2009, but this was for the purposes of assessing permanent impairment. He diagnosed a musculoskeletal injury to the back. He considered that the injuries were starting to become stable, whilst not amounting to a total loss.
28 Mr Brendan Dooley, an orthopaedic surgeon, examined the plaintiff at the request of the defendant on 22 November 2010. As pointed out by Mr O’Dwyer, it is important to note that Mr Dooley did not have access to any reports in relation to the MRI scan and has specifically stated that he had no such access in his report. Further, he has listed the medical reports and other items of material that were placed before him. As he was not provided with reports such as those of Mr Scott, Dr Baker or Dr Mutton, he did not even have the benefit of a summary of the MRI results as set out in those documents. Why he was not at least provided with these is something of a mystery. Particularly bearing in mind that we frequently hear how MRI scans are more accurate and detailed than other forms of radiological investigation, it is hardly surprising that Mr Dooley found it difficult to give an exact answer in relation to the question of capacity, as he considered the diagnosis to be uncertain and the exact cause of continuing symptoms not clear. Nevertheless, Mr Dooley formed the view that the plaintiff was not exaggerating his symptoms and he could not detect the presence of any functional component or psychological reaction to the physical condition. He also placed a considerable number of restrictions upon the type of work that the plaintiff might be able to perform, believing that work that was not heavy, such as childcare work, would be suitable. There is no suggestion that Mr Dooley is of the view that the plaintiff could resume work as a concreter.
29 The plaintiff’s solicitors arranged a medico-legal examination by Professor Myers, he having seen the plaintiff on 24 April 2009. He diagnosed the aggravation of pre-existing degenerative intervertebral disc disease by employment. He also expressed the view that the plaintiff will never get back to work of a physical nature, describing the plaintiff’s incapacity for work as being permanent. At the time of his examination the plaintiff was performing part-time lighter duties with Mr Daniel. Whilst Professor Myers was essentially assessing permanent impairment, he also made the above observations and expressed the view that he could see no reason why there would be any improvement in the future.
30 As previously stated, the plaintiff was also examined by Mr Kossmann. He reported on 16 May 2011 and also gave oral evidence. Unlike Mr Dooley, Mr Kossmann had access to the conclusions of the MRI. His diagnosis was of a discogenic back pain on the basis of two level disc degeneration (L3/4 and L5/S1) and generalised disc bulge and marginal spur resulting in mild bilateral bony foraminal stenosis at the L5/S1 level. He considered the plaintiff’s injury to be caused by his employment and also to be stable. He did not expect any significant improvement. He was of the view that the plaintiff was 100% incapacitated to work as a concreter and that such incapacity was permanent. His oral evidence was impressive and dealt to a considerable extent with capacity and symptomatology. He did not resile from the opinions expressed in his report and referred to above.
31 A Certificate of Opinion from a Medical Panel obtained pursuant to s.93CD(4)(b) of the Act was given on 4 April 2008. This opinion dealt solely with capacity for employment, the view being expressed that as at that date, when the plaintiff was working for Mr Daniel, he was likely to continue indefinitely to be incapable of undertaking further or additional employment or work because of the injury. I shall return to this later.
32 In light of the above, I accept that the injury suffered by the plaintiff is the aggravation of pre-existing disc degenerative disease, primarily at the L3/4, L4/5 and L5/S1 levels. There is also some reference in the material to a similar aggravation in the cervical spine but, as stated, it seems to me that it is the injury to the lower back with which we are primarily concerned. The plaintiff suffers from what can be described as mechanical lower back pain and I am quite satisfied that the incident of injury in July 2003 continues, and will continue, to play a significant role in his symptomatology. The contrary was not suggested.
