Teikamata v Victorian WorkCover Authority
[2020] VCC 1545
•2 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03652
| TANGIANAU TEIKAMATA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 August 2020 | |
DATE OF JUDGMENT: | 2 October 2020 | |
CASE MAY BE CITED AS: | Teikamata v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1545 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – loss of function of the right knee – pain and suffering – loss of earning capacity – paragraph (a) of the definition of “serious injury” – relevance of Medical Panel opinion – rehabilitation and retraining – relevant principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited:Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Richter v Driscoll [2016] VSCA 142; Cardiff Corporation v Hall [1911] 1 KB 1009
Judgment:Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards QC with Mr S Dawson | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr D Churilov | Russell Kennedy Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff on 17 May 2016 (“the accident”), while employed as a butcher and meatworker by Hammond Australia Pty Ltd (“the employer”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering as well as loss of earning capacity.
3 The impairment of body function relied upon is the right knee. It is not in dispute that the pain and suffering consequences of the plaintiff’s right knee injury satisfy the narrative test for a serious injury. Similarly, it is not in dispute that the plaintiff is unable to return to his pre-injury duties.
4 It was agreed by the parties that the Court was bound by the Opinion of a Medical Panel dated 6 April 2020.[1] The Opinion of the Medical Panel will be referred to in greater detail below.
[1]Section 313(4) of the Act
5 At the commencement of the hearing, there was argument concerning whether the Opinion of the Medical Panel had decided all issues between the parties. Counsel for the plaintiff argued that the Opinion of the Medical Panel had decided all of the issues between the parties. Counsel for the defendant argued that the Medical Panel had not been referred a question concerning what effect rehabilitation and retraining might have upon the plaintiff’s capacity for suitable employment in the future and therefore, had not provided an opinion on this issue. In relation to this argument, I ruled in favour of the defendant.
6 Given this, the only issue which was argued before this Court was what effect rehabilitation and retraining would have on the plaintiff’s capacity for suitable employment in the future.
Relevant legal principles
7 The application for leave to bring proceedings for damages is brought pursuant to paragraph (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act, namely:
“serious injury means—
(a) permanent serious impairment or loss of a body function.”
8 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury”, by s5 of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment on or after 1 July 2014. As set out in s325(1) of the Act, the impairment of the body function must be permanent.
9 The plaintiff has the burden of proof on the application. The standard of proof is on the balance of probabilities.
10 By s325(2)(c) of the Act, it is the “consequences” of the physical impairment which produce the “pain and suffering” or “loss of earning capacity” which must be “serious” – that is, if the plaintiff is to succeed in his claim relating to the function of the right lower limb, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of that body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative test”. It has been held that this task is largely a question of impression or value judgment.[2]
[2]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
11 Sections 325(e) and (f) set out the statutory formula by which the Court must measure the plaintiff’s loss of earning capacity prior to any grant of leave. This formula provides that the plaintiff must establish a loss of earning capacity of 40 per cent or more, as measured in accordance with s325(f) of the Act.
12 In determining the application, the Court:
(a)must assess whether the injury is a “serious injury” as at the time the application is heard;[3]
(b)must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[4]
[3]Section 325(2)(j) of the Act
[4]See generally Hunter v Transport Accident Commission & Avalanche [2005] VSCA 1 at paragraphs [23]-[26]
13 Section 325 (g) of the Act provides that in order to establish a requisite loss of earning capacity under the Act, the plaintiff must demonstrate that he would still suffer a loss of earning capacity of 40 per cent or more, even if he underwent appropriate rehabilitation or retraining.
14 Section 325(2)(h) of the Act requires me to disregard all psychological or psychiatric consequences in determining an application which relates to the physical impairment.
15 By s325(2)(b) of the Act, in determining the seriousness of the “consequences”, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the “consequences” of the physical impairment or the mental or behavioural disturbance or disorder arising from the injury the subject of this application, and the range of possible physical impairments or mental or behavioural disturbances or disorders.
