Taylor v Woolworths Limited
[2010] VCC 1646
•18 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-00481
| DAVID TAYLOR | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
---
| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 October 2010 |
| DATE OF JUDGMENT: | 18 November 2010 |
| CASE MAY BE CITED AS: | Taylor v Woolworths Limited |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1646 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – neck injury – calculation of “without injury” earnings – whether pecuniary loss is “serious”.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S J Carson | Maurice Blackburn |
| For the Defendant | Mr P B Jens | Gadens Lawyers |
| HIS HONOUR: |
1 By way of Originating Motion dated 10 February 2010, David Taylor (“the plaintiff”) seeks leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, as amended (“the Act”), to bring common law proceedings to recover damages for injury to his neck (“the injury”) throughout the course of his employment, but in particular on 14 January 2003, with Woolworths Limited (“the defendant”).
2 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” and “pecuniary loss damages” within the meaning of s.134AB(37) of the Act.
3 The application was heard over one day and the following evidence was adduced:
(a) The plaintiff gave evidence and was cross-examined. (b) The plaintiff tendered the following material from his Court Book: (i) His affidavits, sworn 28 May 2009 and 23 March 2010, at pages 8- 16;
(ii) A summary of taxation documents, at page 29;
(iii) Medical reports –
ƒ from Dr Kelvin Mah dated 26 February 2008, 18 March 2008,
30 April 2010 and 6 October 2010, at pages 33-33;
ƒ from Associate Professor Gavin Davis, neurosurgeon, dated 20
March 2008 and 6 April 2010, at pages 34-44;
ƒ from Dr Clayton Thomas, consultant in rehabilitation and pain
medicine, dated 10 April 2008 and 19 April 2010, at pages 45-
52;
ƒ from Ms Carolyn Merritt, physiotherapist, dated 5 June 2008, at
pages 53-54;
ƒ from Dr Warren Boling, neurosurgeon, dated 16 March 2010, at
pages 55-60.(iv) report from Flexi Personnel dated 26 May 2010, at pages 61-71;
(v) x-ray of cervical spine dated 7 October 1995, at page 72;
(vi) CT scan of cervical spine dated 13 July 1999, at pages 72-74;
(vii) X-ray and CT scans of cervical spine dated 21 April 2005, at pages 75-76;
(viii) MRI of cervical spine dated 10 June 2005, at page 77;
(ix) X-ray cervical spine dated 13 November 2007, at page 78 (“Exhibit 1”);
(c) Claim form of worker, together with employer claim report (“Exhibit 2”).
Relevant Legal Principles
4 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act: see s.134AB(19)(a) of the Act.
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s.134AB(37) of the Act which reads:
“permanent serious impairment or loss of a body function; …”.
6 The part of the body said to be impaired for the purposes of paragraph (a) is the neck.
7 In order to succeed, the plaintiff must prove on the balance of probabilities
that:
(a)
“the injury” suffered by him arose out of or in the course of or due to the nature of his employment with the defendant on or after 20 October 1999: (see s.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph (11));
(b)
“the injury” and the resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”: (see Barwon Spinners (op.cit.) at paragraph [33]);
(c)
the “consequences” to the plaintiff of the neck impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible
impairments … be fairly described as more than significant or marked,
and as being at least very considerable” (my emphasis): (see
s.134AB(38)(b) and (c) of the Act.).
The test for “serious” is sometimes referred to as the “narrative test”.
8 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden (see s.134AB(19)(b) and (38)(e) of the Act) to establish:
(a) that as at the date of hearing he has a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act: (see s.134AB(38)(e)(i)); and (b) that after the date of the hearing he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more: (see s.134AB(38)(e)(ii) of the Act). 9 In determining the application, the Court:
(a)
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”: (see s.134AB(38)(h) of the Act);
(b)
must make the assessment of “serious injury” at the time the application is heard: (see s.134AB(38)(j) of the Act);
(c)
must give reasons which are extensive and complete as the Court will give on the trial of an action, and in so doing disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application: (see s.134AB of the Act and Church v Echuca Regional Health (2008) 20 VR 566 at paragraphs [89]-[92];
(d)
notes that s.134AB(38)(b) of the Act provides that the consequences of an injury and impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately.
In the event that a worker satisfies sub-paragraph (i) but not sub- paragraph (ii) of s.134AB(38)(b) of the Act, a worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering damages” only. A worker who satisfies the loss of earning capacity requirements of s.134AB is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”: (see Advanced Wire and Cable Pty Ltd v Abdulle [2009] VSCA 170, delivered on 28 July 2009, and in particular paragraphs [60]-[64]).
(e)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression or value judgment: (see Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]).