33 Bearing in mind that I have found that the injury is in the nature of an aggravation, in accordance with the authorities it is the injury as aggravated which I shall consider. In this regard, true it is that the plaintiff did suffer from some soreness in the back prior to July 2003, and that he wore a lumbar brace at least occasionally, if not on a regular basis. However, he was able to perform work as a concreter – work which has been described in the various reports as being heavy and demanding upon the back and which I accept was hard work. I am quite satisfied that it is the work-related aggravation of the pre-existing degenerative disease that prevents the plaintiff from returning to concreting work or work that is otherwise physically demanding. It has left him with a considerable number of restrictions in relation to the duties that he can perform.
34 I am satisfied that these consequences of injury from which the plaintiff suffers are permanent within the meaning of the Act in that they will persist for the foreseeable future. It is now almost eight years since the plaintiff suffered the incident of injury in question. As long ago as March 2007 Dr Mutton, examining on behalf of the defendant, expressed the view that it was not to be expected that the plaintiff would be able to return to unrestricted concreting duties in the future and that he should maintain certain limitations in relation to the work that he can do. Dr Baker, also examining on behalf of the defendant, reported in March 2009 that “it is likely he will continue to suffer symptoms of a similar degree into the foreseeable future and I do not anticipate an alteration in his work capacity”. Dr Lancaster, in July 2007, referred to the plaintiff’s lower back pain as being chronic. In his report of 14 September 2007, Dr Lancaster stated that he could not see the plaintiff’s situation in relation to maximum working capacity changing in the foreseeable future. I interpret this as being an observation about the permanency of the plaintiff’s condition generally. Professor Myers in his report of 28 April 2009 stated that the plaintiff will never get back to work of a physical nature; that his incapacity for work is permanent; and that he could see no reason why there should be any future improvement. He was prepared to make impairment assessments according to the AMA Guides, a pre-requisite for which is permanency. In his report of 16 May 2011, Mr Kossmann stated that the plaintiff was 100 per cent incapacitated for work as a concreter, and that such incapacity for work is permanent. Again, whilst it is an opinion given in the context of capacity, it is also an indication of the permanence of the consequences of injury. In summary, I am satisfied that such consequences will persist for the foreseeable future and that the plaintiff has discharged any burden in relation to permanence.
35 Pursuant to s.134AB(38)(h) of the Act, the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury. Accordingly, they shall not be taken into account in the present case. However, I am of the view that they are minimal in any event. Mr Dooley, examining on behalf of the defendant, stated in his report of 23 November 2010 that he could not detect the presence of any functional component or psychological reaction to the plaintiff’s physical condition. Dr Prytula, consultant psychiatrist, examining on behalf of the defendant on 5 October 2009, reported that the plaintiff had minimal symptoms of anxiety which pre-dated the incident; sleep disorder due to pain; and was unable to diagnose a psychiatric illness. He could find no particular limitation to the plaintiff’s daily activities by reason of any psychiatric illness. Dr Gill, consultant psychiatrist, examining the plaintiff on behalf of his solicitors, reported on 21 December 2009 that the plaintiff had an adjustment disorder with mixed anxiety and depressed mood secondary to his back injury and associated problems, but his symptoms have largely been controlled and that, on psychiatric criteria, he would expect the plaintiff to have a future work capacity for suitable work. The plaintiff was unlikely to have permanent incapacity for work on psychiatric grounds alone.
36 In addition, the impression made by the plaintiff in the witness box was not of a person suffering from functional overlay or some form of psychological condition secondary to injury. Apart from being impressive, the plaintiff struck me as being realistic and frank. There was nothing florid about his presentation to the court. In addition, and as shall be discussed, his attitude towards returning to the workforce, and the steps that he has taken in that regard, have been commendable.
(iv) The plaintiff’s employment and other developments since the occurrence of injury 37 The plaintiff performed modified duties with the defendant from approximately 24 July 2003 until 21 December 2004. I accept that these involved sweeping, cleaning up and the like and that some aspects of them could be quite heavy. I would refer to paragraph 11 of the plaintiff’s affidavit of 18 August 2009. Having been made redundant, he was then out of work for the best part of a year, ultimately commencing light work with his friend, Mr Daniel, who is a builder, in November 2005. It would appear that, in 2005, the plaintiff completed a course which enabled him to obtain a dogman’s certificate. This would have enabled him to have worked on a crane. Apparently he had an expectation of employment with a local firm in the Lakes Entrance area. He had not operated a crane previously. When he ultimately approached the prospective employer, he was told of the heavy lifting that was in fact involved in relation to putting things in place. The prospective employer told him that, given his bad back, he could not be accepted for the position.