16 In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor.[6]
[5](2005) 14 VR 622
[6](2006) 14 VR 602
17 The plaintiff relied upon two affidavits, gave viva voce evidence and was cross-examined. In addition, both parties relied upon medical reports and other materials which were contained in the Court Books.[7] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[7]The Plaintiff’s Court Book was marked as exhibit (“Ex”) P1. The Defendant’s Court Book was marked as Ex D1
The Plaintiff’s background
18 The plaintiff was born in October 1978 in the Cook Islands. He is presently forty-one years old. He is right-hand dominant.[8] He lives with his wife and their seven children. The youngest child is six years old, and the oldest child is nineteen years old.[9]
[8]Ex P1, p11
[9]Ex P1, p12
19 The plaintiff completed his high schooling up until the end of Year 10 in the Cook Islands. He was about sixteen when he left school, after which he obtained work as a panel-beater for about a year or so.[10]
[10]Ex P1, p12
20 In about 1995, when he was about seventeen years old, he migrated to Australia permanently. In Australia, he initially obtained work as a machine operator for a short period. He then obtained work in the meat industry, initially working in the export industry. This was a full-time role in smallgoods. He began working with the employer as a butcher in about 2003. In November 2006, he was promoted to the role of supervisor.[11]
[11]Ex P1, p12
21 The plaintiff undertook general butchering duties including cleaning and trimming of meat carcases, lifting heavy boxes of meat and meat carcases, manoeuvring and pushing heavy meat carcases in and out of a truck, administration, including taking orders, delivering meat to customers across Melbourne in a truck, and supervision of other workers.[12]
[12]Ex P1, pp12-13
22 The plaintiff’s duties required him to be standing for long periods of time, to be able to walk freely and to be able to bend his knees to carry heavy weights.[13]
[13]Ex P1, p13
Prior injury
23 Before he sustained the injuries the subject of this application, the plaintiff considered himself to be a healthy man. He was working full time in a job that he enjoyed, and not taking regular medication. He was very active.[14]
[14]Ex P1, p18
24 In May 2015, he was ice-skating with his children when he fell and felt pain in his right ankle and knee. He saw his treating general practitioner, who gave him a referral to undergo an x‑ray of his ankle and knee. He understands that the results were normal. At the time he thought that he had sprained his ankle. He rested his leg using crutches for a few days, iced his ankle, and took Panadol. Within a few weeks the sprain had resolved.[15]
[15]Ex P1, pp17-18
25 The plaintiff did not require any time off work or further treatment as a result of this injury. As of 17 May 2016, he had fully recovered and was having no problems with his right knee.[16]
[16]Ex P1, p18
The accident
26 The plaintiff described the accident in the following way:
“On or about 17 May 2016, I was assisting with the unloading of sheep carcasses at the loading bay. I was hit by a heavy carcass from behind when I fell and hit my right knee. I immediately felt pain in my right knee.
The next day I went to see my treating GP clinic because I was having difficulty with pain, swelling and a range of motion. I was given a referral to undergo an MRI of my right knee and a prescription for an anti-inflammatory, Celebrex capsules (200mg). My treating GP also certified me as unfit for any duties for the next three days.
On 19 May 2016 I underwent the MRI of my right knee. I understand that the results showed abnormalities consistent with recent injury including a displaced medial meniscal flap tear, a medial collateral ligament sprain and joint effusion ...
I returned to work after this on modified duties. I was on crutches at work to assist me to mobilise and walk. I had to take medication at work every day as I was struggling with discomfort and pain. When I ran out of Celebrex, I took over-the-counter medication.
In late June 2016 I lodged a WorkCover claim which was accepted.
I first saw orthopaedic surgeon Mr Cameron Fary on 4 July 2016. He said that his recommendation was for me to undergo a right knee arthroscopy. I followed his advice ...
After surgery, I engaged in physiotherapy with Mr James Woo[l]dridge. I also continued to engage with Mr Fay for follow-up and review.
On 21 November 2016, I returned to work on modified duties and hours ...
Over the next three or so months, I tried to increase my hours to four or five days per week on a handful of occasions but struggled with this workload. For the majority of these three months, I believe that I worked 15 hours per week in modified duties.