The Issues
10 Counsel for the defendant informed the Court that there was no issue that the plaintiff suffered a compensable neck injury on 4 January 2003 and that such injury was a cause of neck surgery undertaken by the plaintiff. Counsel for the defendant identified the issues as to be:
(a)
whether the “injury” was a “serious injury” given the “extensive pre- existing problems … both physical and emotional” suffered by the plaintiff prior to such injury. In this respect, counsel referred to the principles enunciated in Petkovski v Galletti [1994] 1 VR 436; and
(b)
if a serious injury, the issue is then whether the plaintiff could discharge his onus in satisfying the Court of the requisite loss of earning capacity: (See T 2, L1-7; T 8, L8-18.)
The Background of the Plaintiff, his Injury and Medical Treatment
11 The plaintiff adopted his affidavit sworn on 28 May 2009 (found at page 8 of Exhibit 1 and which I shall refer to as “the first affidavit”) and his affidavit sworn on 23 March 2010 (found at page 14 of Exhibit 1 and which I shall refer to as “the second affidavit”).
12 By way of his first affidavit, the plaintiff gave the following pertinent evidence:
• He is a fifty-nine-year-old (born on 19 January 1951) who left school after Year 10 and later obtained a Supply Management Diploma. • Prior to commencing work with the defendant, he worked generally in supply and logistic management for about thirty years. • In April 2002, he commenced employment with the defendant as a permanent part-time sales assistant working about 29 to 30 hours per week, approximately half of which was spent at the defendant’s South Preston Safeway liquor shop and the balance at the defendant’s petrol outlet. • He describes the work at the liquor shop as involving “frequent and heavy lifting of boxes of stock and also stocking of shelves” and the work at the petrol outlet as “relatively light”: (see paragraph 5.) • On Saturday, 4 January 2003, he was working at the liquor department by himself and was in the process of stocking the refrigerator. He describes the circumstances of “injury” in the following terms: “In order to keep the fridge shelves stocked I went into the cool room to get a 24-can carton of a pre-mixed drink. The cool room was generally cluttered and it was not possible to get a proper ladder in there to climb up to higher shelves or stacks. I was using a small step and had to reach up in order to get the carton. As I was in the process of reaching up to do this, the carton started to topple and I had to quickly move my head out of the way in order to avoid being struck. I felt an initial twinge of pain in the neck and shoulder area but was able to keep working. I picked up the fallen box and continued to re-stock the shelves of the fridge.”
(See paragraph 7.)
•
Over the next few days, he noticed stiffness and pain in his neck and also pain commenced to travel down his arms, causing him to consult his then general practitioner, Dr Lunn, at the North Eltham Medical Centre. He was treated with physiotherapy, Panadeine Forte, Voltaren and Nurofen gel for pain control, together with the use of a TENS machine.
•
He continued working with the defendant, performing light duties, re- stocking some shelves with smaller light items.
•
On 21 April 2005, he had plain x-rays taken of his neck which were said to show “degenerative changes in the discs of my neck”: (see paragraph 11.)
•
He was referred to the neurosurgeon, Mr Gavin Davis, who initially saw the plaintiff on 18 May 2005 and an MRI was arranged on 9 June 2005 which confirmed disc damage and degeneration in his neck.
•
He underwent an anterior cervical decompression and fusion on 18 January 2006 at the Cabrini Hospital.
•
He had three or four months off work after the surgery and, after a period of recuperation, “did not notice much, if any, improvement in the neck and shoulder pain and the hand and finger numbness remained”: (see paragraph 15.)
•
Mr Davis referred the plaintiff to the rehabilitation specialist, Dr Clayton Thomas, who initially saw the plaintiff on 6 June 2006, at which time he prescribed Norspan patches and Lyrica.
•
He returned to work at the petrol department of the defendant but found that he was “suffering increasing symptoms travelling into the arms and I was also having a bad reaction to medication, in that I was having hallucinations and felt quite unwell towards the end of 2006”: (see paragraph 17.) He was taken from the petrol department as he was not coping.
•
After his general practitioner, Dr Lunn, retired, he has continued to see Dr Kelvin Mah every two to three weeks.
•
He works 16 hours per week in the supermarket of the defendant, made up of an 8-hour shift on Monday and an 8-hour shift on Wednesday, during which time he makes sure that the correct price and identification tickets are in place on the supermarket shelves. His wages are “topped up” by WorkCover payments.
•
He continues to have “significant difficulties” with pain travelling from the neck/shoulder area down both arms, concentrating in the middle finger of each hand and also around the wrists and bases of the thumbs.
•
He has trouble holding things, has occasional spasms which are unpredictable and which also affects his memory and concentration.
•
Prior to his injury, he was a keen gardener, golfer, tennis player and also an ‘A grade’ snooker player, but he no longer plays snooker, golf or tennis and rarely carries out much gardening.