38 The work with Mr Daniel involved some nailing, the carrying of boards, demolition work and the like. I have referred to this previously. The plaintiff at first worked 20 hours per week but then 16. Mr Daniel was a very understanding employer and, as recorded in the history taken by Mr Kossmann, the plaintiff was very appreciative of his friend for allowing him to work on a flexible basis. On 4 April 2008 a Medical Panel found that the 16 hours work per week which the plaintiff was performing with Mr Daniel was the most that he could do. When Mr Daniel suffered a downturn in his work, the plaintiff’s part-time employment was terminated, this occurring in June 2009.
39 I note that the history given by the plaintiff to Dr Baker, examining on behalf of the defendant on 20 February 2009, was that he tried to work 20 hours a week with Mr Daniel but was unable to cope as he had continuing lower back pain. The plaintiff reduced his hours and would phone in and not attend on some occasions. He also noticed increasing soreness in his back towards the end of the day. Indeed, as Dr Lancaster observed in his report of 25 July 2008:
“As long as David continues to work as a labourer, his back (and knees etc) will never recover. They will more than likely deteriorate. He needs a different occupation or retraining. I am amazed he works as much as he does.”
40 After the plaintiff was retrenched by Mr Daniel, he looked for suitable part-time work and also registered with an employment agency in Lakes Entrance. In approximately February 2010 the plaintiff obtained some kindergarten work. His duties were that he was required “just to be with the kids to do the routines they normally go through” (see transcript p.58). The number of hours per week worked by him in this occupation was less than 10. The plaintiff liked working with children, which is perhaps not a surprise given that he has four young children of his own. In July 2010 at Bairnsdale Community College he commenced a course in the hope of obtaining a Certificate III in Children’s Services. His ambition was to become a kindergarten assistant. However, he did not complete the course. He had great difficulty in completing assignments allocated to him, finishing only three out of the required 12. As the plaintiff stated frankly in his evidence, “it was beyond my mental ability” (see transcript p.19).
41 In early 2011 the plaintiff obtained a day’s casual work as an integration aide at Bairnsdale Primary School. This led to that position being confirmed and since approximately March 2011 the plaintiff has been working in that capacity. His normal number of working hours per week is 16.5, the work being performed on a Monday, Wednesday and Friday. (I appreciate that, for reasons which are not entirely clear, the documentary material put before me seems to show that the plaintiff has seldom worked precisely 16.5 hours per week or 33 hours per fortnight. Sometimes he has worked a smaller number of hours. However, I accept his evidence that 16.5 hours per week is what he would normally expect to work.) He is not paid during school holidays as there is then no work available. Essentially the plaintiff’s duties are to look after one particularly troublesome child. Special funding is received in this regard. I gather that the child in question is disruptive, does not sit still for long and is generally a problem. The plaintiff has described how he has to bend a lot – “I’m bending every five minutes, just to be down to his level. Probably more. I don’t know the exact estimates of it, but I’m there bending, standing, kneeling. I’m doing the whole lot.” (See transcript pages 17 of 18.) The child also has to be physically restrained at times and effectively chased around the schoolyard. The child also lashes out at people, including other pupils and teachers, and is too difficult for a female teacher to control without assistance. The plaintiff gave evidence, which I accept, that at the end of the day his back is hurting, he is aching all over, and he cannot wait to get home and “put his feet up” (see transcript p.16).