After my surgery, I was never able to return to my pre-injury hours or duties.”[17]
[17]Ex P1, pp13-15
27 On 16 December 2016, the plaintiff underwent a cortisone injection into his right knee which provided him with some temporary relief.[18]
[18]Ex P1, p15
Evidence concerning the consequences of the injury
28 As set out above, the plaintiff swore two affidavits, the first on 7 February 2019 and the second on 4 August 2020.
29 In summary, the evidence the plaintiff gave which is relevant to the issues in dispute between the parties at this hearing, was as follows:
(a)he continues to experience discomfort and pain in his right knee on a daily basis. At times he experiences some weakness in his right knee which gives way. On occasion he experiences some swelling and clicking noises in his right knee.[19] Since 2019, he does not feel like there has been any improvement in the symptoms in his right knee. If anything, the pain has become worse;[20]
[19]Ex P1, p18
[20]Ex P1, p228
(b)he tends to wear a brace on his right knee most of the time because this helps his knee stability;[21]
[21]Ex P1, p18
(c)he is restricted in his ability to mobilise because of his right knee pain. He finds that walking up stairs or on uneven surfaces is difficult. He tries to avoid uneven surfaces and stairs as much as practically possible;[22]
[22]Ex P1, p18
(d)he finds that running, bending and kicking a ball exacerbates his right knee pain. He avoids these activities as much as he can;[23]
[23]Ex P1, p19
(e)he finds that prolonged standing and walking exacerbates his knee pain. His tolerances vary from day to day, but he finds that after 30 to 60 minutes he experiences increased discomfort and pain;[24]
[24]Ex P1, p19
(f)he finds that sitting for more than an hour causes his knee to become stiff and uncomfortable, and he needs to move positions;[25]
[25]Ex P1, p19
(g)postures which require him to bend his knee, such as squatting or kneeling, tend to make his right knee pain worse. He avoids these postures as much as possible;[26]
[26]Ex P1, p19
(h)lifting and carrying heavy things makes his right knee pain worse. Because sitting can exacerbate his knee pain, he finds prolonged driving difficult. He finds using his right knee to drive and holding it in a bent position to accelerate and decelerate is difficult. He finds that he is uncomfortable and in pain after driving for a couple of hours. He would struggle to do a job that required him to drive all day, because he would need to take regular breaks to stretch his knee;[27]
[27]Ex P1, p19
(i)he believes that he would struggle to do a physical or manual labour job, or a job that required him to sit or stand for prolonged periods;[28]
[28]Ex P1, p23
(j)the pain in his knee affects his ability to fall asleep and at times wakes him up from sleep, particularly if he has been on his feet for extended periods during the day. He is also unable to sleep on his right side, as it puts too much pressure on his knee;[29]
[29]Ex P1, p229
(k)in or around October 2019, with the help of an occupational rehabilitation provider, he was able to secure casual work as a security guard at “The Highways” restaurant (a pokies and TAB venue) in Noble Park. As part of the application process, he made full disclosure about his injuries and his employer was prepared to give him a chance. His shifts have varied since he started, but up to the COVID-19 lockdown he was typically working from 6.00pm till about 1.30am on Friday and Saturday nights. Now, because of COVID-19, the hotel is closed and he is not working;[30]
[30]Ex P1, p230
(l)his role was in crowd control. His duties theoretically included checking patrons’ IDs, making sure customers were not too drunk to come into the venue, and if they did become too drunk, evicting them from the hotel. He was also supposed to do an “external patrol” every two hours, patrolling the car park and the hotel surrounds. In reality, he largely stood at the hotel entrance and checked IDs, and his two colleagues did the more physical aspects of the role. Although he was supposed to stand for the duration of his shift, his boss gave him permission to lean against the wall, which he did for the majority of his shift. Unfortunately, standing for that long, even leaning against the wall, aggravated the pain in his knee. He was just so happy to have the work, that he “pushed through”. He felt very lucky to have such a supportive employer and workmates;[31]
[31]Ex P1, p230
(m)he has been told that there is a suggestion that with further training he could perform the role of an alarm, security, or surveillance monitor in a control room (“control-room work”);[32]
[32]Ex P1, p230