•
His medications include Tramal, Duragesic patches, Voltaren, Neurontin, Epilim, Panadeine Forte (two to three per day) and Temazepam. Occasionally, he applies Nurofen gel to the wrists and he also uses wrist splints on a regular basis.
13 In his second affidavit, the plaintiff gave the following evidence:
•
On being shown various neck and/or shoulder pain clinical notes from his general practitioner, he said that:
ƒ
he does not dispute entries in October and November 1995 in respect of right shoulder pain but cannot recall attending the doctor at that time or having an x-ray at that time.
ƒ
he has no recollection in relation to an entry in July 1996 when a clothes dryer fell on his neck, the wearing of a soft collar and believes that would be something he would remember if it did occur.
•
He does now recall having some neck pain and seeing his doctor in July 1999 and, in particular, states:
“I don’t believe there was any traumatic incident but do recall pain simply coming on for no apparent reason. I can recall having something like 4 or 5 visits to a physiotherapist. I believe that I may have had 3 or 4 days off work. I am told that I had a CT scan back in July 1999 and am able to now recall some sort of scan being done although I couldn’t be precise about that date or precisely what body part or parts were scanned.
My memory is otherwise that the pain passed reasonably quickly in 1999 and that I had some minor lingering pain after that occasion although do not remember that pain going on for more than a couple of months or so. This is the previous pain that I refer to in my WorkCover claim form.
Subsequent to 1999, I did have a particularly difficult time with my previous employer in that I suffered from considerable anxiety and depressive symptoms to the extent that I eventually left that employment. I do not have any recollection of the neck or shoulder being a problem for me during that period or indeed being a problem until I again hurt the neck and/or shoulder in January 2003.”
(See paragraphs 4, 5 and 6.)
•
In addition to his affidavit evidence, the plaintiff gave further evidence in support of his application that he has continued to work with the defendant two days a week, starting at 6.00 am and finishing at 2.30 pm with a half-hour lunch break (unpaid) and two 15-minute paid breaks for morning and afternoon tea.
•
When asked how he was coping with such work, the plaintiff gave the following evidence:
MR CARSON –
Q: “Mr Taylor, with those hours, that is the two days of 8 hours,how are you going with it? How are you coping with it?---
A: By the end of the day I’m pretty well physically exhausted, emotionally exhausted. The pain level increases during the day. I have to top up my normal medication with additional pain relief.
Q: The pain you have just mentioned to his Honour, could you be specific about that? Where is that pain that you are talking about?--- A: It’s down both arms and, as the doctor’s terminology is, it is referred pain which stops at both wrists. So it comes down here.”
(See T 11, L 5-13.)
• He presently uses the following medication:
ƒ Every morning he takes one Tramal of 150 milligrams; ƒ He wears Duragesic patches – which is a “morphine patch” –
which are changed every three days;ƒ Voltaren three times a day; ƒ Neurontin, two tablets twice a day (four tablets in all); ƒ Epilim, two tablets in the morning and two in the evening (four
tablets in all);ƒ
Panadeine Forte, the dosage of which varies from about two to four a day when he is not at work and up to eight a day when he is working;
ƒ Temazepam, approximately four nights a week to assist him
sleeping.
•
When asked as to his capacity to work more hours than he is presently working, the following evidence was given:
HIS HONOUR –
Q: “What do you say, Mr Taylor, about any suggestion that you can work more than two days a week that I now know about, the Monday and Wednesday from 6 to 2.30? What’s your view about that?---
A: At the end of each working day I am extremely exhausted.
According to my doctor, I can’t work any more.
Q: I’m more interested in what you think?---
A: I honestly don’t think I could take any more at all. Q: Because of, what, increased pain?---
A: Yes, that’s correct.
Q: And increased tiredness?---
A: Yes.”
(See T 15.)
14 The plaintiff was cross-examined and gave the following pertinent evidence:
•
Over the thirty years that he worked prior to commencing with the defendant, he worked with different employers but the last employer was Benver International, distributor of Sunraysia beverages, hardware and automotive products.
•
The plaintiff ceased working there because of conflict with his managing director and lack of support from a superior, and submitted a claim in relation to stress.
•
After some time, he sought alternative employment and gave the following evidence:
MR JENS –
Q: “Would you indicate to the Court, please why it is that you took
up employment for only 28 to 30 hours per week?---
A: That’s all that Woolworths would offer a part-time employer[sic]. Anything above that is considered overtime and that’s a no-no for management.
…
Q: Why was it that you didn’t look for alternative employment of a
full-time nature?---
A: I was during that period.” (See T 19, L 3-10.)
• His neck injury only occurred after the 4 January 2003 incident. •
Even after commencing with the defendant up to the date of injury, he was still seeking out full-time work.
•
The type of work he was seeking out was “middle management” work in logistics and supply.