42 Recently, between 19 May and 2 June, the plaintiff worked a 49.5 hour fortnight. That was because some other carer was apparently unavailable and he essentially sat with some Grade 3 and 4 students, attempting to get them to concentrate on what they were doing. The plaintiff agreed that he could probably work 22 hours per week as an integration aide if required, but would not agree that he could work longer and made the statement referred to above concerning how he feels at the end of the day.
43 It would also appear that the duration of the plaintiff’s employment is contingent upon funding being available in respect of the particular troublesome child with whom he spends most of his working time. He does not know whether such funding will continue, and if so for how long, and if it ceases he could then be out of work. The plaintiff is currently working as an unqualified integration aide. He has some desire to complete an 11 week course at Bairnsdale TAFE which would qualify him to work as an integration aide, but doubted that such qualification would result in an increase in wages. In fact, he suspected that his wage would drop if he was no longer employed on a casual basis. In the meantime the plaintiff continues working during term time, performing the duties described for 16.5 hours per week, whilst conceding that he believes he could work up to 22 hours per week. As he works 5.5 hours per day, I take this as meaning that he believes he could do one extra day per week. As previously stated, the plaintiff made a number of frank admissions that could be interpreted as being against his interests.
Ruling
1. Pecuniary loss damages 44
I am of the opinion that the plaintiff has discharged the burden of proof which he bears and is entitled to leave to bring proceedings for pecuniary loss damages. I have arrived at that conclusion for the following reasons which are not listed in order of importance.
45
(a)
I am of the view that the plaintiff is currently working to his maximum capacity in suitable employment. He is working five and a half hours per day on Mondays, Wednesdays and Fridays, which enables him to have a day off in between working days. He has made the concession that he could work an extra day, but whether he is being optimistic in this regard seems to me to be a moot point. Whether he could in fact work 22 hours per week or is at his maximum capacity of 16.5 per week probably has little effect on the outcome, given the mathematics to which I shall turn shortly.
In this regard I accept the evidence of the plaintiff as to his condition at the end of the working day. I accept his evidence that it is the bending and the like that restricts him from working on a full-time basis. Further, Mr Kossmann gave evidence that the plaintiff has tried to work more than 16.5 hours per week, but has “always had to scale back”. Mr Kossmann is of the view that 16.5 hours per week is adequate at this point and that, if the plaintiff from time to time works a little bit longer, that is a judgment that he has to make – see page 63 of the transcript. He agreed that the plaintiff would have an inability to work for more than 16.5 hours a week as a builder’s labourer, and was certainly aware of the nature of the work as an integration aide which the plaintiff is now performing. In cross-examination Mr Kossmann had the duties involved explained to him but would not accept that the plaintiff could necessarily do additional hours in that occupation. At page 70 of the transcript he stated as follows:
“In my opinion playing with children can be quite exhausting also involving bending, twisting his body and that is actually probably not a totally accurate describe what he’s doing there.” (sic)
When pressed on this issue, he did not resile from this view. Mr Kossmann is the only expert examiner whose evidence post-dates the plaintiff commencing his current part-time job and, accordingly, who has been able to express an opinion in relation to the plaintiff’s capacity to perform it. Mr Dooley saw the plaintiff on 22 November 2010 when the plaintiff was doing the course to become a childcare worker, and Mr Dooley considered this to be suitable work. In relation to other suggested jobs, which numbered nine and concerning which no details or duties seemed to have been provided, Mr Dooley imposed such restrictions as to remove several of them from consideration. The plaintiff’s lack of computer skills made other options unsuitable in the opinion of Mr Dooley. He considered childcare work to be a better option, again on the proviso that the plaintiff would have to complete the course and qualify. As we know, this did not happen. The opinion of Mr Dooley in relation to the work which the plaintiff has in fact been performing since March does not seem to have been sought.
The balance of the evidence seems to me to favour the proposition that the plaintiff is currently working at maximum capacity and that this will continue to be the case, although his optimism in relation to working 22 hours per week might at some stage prove correct. I am certainly not of the view that he could work in excess of 22 hours per week in the suitable work which he has been able to obtain.