(n)in or around 2018, he completed Certificate II and Certificate III in Security Operations despite struggling to complete them due to his pain and concentration levels. He completed these courses as he did not believe that he would be in a position to return to his pre-injury employment due to his injuries;[33]
[33]Ex P1, p231
(o)it is his understanding that he would need to complete further training to meet the eligibility criteria to perform control-room work. He has concerns about his ability to undertake the relevant training. If he were able to complete the training, he has concerns about his capacity to undertake the work itself;[34]
[34]Ex P1, p231
(p)he has been told that the course required for the control-room work is run over a number of weeks. He worries that he would struggle to concentrate for extended periods of time. Nowadays he has difficulty focusing, due to his pain and his lack of sleep. He also has difficulty retaining new or lots of information;[35]
[35]Ex P1, p231
(q)he would also be unable to sit at a desk or in front of a computer for prolonged periods of time. He would need to get up and walk around to change position and ease the pain and stiffness in his knee;[36]
[36]Ex P1, p231
(r)as he understands it, he would also need to hold a first aid certificate. He has previously done first aid courses and recalls that they involve demonstrating particular techniques in order to pass the course. He would have difficulty kneeling down to demonstrate his ability to render CPR or other assistance to an individual on the ground. Further, he assumes that if he is required to hold a first aid certificate, then he would be expected to administer first aid when necessary. He has grave concerns about his ability to safely administer first aid or other assistance given his injuries;[37]
[37]Ex P1, p231
(s)he has only very basic computer skills. He can and has used a computer to send and receive a basic email, and he has previously typed out invoices using Word and Excel; however, most of the administration work he has been required to do in his previous jobs has been handwritten. His typing skills are extremely lacking. He typically types using just his right index finger. He does not believe that even with further computer training, he would be able to improve his typing speed quickly enough to properly perform any role requiring efficient keyboard use;[38]
[38]Ex P1, p231
(t)if he surpassed the problems set out above and were to qualify for the role, he would have the following concerns about his ability to perform the job:
(i) he would not have the skillset or the efficiency to perform anything but basic computer-based work;
(ii) he would need to sit and stand from time to time so any monitors would need to be able to be viewed from both a sitting and standing position;
(iii) he does not believe he could be relied upon to provide a high level of concentration to the task, or a sharp eye for detail. His pain is distracting, and he almost always feels fatigued, given the limited sleep he now has. He would struggle to stay alert. From time to time he also suffers from episodes of high anxiety, during which time he would struggle to give his full focus to his role;
(iv) if there was a requirement to perform a foot patrol he would be unable to walk very far, and would have difficulty if there were stairs he needed to climb or descend, or if there was uneven ground he needed to walk on. Further, if he observed a critical incident during a patrol, he does not believe he has the capacity to physically respond;
(v) if he needed to provide remote access to a building, to respond to an incident, an alarm, or if the building management or emergency services asked him to do something, he would have concerns about his ability to follow instructions in a timely fashion or to move with speed. He also does not believe he could be relied upon to take control in an emergency situation – again, as he doubts his ability to lead by moving with speed.[39]
[39]Ex P1, p232
30 Under cross-examination, the plaintiff gave the following relevant evidence:
(a)he completed his Certificate II and Certificate III in Security Operations in about March 2018;[40]
[40]T28, L23-31
(b)the two Certificates were one combined course;[41]
[41]T29, L8-9
(c)attendance at the course was in person, in Dandenong, five full days per week for three months;[42]
[42]T29, L17-25
(d)the course involved a component of CPR and first aid. He did not have to kneel down on the ground to perform CPR on the dummy “No, they put the dummy for me on a table … there was no kneeling. I did it on the table;”[43]
[43]TT32-33