•
The plaintiff accepted that the work with the defendant was heavier sort of work (particularly working in the liquor department) than his previous work in management.
•
The plaintiff was asked a series of questions in relation to the work he was performing with the defendant prior to this injury and his attitude to work since his surgery:
HIS HONOUR –
Q: “Was it an issue for you doing hands-on work when you
started work?---
A: No.
Q: Was there any physical reason or mental reason you couldn’t
do hands-on work at that stage?---
A: No.
Q: It was your desire to get back to management, in this case middle management, because that was something you had done over your working life pretty well up to that time?---
A: That’s correct, and another reason for going down a level …
Q: Was avoiding another retrenchment situation?---A: Work just 40 hours a week instead of 70 or 80.
Yes, I understand.”
MR JENS –
Q: “Since you have returned to work following your operation to your neck, now you say working 16 hours per week, have you continued to look for work in other areas?---
A: No.
Q: Is there any reason for that?---
A: Upon two years ago I stopped because of my age. I
continued to get knock-backs.
Q: So up to two years ago, that’s 2008 or thereabouts?---
A: Yes.
Q: You had been continuing to look for work in the middle
management area?---
A: Not as much as what I had after I left Benver, no.
…
Q: It was also your desire to seek to work in middle management where you could do non-physical work and take up full-time employment of a non-physical nature, I suggest?---
A: Well, I was actually looking for permanent part-time. That
would have been back about 30 hours.”
HIS HONOUR –
Q: “When were you looking for that again? When was the last
time you were looking for that?---
A: Two or three years ago was my last application?
Q: I’m not being silly about this, but I just have to have the
evidence before me. Why haven’t you continued to do that?--- A: After getting so many knockbacks and realising that the companies I was seeking employment were knocking me back because of my age and also because I have come from senior management and they are questioning why I wanted to go down into middle management. So it is a simple matter, ‘We have a 30-year old who can do middle management. Why employ a 60-year old’. Basically that’s what they were saying.
MR JENS –
Q: “With your experience in this area you thought that if you were
given a chance you could do that work?---
A: Middle management?---
Q: Yes?---
A: Yes.
Q: And this was after your operation in 2005, and between 2005 and 2008 you thought you would be able to work at that work if you find the job?---
A: The applications were very infrequent, because there just
wasn’t jobs around at that time.
Q: I want you to deal with my question though. If you could find
the job you thought you would be able to do it?---
A: At the hours that I wanted, yes. Q: And that be 30 hours a week in middle management?---
A: 25 to 30 hours, yes.” (See T 30-32.)
•
The plaintiff was seeking 30 hours middle management as he found even after 30 hours in the supermarket it was becoming physically too much for him.
•
In response to a series of questions about his ability to perform 30 hours of work a week in middle management:
HIS HONOUR –
Q: “But I don’t quite follow that. After the surgery you have never
got back to 29 or 30 with Woolworths, have you?---
A: Initially I tried.
Q: And you failed?---
A: I failed miserably, yes.
Q: I just want to make it clear in my mind for 2005 to 2008, when you were looking around for jobs as a middle manager, you thought 30 hours was your capacity, you could do 30 hours; is that what you are saying to the court?---
A: Well, I hadn’t actually tried it, but, yes, that’s what I was
looking for, yes.”
(See T 33, L 2-11.)
Further, the plaintiff stated:
HIS HONOUR –
Q: “So, post the surgery with Woolworths, is the 16 hours a week where you feel as though you can’t do much more than that: that’s correct?---
A: That’s correct, yes.
Q: On the other hand, you are telling the Court that from 2005, again post the injury, after the injury and after the surgery, from 2005 to 2008, you are looking for middle management positions – and I understand what you said about the difficulty of obtaining those – but you are looking for about 30 hours a week?---
A: Again, I was basically nibbling at the market, you know what I
mean. There was nothing there.
Q: But I just want to make clear that’s your evidence before the Court, is it, that you thought your Woollies work could only be about 16 hours but if you were in middle management you might be able to do 30 hours?---
A: I thought so, yes.”
(See T 34, L 1-11.)
•
The plaintiff was only seeking 30 hours per week during the time from 2005 to 2008 rather than full-time because of his neck injury.
•
In response to some questions from the Court, the plaintiff gave the following evidence in relation to his capacity for work:
HIS HONOUR –
Q: “In a middle management position, is that an office borne job,
where you sit in an office?---
A: Yes, totally different to senior. Senior management requires a
lot of interstate and overseas travel.
Q: No, I’m more talking about a middle management job. In
logistics are you required to use a computer?---
A: Yes.
Q: In fact a computer would be used a lot in logistics, would it, see what goods are available, what goods are in the warehouse, what goods are ready to go?---
A: Yes.
Q: And you would be looking at a computer a fair bit of the time?---
A: Probably 40 – no, not even that, 30 per cent of the job.