As is apparent, I am of the view that there is nothing in the surveillance material that would lead me to the conclusion that the plaintiff could return to work as a concreter or work more than 22 hours per week in his present occupation. Mr Kossmann, who has viewed the films and is the only expert examiner who is aware of the type of work the plaintiff is performing, seems to be of similar opinion. Earlier, Dr Lancaster, who was aware of, if not encouraging, the plaintiff’s surfing, regarded 16 hours per week as the maximum the plaintiff could work doing lighter duties with Mr Daniel, and was amazed that the plaintiff could work that much. The surfing and the surveillance do not alter the conclusion which I have reached above.
46
(b)
I am not persuaded by the arguments advanced by Mr Smith to the effect that the plaintiff would not work more than 22 hours in any event because of the situation with his injured wife and four young children. The plaintiff’s wife suffered a prolapsed disc in her back in 2005 and has had some difficulties thereafter. I gather at times she looks after the plaintiff and at other times he looks after her. She does do such things as take the children to school. Even if it be the situation that there are some demands upon the plaintiff’s time in respect of looking after his wife and family, I am not of the view that the supervening injury suffered by her is of any great relevance to the issue of the plaintiff’s capacity. I have already indicated that I consider him to be working at or close to maximum capacity. In his affidavit of 18 August 2009 the plaintiff swore that he was the breadwinner of the family and it was his intention to keep working either as a concreter for the defendant or in some similar job until normal retirement age. I accept this proposition. Furthermore, the relevance of supervening events received considerable attention from Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454.
There are many observations of His Honour’s which are of assistance and I would refer in particular to paragraphs 171 to 179 of his Judgment. His Honour emphasised that the legislature had opted to use the expression “earning capacity”, an expression traditionally used where a determination is made of the loss of the ability of the injured plaintiff to earn money or money’s worth by looking at factors relating to an individual’s body and mind and external factors such as the availability of work. His Honour went on to say:
“It follows, I think, in the context of s134AB(38(f) that the question to be answered is not what would the injured worker have earned taking into account the supervening event, but rather, what was the worker’s ability to earn money in the workforce, taking into account his pre-injury state of health, level of employment and career opportunities as at the time of the injury. The consideration of the period of the three years after the injury is confined to these matters.”
In the present case, as at the time of the injury, the state of the plaintiff’s health permitted him to work as a concreter, that was what he did and the opportunities then opened to him were, in essence, to continue as a concreter or in similar employment. This latter consideration coincides with his sworn intention.
His Honour also pointed to the capricious results that could result should the opposite argument be accepted. He drew the example of a worker being struck by a bus and placed in a vegetative state one day before the expiry of the three year post-injury period as opposed to this occurring one day after the closure of that period. A parallel argument exists in the present case. Had, for example, the plaintiff’s wife suffered the disc prolapse one day after the closure of the six year “window”, it would be disregarded. As it occurred before the closure of the “window”, if the defendant’s argument is correct it is to be taken into account and the plaintiff’s earning capacity downgraded accordingly. As pointed out by Forrest J, given that it is capacity to earn income with which we are dealing, such an approach would not seem correct and could lead to capricious results. The fact remains that, whenever the plaintiff’s wife first started suffering from back problems, until he suffered back injury he was able to work as a concreter, earn the wage that shall be discussed, and continue so to do. There is no medical opinion expressed during the past few years (if at any relevant time) that suggests that the plaintiff is able to work in such an occupation.
In summary, I am not of the view that the argument concerning the plaintiff having other demands on his time by reason of his wife’s back condition and the needs of his young family advances the defendant’s position. I would refer again to the decision in Acir and shall adopt a similar approach in assessing “without injury” earnings.