(e)the course also involved a self-defence component, where the participants had to demonstrate an ability to stop or block kicks or movements coming from a dummy;[44]
[44]TT33-34
(f)he also had to do a component that involved demonstrating being a bodyguard in the city. He agreed that there was a practical component involved in this part of the course, but said: “But when I did [the bodyguard component], I was the driver, so I wasn’t doing any running. I was sitting in the car, waiting. I was the driver;”[45]
[45]T35, L1-14
(g)during the classroom-based part of the course, he was able to sit down and stand up as required, and learn and listen. He was asked whether or not he was able to concentrate on what was being taught, to which he replied: “Sometimes, yeah, I was concentrating, some I wasn’t;”[46]
[46]TT37-38
(h)he agreed he was able to complete the course, to listen, to understand it and reflect on it, and then complete that component of the course successfully;[47]
[47]T38, L5-8
(i)he said that the people who ran the course made some modifications to the course to help him cope with it;[48]
[48]T38, L13-23
(j)he said that the Certificate III which he has completed is for an unarmed security guard. He said that if he had wanted to be an armed guard, he would have had to do an additional module;[49]
[49]T40, L4-11
(k)he said that he had not actually finished his Certificate III course;[50]
[50]T40, L20-27
(l)he disagreed that the course that he had done allowed him to monitor a screen as a security guard. He said that he would need to do a different module specifically for control-room work. He said he had not made any enquiries about what this would involve;[51]
[51]T41, L2-15
(m)he said that he can sit down, but his knee plays up and he needs to stand up. It was put to him that he could then sit back down again, to which he replied: “That’s correct, yes;”[52]
[52]T43, L4-9
(n)he said that he is unable to kneel or squat. He said that his use of stairs relies entirely on holding onto a handrail “not walking up the stairs … by myself. I need to hold on;”[53]
[53]T43, L12-18
(o)he worked at “Highways” from October 2019 to March 2020. During that time he had some time off due to family commitments. He was working a total of fifteen hours, made up of two shifts of seven-and-a-half hours’ duration. He agreed that these were consecutive shifts;[54]
[54]TT43-44
(p)he agreed that every two hours he would do either an internal patrol of 300 metres or an external patrol of 500 metres around the venue. He said these took place at different times. He thought that this might happen about three times on a shift;[55]
[55]TT45-46
(q)he agreed that he had been involved in handling “troublemakers” at the venue. He said that his personal physical interaction with these people had been stopping them at the door if they were coming in. When asked what would happen if he needed to remove someone from the venue who was making trouble, he replied “I just call my backup”;[56]
[56]T47, L1-16
(r)he denied being physically involved in evicting any patron. He said:
“… talking to them … I was asking them nicely to leave the premises … I don’t physically touch them, sir. I just talk to them, ask them nicely to move … My other bodyguard, my other security, my backups mostly do the removal … .”[57]
[57]TT47-48
(s)he denied that he had worked at the venue for five months. He said that he had worked there for three months. He said that he and his family had travelled back to his wife’s home because her father had died. He said he did not resume work at the venue until the end of February 2020;[58]
[58]TT48-49
(t)he confirmed that in his three months at “Highways,” he was not physically involved in removing any patron from the premises: “I didn’t do that because they knew of my situation of my right knee;”[59]
[59]T49, L19-29
(u)he could not recall telling Dr Middleton that his sitting was “generally okay”. He accepted that if the doctor had recorded particular matters, then he is likely to have told the doctor those things at that time. He could not recall telling the doctor that on good days he was able to stand for sixty minutes, on poor days his standing tolerance was thirty minutes, and that on a good day he could walk 2 kilometres, taking forty-five minutes, but on a poor day, one kilometre, taking thirty minutes: “I can’t recall. Probably I did. I can’t remember;”[60]
[60]TT51-52
(v)when asked further about his ability to sit down, he replied:
“… sitting down is not a problem. The problem is when my knee plays up, the knee pain plays up, I’m standing up. So you can tell I can sit down, I can sit down. But when my knee kicks in, I have to stand up.”