Q: Give me a rundown roughly what you would envisage a person doing 30 hours a week middle management in logistics; what would that involve?---
A: Maybe 5 or 6 hours on the computer. A lot of shop walk. In
other words …
Q: Store houses?---
A: Yes, getting out with the storemen and supervising, making
sure what they are doing.
Q: And scrambling over, up and down stores, this sort of thing?---
A: The occasional stock-take, yes.
Q: Any driving?---
A: Driving a forklift, yes.
Q: You would do that at middle management, would you, drivingthe forklift?---
A: I would assist if that was required, yes.
…
Q: How would you go looking at a computer [for] 6 hours?---
A: I can’t really do it at home without getting up and walking
around for a while.
Q: How would you go about sitting in an office for a period of time
with your injury?---
A: I would have to get up and walk around for a while.
Q: How would you go driving a forklift if you were required?---
A: I’m not sure.” (See T 36, L 1–T 37, L 3.)
15 In re-examination, the plaintiff gave the following pertinent evidence:
HIS HONOUR –
Q: “But what do you say as at today’s date whether you would apply for a job doing 30 hours a week in middle management? Is that something you could contemplate doing or is that something which would be beyond you? What do you say about that?--- A: I’m suggesting that would be beyond me because why I stopped in 2008, apart from those reasons that you mentioned, my medication with the patch has gone from about 70 to 170. Q: Your medication has increased since then?--- A: Yes.” MR JENS –
Q:
“Mr Taylor, just on that precise point, you have said in your earliest affidavit, and I will quote it to you, ‘I have also found that my memory and concentration have really suffered quite badly. I find it hard to apply myself to one task for very long. I also find that I now become easily frustrated.’ Just bearing that in mind, if you were magically transported next week into this middle management job and you could perhaps get this 30-hour job per week, how would you go?---
A: Again, I don’t think I would be able to do it now, no. Q:
I appreciate this is possibly being artificial, but do you think you might be able to cope with 10 hours or 20 hours or some other number or not at all?---
A: An arbitrary figure, probably up to 20, yes.” (See T 37, L 23-T 38, L 14.)
16 The plaintiff was also asked how the amount of medication would affect him in meetings and the following evidence was given:
HIS HONOUR –
Q:
“As a middle manager, from your experience when you have been in senior management, does that involve meetings with underlings and indeed meetings with superiors and discussions about forward planning and that type of thing?---
A: Yes, it would. Q: How do you think you would cope with doing that sort of thing with
the amount of drugs you take these days?---A: Not now.” (See T 39, L 2-8.)
17 I refer to the reports of the present treating general practitioner, Dr Kelvin Mah, dated 26 February 2008 (page 30 of Exhibit 1), 18 March 2010 (page 31 of Exhibit 1), 30 April 2010 (page 32 of Exhibit 1) and 6 October 2010 (page 33 of Exhibit 1).
18 Dr Mah is of the opinion that, as at October 2010, the plaintiff continues to have pain in his neck and pain referred to his wrist necessitating ongoing medication. Furthermore, he continues to be of the opinion that the incident on 4 January 2003 was a significant contributing factor to the aggravation of the pre-existing neck condition and that he was now limited to work no more than 16 hours per week with the defendant.
19 The previous general practitioner of the plaintiff, Dr David Lunn, referred the plaintiff to the neurosurgeon, Mr Gavin Davis, who initially consulted with the plaintiff on 26 May 2005. At that time, Mr Davis had available a CT scan and x-ray of the cervical spine performed on 21 April 2005 which he considered demonstrated some degenerative changes at the C5-6 and the C6-7 disc levels.
20 Mr Davis arranged for the plaintiff to undergo an MRI scan of the cervical spine on 9 June 2005 and, according to him, such imaging demonstrated severe degenerative disease at C5-6 and C6-7 which was most marked on the left at the C5-6 level and the right at the C6-7 level.
21 Mr Davis ultimately recommended surgery and, on 18 January 2006, the plaintiff underwent a C5-6 and C6-7 anterior cervical decompression and fusion which proceeded without complication.
22 Over the course of several reviews, the plaintiff complained of various symptoms and, on the last view on 19 April 2006, complained of numbness in the first and second digits to the right hand, although his shoulder pain had resolved. A repeat x-ray of the cervical spine performed that day demonstrated good alignment of the operated segments with no untoward findings. Mr Davis referred the plaintiff to the rehabilitation expert, Dr Clayton Thomas, at the Victorian Rehabilitation Centre.
23 I refer to the report of Mr Davis dated 20 March 2008 (at page 34 of Exhibit 1) where he states that the injury occurred during the course of the plaintiff’s employment with the defendant and that his capacity for work is diminished in that he needs to be restricted to light duties. He also notes that the plaintiff has demonstrated “a degree of chronicity to his neuropathic pain and therefore will require long-term medical management of his Chronic Pain Syndrome”. (See page 41 of Exhibit 1.)