47
(c)
In relation to “without injury” earnings, I am also of the view that it is the gross annualised figure inclusive of overtime which should be considered and not an hourly rate calculated without the inclusion of such overtime. The latter approach also seems to me to be contrary to the concept of earning capacity. In his last full economic year prior to injury the plaintiff earned $58,280. Whilst he had earned almost $1,600 more in the previous financial year, it seems to me that the earnings for the year 2002-03 are those which most fairly reflect the plaintiff’s earning capacity had the injury not occurred. He was injured early into the following financial year and worked on modified duties thereafter. Whilst I appreciate that it is gross annualised figures that are to be considered, because of the nature of the plaintiff’s “after injury” earnings, it may be of use to strike a weekly rate. For the year 2002-03 that rate would be $1,120.77. I appreciate that this is inclusive of overtime and represents a figure well in excess of one calculated on the basis of the plaintiff’s base hourly rate of $21.05 or $799.90 per week excluding overtime. Overtime may fluctuate from year to year but I see no reason why it should be excluded in a calculation such as this which is founded upon earning capacity. Accordingly, the figure which I select for the purposes of “without injury” earnings is inclusive of overtime. Further, it was argued by Mr O’Dwyer that an increase in earning rates of at least three per cent per annum should be taken into account when considering the three years after the injury. No evidence was put before me as to this. In the circumstances I am not prepared to make the required assessment on the basis of a three per cent increase per annum for the three years following the incident of injury. There was no agreement as to this and, in the absence of evidence, I am not prepared so to do.
Accordingly, I determine that the figure which most fairly represents the plaintiff’s earning capacity had he not been injured is $58,280 per annum.
48
(d)
I turn now to the calculation of the plaintiff’s “after injury” earnings. I find that the worker’s gross income from personal exertion which he is capable of earning in suitable employment is, at its highest, $524.26 per week, assuming a 22 hour working week at $23.83 per hour, this last mentioned figure being established by the evidence. Allowing this for a full 52 week year – and leaving to one side the somewhat persuasive argument that, in a special job such as this where payment is only made during the school year of 39 weeks and not during holidays – the annual earning figure should be calculated on the basis of a 39 week year – gross annual figure produced is $27,261.52. This seems to me to be the absolutely highest figure at which “after injury” earnings could be calculated on the basis of the evidence, and ignores what I consider to be a figure closer to the true situation, namely $15,334.61 being a calculation made on the basis of 16.5 hours per week for 39 weeks a year.
49
(e)
If the higher figure of $27,261.52 is used as the basis of “after injury” earnings, the financial loss after making the comparison required by s.134AB(e) and (f) of the Act is in excess of 53 per cent. I might add that even if it was found that the plaintiff was capable of working 25 hours per week, as he almost did during the fortnight in which he took on the extra work, and this was applied over a full 52 week year, the financial loss produced would be almost 47 per cent.
Thus, even taking an approach which seems to me to be most favourable to the plaintiff on the evidence as I have found it to be, which approach includes ignoring increases in payment to those in the building industry during the three years after the injury and giving the benefit of the doubt in relation to several arguments connected with “after injury” earnings, the required financial loss for the purposes of s.134AB(38)(e) and (f) is clearly produced.
50
(f)
In relation to the operation of s.134AB(38)(g), I am quite satisfied that the plaintiff has made every effort to engage in rehabilitation and to find suitable employment. Indeed, his approach seems to me to have been exemplary. Whilst no great emphasis was placed upon the operation of this particular sub-section, I find that it does not operate to the detriment of the plaintiff.
51
(g)
I have already discussed the question of permanency. I am satisfied that the situation currently prevailing in relation to the plaintiff’s earning capacity will persist for the foreseeable future.
52 The plaintiff has discharged the burden of proof in relation to leave to bring proceedings for pecuniary loss damages.
Pain and suffering damages
53 The plaintiff having established that he is entitled to leave in respect of pecuniary loss damages, he is also then entitled to leave in respect of pain and suffering damages. In this regard I would refer to the decision of the Court of Appeal in Advanced Wire and Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170. I would also refer to the various decisions of this court to similar effect.
Conclusion
54 The plaintiff is successful. He has discharged the burden of proof. Leave is granted to him to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. I shall hear the parties as to any ancillary orders that are required.
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