He was asked whether, when he stands up when the pain is bad, if, after a while, he is able to sit back down again and sit for a period of time. To this, he replied, “Yeah. Not for a long period of time;”[61]
[61]TT54-55
(w)he said that he can sit for up to an hour, but after that he has to get up. He said he needs to stretch his leg for about ten minutes. He agreed that when he sits back down after that, he can keep going, alternating sitting and standing.[62] He later said that his knee “plays up” when he is sitting down too long: “My knee plays up … Once I sit for a long time, everything plays up for me;”[63]
[62]T55, L6-18
[63]TT65-66
(x)he was pressed in relation to the conclusions as to his capacity set out in Dr Middleton’s report. Initially he agreed that between December 2019 and the date of the hearing, there had not been much change in terms of his tolerances. When pressed further, he said: “To be honest … just [a] lot of things coming in my head … I don’t even know … what you just said before. I’m getting confused;”[64]
[64]T56, L1-16
(y)he thought that the module for training him to perform control-room work takes “a couple of weeks”. He agreed that he was not in a position to dispute the training is only four days’ long;[65]
[65]T58, L2-28
(z)he was taken to the fact that he had deposed in his second affidavit to concerns about his ability to complete the relevant training. He agreed that he did not know what was involved in the training.[66] When asked why he had concerns about what was involved in the training, he replied:
[66]T59, L3-10
“…the people that took … my training … they check my resume, I’ve done security guard before and they’ve used that against me to get me a job in security without them realising I had some injuries on my right knee;”[67]
[67]T59, L11-18
(aa)he agreed that he was not in a position to tell the Court that he could not complete the training because he did not know what was involved in that training. He said he would do it if he was able to;[68]
[68]T59, L19-20
(bb)he agreed that he had been able to complete a three-month full-time course and concentrate, despite whatever pain he had felt at that time. It was suggested to him that he was able to do this despite any lack of sleep that he might have had at the time. He agreed that based on this experience, he would likely be able to participate in further training in the same way. It was put to him that “irrespective of whatever pain you have in your right knee and whatever effect it has on your concentration and the ability to sit and stand as required … you will be able to participate in this further training?”, to which he replied: “I just can’t concentrate. That’s the problem;”[69]
(cc)he agreed that he had in the past been able to “push through and deal with those impediments and still [be] able to complete the training;”[70]
(dd)he said that he had not looked into any courses to improve his computer skills and his keyboard skills: “No. Where I come from, I don’t use [a] computer.” It was put to him that he has used a computer in the past, to which he replied: “Yeah, one finger touching – I’m not like people who all fingers .. this is not typing. Even my kids can type better than me;”[71]
(ee)he agreed that he had never looked into taking a course to improve his typing skills. He was unaware of any free courses that might exist within community organisations that he could take. He agreed, on that basis, that he was not able to tell the Court whether or not he would be able to improve his typing skills;[72]
(ff)he agreed that he had used Excel and Word programs on a computer. He said that he had used them “just sending emails”. He knew what Microsoft Word was. He said he had not ever saved a document. He said he has written and read emails. He said: “If you’re thinking I’m a typing guy, computer, I’m not a computer guy;”[73]
(gg)he agreed that he had written invoices before. He could not recall whether or not this involved a program called “Word”. He said he was getting Word, Excel and emails mixed up: “I’m getting confused.” He agreed that his problem right now is the fact he is not very good at typing. He said that he had set up an Excel spreadsheet in the past;[74]
(hh)with most things on the computer, his kids help him. He agreed again that he had never looked into taking a typing course;[75]
(ii)in his job at “Highways,” he was able to interact with his co-workers and management. He agreed that he was able to receive instructions, understand them and follow them. He agreed that it was important for him to be able to concentrate in order to be able to perform the tasks required of him at “Highways”. It was put to him that he had been able to concentrate at “Highways” and that he would still be able to do that in another job. To this, he replied: “Yes, I can, but it’s too many – concentrating … I’m always slow on concentrating;”[76]
(jj)he agreed that if he completed his further training and if he improved his keyboard skills further, he would be able to perform control-room work. It was suggested to him that he was able to do that on a part-time basis of five hours per day, five days per week. He accepted this proposition and agreed that, until he tried it, he would not know whether or not he could increase his hours further from that level of work.[77]
[69]T60, L3-20
[70]T60, L27-29
[71]T61, L1-11
[72]TT61-62
[73]T62, L2-14
[74]TT62-63
[75]T64, L1-19
[76]TT64-65
[77]T65, L7-19
31 Under re-examination, the plaintiff gave the following relevant evidence:
(a)when he has been sitting for a long time, “My leg plays up … gets stiff … and everything is hard. It’s hard for me to tell you how, but my knee plays up when I’m sitting down too long. My knee plays up;”[78]
(b)he agreed that he had been sitting giving evidence for one-and-a-quarter hours after lunchtime. He was asked how his leg was feeling at that time, to which he replied “It’s getting sore … I want to stand up, but I can’t stand up, because I’m talking to you;”[79]
(c)when asked whether, once he has stood up and stretched his leg, when he sits down again, the pain is manageable, he replied: “Once I sit for a long time, everything plays up for me.” He was asked what it would be like for him if he had to sit in a job, for instance three hours a day, sitting down, standing up every ten minutes. He said, in response to that question: “It’s going to be difficult … concentrating is pretty hard, very [difficult] for me.”[80] When asked what effect the pain in his knee has on his ability to concentrate, he replied: “To be honest to you, I can’t concentrate properly … If you have said something to me or whatever, you ask me, five minutes I wouldn’t probably remember what you said to me;”[81]
(d)he was asked questions about completing the CPR part of the Certificate III course, where the dummy on which he had to perform CPR was put up on the table. He said that the instructors said: “‘Don’t worry, sir, we’ll put your dummy on the table … you have to pass the first aid for me to give you the certificate’.”[82] He was asked how he would go if he actually had to kneel down on the floor for any reason, to which he replied: “No … I haven’t kneeled for a long time now since I had my accident.”[83]
[78]TT65-66
[79]T66, L7-11
[80]TT66-67
[81]T67, L27-31
[82]T68, L20-30
[83]TT68-69
The Medical Panel Opinion
32 In response to a referral from Judge Wischusen lodged on 20 December 2019, pursuant to the Act, a Medical Panel provided an Opinion dated 6 April 2020. That Opinion was as follows:
“Question 1. What is the nature of the medical condition (if any) of the Plaintiff’s:
(a) Right knee;
(b) Left knee?