24 Mr Davis was also forwarded various material in relation to x-rays and attendances in relation to neck pain obtained from the notes of Dr Lunn prior to the incident on 4 January 2003. Such material included x-rays of the cervical spine undertaken on 7 October 1995 and 13 July 1999, together with a CT scan of the cervical spine undertaken on the same date. He also had available the general practitioner’s medical records running from 7 September 1994 to 15 August 2006. In a report dated 6 April 2010 (see page 42 of Exhibit 1), Mr Davis states, in part:
“The new information from the latest reports confirms the patient indeed had progressive cervical spondylosis developing over a number of years, and that this indeed pre-dated the injury in 2003. However at the time of the injury in 2003, there is no evidence to suggest that the patient was symptomatic prior to the injury. Therefore it is reasonable to conclude that the injury exacerbated the cervical spondylosis at C5-6 and C6-7, even though degenerative changes were present prior to that date.”
25 Dr Clayton Thomas initially consulted with the plaintiff on 6 June 2006 and thereafter on 1 December 2006; 16 February 2007; 19 March 2007; 11 May 2007; 13 July 2007; 7 September 2007; 26 October 2007; 12 December 2007; 5 March 2008; 11 February 2009; and, finally, on 20 May 2009.
26 When seen initially on 6 June 2006, Dr Clayton Thomas was of the opinion the plaintiff was suffering neuropathic pain relating to the previous right C6 nerve root following the decompression surgery. He referred him to the Dorset Rehabilitation Centre and, on review in late 2006 and early 2007, it was necessary to change around his various medications because of side effects.
27 When reviewed on 11 May 2007, Dr Clayton Thomas noted that the myoclonic jerks were increasingly problematic and had led to the development of some lower back pain. At that stage, he was working 10 hours per week putting tickets up on shelves with the defendant.
28 He was seen on several occasions throughout 2007 and, as at 5 March 2008, Dr Clayton Thomas considered that his condition had “really plateaued” and he was working 12 hours a week although he felt he could work perhaps up to 16 hours per week doing very light duties.
29 In a report dated 10 April 2008 (see page 45 of Exhibit 1), Dr Clayton Thomas expressed the opinion that the plaintiff has a “high degree of incapacity and I believe he is doing very well to remain at work on the limited duties that he continues to perform”.
30 Throughout his reviews in late 2008 and up to his final examination on 20 May 2009, Dr Clayton Thomas again changed around various medications because of ongoing side effects.
31 In his last report (see page 50 of Exhibit 1), Dr Clayton Thomas states:
“The review of the material that he has sent to me do not alter my opinion on him. He has pain arising from the cervical spine at C5/C6 and C6/C7 leading to the surgical intervention.
The event that took place at work on the 4th January 2003 was a significant event and led to the neck becoming increasingly symptomatic and therefore aggravated the pre existing problem.
I have only ever seen Mr Taylor in the post operative setting. I did not know him prior to his operation. Accepting that he had evidence of radiculopathy involving his right arm, and accepting that this came on after that event, the surgical intervention was therefore related to this aggravation of his neck injury.
Mr Taylor has work capacity. The use of the outstretched arms aggravates the neck injury. The less physical the work that he performs, the more work that he can perform on an hourly basis.
He is able to work eight hours twice per week. In my opinion, he could work eight hours per day, three times per week performing his current duties. If he is in a purely sedentary position and if the position was ergonomically totally set up for him, then his hours at work could be spread over five days work in the vicinity of six hours per day.” (at page 53)
32 I note that Ms Carolyn Merritt, physiotherapist, has supplied a report dated 5 June 2008 (page 53 of Exhibit 1). Seemingly, she was of the opinion that when consulting with the plaintiff in late 2007 and early 2008, he was performing 16 hours’ light duties per week and Ms Merritt was of the opinion that the plaintiff would be “unlikely to be fit for increased duties in the future”.
Medico-Legal Reports
33 The solicitors for the plaintiff arranged for the plaintiff to be medico-legally examined on 16 March 2010 by Dr Warren Boling, a consultant neurosurgeon and spinal surgeon. In a report of the same date (see page 55 of Exhibit 1), Dr Boling states, in part:
“In my opinion, David Taylor suffers from the following:
1. Numbness and paraesthesia in bilateral upper extremities due to
nerve root dysfunction and nerve root compression.
2. Neck and shoulder pain due to cervical disc disease and a prolapse
at C5/6 and C6/7. This resolved postoperatively.
In my opinion, the event described by David Taylor on the 4th January 2003 occurred while working at the Woolworth Supermarket, could reasonably have been an inciting event causing the disc prolapse and nerve root compression of the cervical spine.
In my opinion, the patient’s pain and bilateral arms and numbness in the thumb and first two fingers bilaterally could reasonably be related to a neuropathic type pain, or due to persistent or recurrent nerve root compression postoperatively.
David Taylor suffers from a number of serious consequences as a result of his work-related neck and shoulder pain injury. These are summarised as follows:
1. Social. He says he socialises much less due to pain and side effects of medication. He says he is unable to engage in activities that he previously enjoyed such as golf, tennis, competitive snooker. He says he is unable to clean the house or care for his lawn or garden.
2. Employment. He says he is unable to increase his work beyond his current 16 hours per week. He says that the cognitive side effects of his medication have severely impaired his ability to do more than his current job restriction and specifically, will not allow him to return to managerial or consulting work which he did previously.
…
His prognosis is relatively poor for ability to work longer hours or to be promoted to a higher level occupation. Vigorous activities will exacerbate his pain and the medication side effects that are doing a reasonable job of controlling his pain, are causing significant side effects to his memory and cognition. His postoperative spinal CT scan shows persisting nerve root compression due to foraminal stenosis.”
34 The plaintiff also relies on a report from Flexi Personnel dated 26 May 2010 authored by a Human Resources consultant, Ms Mary Oliver (see page 61 of Exhibit 1). Ms Oliver is of the opinion that, if he were to lose his current light duty employment with the defendant, the prospects of him finding other suitable employment or being re-trained in any alternative vocation are minimal.
Analysis of the Evidence
35 I have found the plaintiff to be a frank and truthful witness. I note that in his first affidavit, the plaintiff made no reference to any earlier neck symptoms or radiological studies. When shown such records by his solicitors, the plaintiff recalled some of these events but not all. For example, he has no recall of wearing a soft collar or a clothes dryer falling on his neck. If such events did occur, his failure to recall such matters I consider to be far more likely explained by the “significant side effects to his memory and cognition” (see report of Dr Boling) brought about by his medication rather than any dissembling on the part of the plaintiff.
36 During the course of his evidence, I came to the view that, on occasions, he could not grasp adequately an otherwise simple question which again I consider was a consequence of what can only be described as an enormous amount of medication. Sometimes, the answers of the plaintiff were against his self-interest which causes me to have greater confidence in accepting his evidence in relation to pain, limitations and work capacity.
37 I find that on 4 January 2003, the plaintiff suffered a neck injury arising out of or in the course of his employment with the defendant and that the nature of such neck injury was the aggravation or exacerbation of cervical spondylosis at C5-6 and C6-7. All doctors are of such a view.
38 Although the plaintiff had neck symptoms prior to his work incident, such symptoms had been quiescent for a period of time and the plaintiff had demonstrated his capacity to perform the work with the defendant and, indeed, throughout the period of time up to his injury, was investigating full- time work as a middle manager in logistics and supply. On all the evidence, the compensable injury was a cause of the need for the plaintiff to undergo a C5-6 and C6-7 anterior cervical decompression and fusion.
39 I find, based on the medical evidence, that the plaintiff suffers a permanent impairment of his neck as a result of “the injury”. Such impairment has resulted in both pain and suffering consequences and pecuniary loss consequences. In particular, the plaintiff suffers restrictions of movement, together with pain in his neck and arms which restricts him in many activities including many recreational pursuits. I am satisfied the consequences to the plaintiff of his neck impairment in relation to “pain and suffering” and/or “loss of earning capacity”, “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked and as being at least very considerable”.
40 If one applies the test set out in Petkovski v Galletti (op.cit.), I am satisfied that the extent of any aggravation or exacerbation of his pre-existing neck injury have brought about consequences which satisfy the narrative test. As I would understand the position of the defendant, so much is not disputed.
41 The next issue is whether the plaintiff has also discharged his onus in satisfying s.134AB(38)(e) of the Act.
42 Paragraph (e)(i) requires the plaintiff to establish that, as at the date of the hearing of the application, he “has a loss of earning capacity … of 40 per cent or more” measured “as set out in (f)”. The measurement of the claimed loss of earning capacity, as prescribed by paragraph (f), necessitates a comparison of two matters:
(a) the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and (b) the income that the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity had the injury not occurred” (“without injury earnings”). In both cases, the income is limited to gross income for personal exertion and is to be annualised.
43 Paragraph (e)(ii) requires the plaintiff to establish that he will, after the date of the hearing, “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.
44 It is submitted on behalf of the plaintiff that any “without injury earnings” should be based on what the plaintiff would have been earning if employed as a middle manager in logistics and supply. In this respect, the evidence of the plaintiff is that he was seeking such full-time work when he obtained the job with the defendant and continued to look for such work up until the time that he suffered injury on 4 January 2003. In this sense, counsel for the plaintiff relies on the words “was capable of earning” in assessing the “without injury earnings”. As a fall-back position, counsel for the plaintiff submits that the “without injury earnings” should be based on the 28 to 30 hours that the plaintiff was working with the defendant up to the date of his injury.