(hereinafter referred to as ‘the said conditions’)
Answer: In the Panel’s opinion:
(a)dysfunction of the right knee secondary to a meniscal tear and aggravation of pre-existing degenerative changes, surgically treated;
(b) constitutional retropatellar clicking.
Question 2. Are any, and if so which, of the said conditions permanent (i.e. likely to persist for the foreseeable future)?
Answer: The Panel is of the opinion that dysfunction of the right knee secondary to a meniscal tear and aggravation of pre-existing degenerative changes, surgically treated, and constitutional retropatellar clicking in the left knee are likely to persist for the foreseeable future and are therefore permanent.
Question 3.Do any, and if so which, of the said conditions currently result from or are they materially contributed to by the right knee injury sustained in the incident on 17 May 2016?
Answer: The Panel is of the opinion that dysfunction of the right knee secondary to a meniscal tear and aggravation of pre-existing degenerative changes, surgically treated, condition results from and is materially contributed to by the right knee injury sustained in the incident on 17 May 2016.
The Panel is of the opinion that constitutional retropatellar clicking in the left knee condition does not result from and is not materially contributed to by the right knee injury sustained in the incident on 17 May 2016.
Question 4.Disregarding any psychiatric consequences of physical injury:
(a) Does the Plaintiff have capacity for suitable employment?
(b) If yes to question 4(a), what employment would constitute suitable employment?
(c) If yes to question 4(b), for how many hours per week can the Plaintiff perform such employment?
(d) Does any incapacity for work result from or is it materially contributed to by any, and if so which, physical condition identified in response to question 1?
(e) If yes to question 4(d), is any incapacity for work permanent (i.e. likely to persist for the foreseeable future)?
Answer: In the Panel’s opinion:
(a)No; (Although the Plaintiff is currently working 15 hours per week as a Security Guard at a gaming venue the Panel concluded that this is not suitable employment);
(b) Not applicable;
(c) Not applicable;
(d) The Plaintiff's incapacity for work results from and is materially contributed to by dysfunction of the right knee secondary to a meniscal tear and aggravation of pre-existing degenerative changes, surgically treated;
(e) Yes.”[84]
[84]Ex P1, pp201-202
33 It was agreed by the parties that the Court in this matter is bound by the content of the Medical Panel Opinion.
The medical evidence
34 There were numerous medical reports contained in the tendered material. Both sides filed reports from medico-legal experts. A precis of the relevant medical material as it relates to the plaintiff’s capacity for suitable employment and to engage in rehabilitation and retraining, is set out below.