45 Counsel for the defendant submits that the “without injury earnings” should be clearly based on what he was earning with the defendant as this actually demonstrates his earnings and, indeed, the choice of such hours effectively was a conscious choice to perform non-stressful work after the stresses arising from his employment with Benver International, the previous employer of the plaintiff. I find that the plaintiff did leave Benver after difficulties with his managing director and others in higher management, causing him to be treated for stress for a period of time. However, I consider that it was likely that the plaintiff was looking for middle management work in the logistics and supply area given that:
(a) for the last 30 odd years he had been employed in that type of work; (b) that he did not wish to pursue higher management work as he had performed that in the past and felt that he had been put off “when his job was done”; and (c) such middle management work would probably not be as stressful as higher management work. 46 Accordingly, and bearing in mind the words “as most fairly reflects”, I find that the plaintiff, as at the date of his injury, had a capacity and was seeking to exercise that capacity in full-time middle management work in the logistics and supply area. It is to be noted that he could only work 28 to 30 hours with the defendant because, beyond that number of hours, he was considered to be working “overtime” which was not acceptable to the defendant.
47 In relation to his “after injury earnings”, I find that the plaintiff’s capacity for employment is limited to working two days a week with the defendant performing the light ticketing work. In this respect, I adopt the opinions of Dr Boling, who examined the plaintiff on 16 March 2010. Under cross- examination, the plaintiff freely conceded that during the period from 2005 to 2008, he was “nibbling at the market”, investigating obtaining work for 30 hours per week as a middle manager in the logistics and supply area. Such activity came to an end in 2008 when the plaintiff considered that his age and putative employers’ suspicion about his previous higher management experience were working against him.
48 However, when queried as to whether he could cope with that type of work – using a computer 30 per cent of the time, driving a forklift on occasion, stocktaking, holding various meetings and conversations with workmen – the plaintiff doubted whether he could engage in such activities. Having observed the plaintiff, and bearing in mind the amount of medication that he is taking, I have little doubt that the plaintiff would be totally incapable of performing a middle management role as at today’s date or into the foreseeable future. Again, I note the opinion of Dr Boling:
“His prognosis is relatively poor for ability to work longer hours or to be promoted to a higher level occupation. Vigorous activities will exacerbate his pain and the medication side effects that are doing a reasonable job of controlling his pain, are causing significant side effects to his memory and cognition.”
49 To the extent that the opinion of Dr Clayton Thomas is different to this, I reject it.
50 Accordingly, I am of the view that the “without injury earnings” of the plaintiff should be based on full-time middle management logistic and supply work and that the “after injury earnings” of the plaintiff should be based on him working 16 hours per week with the defendant. In this broad sense, I am satisfied, as a matter of probability, that his currently weekly earnings are less than 60 per cent of his “without injury earnings” as a full-time middle manager and accordingly, he satisfies s.134AB(38)(e)(i) of the Act. Furthermore, I am satisfied that pursuant to s.134AB(38)(e)(ii) of the Act, that after the date of the hearing the plaintiff will “continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more”.
51 I refer to Exhibit 2, and in particular the employer claim report which details that, as at January 2003, the plaintiff was working 29 hours a week at a rate of $14.0868 per hour with a pre-injury average earnings of $408.52, together with a regular weekly shift allowance of $58.11.
52 Accordingly, the weekly earnings of the plaintiff as at that time were in the order of $466, or approximately $24,232 per annum. Although the evidence is clear that the plaintiff now works 16 hours per week with the defendant, there is no evidence as to his actual present earnings. However, if one assumes that the hourly rate increased by 15 per cent over the years from 2000 to date, his current annualised earnings would be in the order of $15,374. Such amount represents the sum of $24,232 increased by 15 per cent ($27,867) representing the increase in weekly rate from 2003 to now and then obtaining 16/29 of such sum, representing the 16 hours now worked compared to the 29 hours worked in 2003.
53 Again, although there is no direct evidence as to what a full-time middle manager would have earned within three years of the injury, I do note that the earnings of the plaintiff for the year ending 30 June 2001, presumably when employed by Benver International, amount to $53,110. Even allowing that such work was in senior management, I am satisfied that 60 per cent of any “without injury earnings” figure for a middle management position as at 2006 (being three years after the injury) would be substantially more than his current earnings calculated to be $15,374.00
Conclusion
54 Accordingly, I grant leave to the plaintiff pursuant to s.134AB(16)(b) of the Act to bring common law proceedings in relation to pain and suffering and pecuniary loss.
55 I shall hear the parties on the question of costs.
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