The Plaintiff’s medical evidence
35 Two reports were provided by the plaintiff’s general practitioner, Dr Kee Wong. In a report dated 20 June 2017, Dr Wong set out the details of the plaintiff’s work-related injury and noted that at that time, the plaintiff was experiencing pain after standing for half-an-hour, but that walking and sitting did not present any problem. He thought that the plaintiff was not fit for his pre-injury work, but was fit for alternative duties which did not involve heavy lifting, and where there is an ability to sit or stand as necessary.[85]
[85]Ex P1, pp31-32
36 The plaintiff’s ability to sit and stand was elucidated upon further in the content of a worker questionnaire dated 29 March 2018. In that document, the plaintiff noted that he “can’t stand too long or sit too long”.[86] In a report dated 10 December 2019, Dr Wong said that he thought the plaintiff was fit for alternate work and noted that at that time, the plaintiff was working fourteen to fifteen hours a week with a security firm, where he is able to sit or stand as necessary.[87]
[86]Ex P1, p33
[87]Ex P1, p37
37 Multiple reports were provided in the Plaintiff’s Court Book from Mr Camdon Fary, orthopaedic surgeon, who performed the plaintiff’s right knee arthroscopy and provided other treatment to manage his right knee pain. In a report dated 4 July 2016, Mr Fary noted that the plaintiff had presented with a traumatic right knee injury which had occurred at work four weeks earlier. He said that the MRI scan demonstrated a torn displaced medial meniscus blocking full range of motion. He said that there were signs of early cartilage damage.[88]
[88]Ex P1, p38
38 In a report dated 12 December 2016, Mr Fary noted that the plaintiff had started to develop progressive stiffness and arthritic knee pain, particularly with weight bearing. He thought that this was consistent with progression of the plaintiff’s arthritic changes.[89]
[89]Ex P1, p39
39 In the most recent report dated 13 April 2018, Mr Fary noted that sequential MRI scans confirmed progression of the plaintiff’s tibial plateau cartilage damage and development of subchondral oedema, consistent with full cartilage loss. He thought that the plaintiff was not fit for his pre-injury employment or squatting, kneeling and lifting of greater than 20 kilograms. He said that the plaintiff had advanced medial traumatic tibiofemoral osteoarthritis and associated synovitis. Mr Fary said that the plaintiff “requires ongoing optimising of conservative management to delay knee replacement”. He said that it was difficult to determine when the plaintiff will ultimately require either a partial or total knee replacement. He observed that the plaintiff’s arthritis had progressed rapidly over two years and that the chance of delaying the knee replacement for several years longer was “guarded”.[90]
[90]Ex P1, p44
40 Mr James Wooldridge, physiotherapist, provided three reports in the Plaintiff’s Court Book. In a report dated 21 July 2018, Mr Wooldridge commented, in relation to the plaintiff’s ongoing knee condition, that “most injuries involving meniscal and cartilage damage … will develop arthritic changes … which later in life may lead to the knee joint needing a replacement”. Mr Wooldridge commented that he had found the plaintiff to be a “very proactive and willing participant in his rehabilitation, he always expressed in my opinion a genuine desire to return to the workforce it was only his physical limitations that handicapped him”.[91]
[91]Ex P1, p49
41 In a report dated 17 May 2019, Mr Wooldridge expressed the opinion that the plaintiff would be suitable to return to alternative work with restrictions in place. He did not put a limit of hours and days on these restrictions, however, he stated that the plaintiff “would need to start on restricted hours, avoiding walking or standing for longer than 30 minutes, no kneeling, no ladders, avoid repetitive use of stairs or squatting, avoid driving long distances”. He thought that the plaintiff’s restrictions were likely to continue for the foreseeable future.[92]
[92]Ex P1, pp50-51
42 The plaintiff was examined for medico-legal purposes in February 2018 by Dr Joseph Slesenger, specialist occupational physician. I note that the content of Dr Slesenger’s opinion traverses matters which are superseded by the content of the Medical Panel Opinion. As such, I will not refer to Dr Slesenger’s report, as I am bound by the Medical Panel Opinion in relation to these matters.
43 The plaintiff was reviewed for medico-legal purposes by Mr Russell Miller, orthopaedic surgeon. Mr Miller provided four reports in the Plaintiff’s Court Book. In a report dated 28 October 2019, Mr Miller said that from the point of view of the plaintiff’s right knee “he will have difficulty with work that involves large amounts of prolonged standing, walking, twisting, turning, kneeling, squatting, and walking on uneven ground”. On that basis, Mr Miller expressed the view that the plaintiff could not return to his pre-injury duties on a full-time basis.
44 As to alternate employment, Mr Miller said: “If he were to return on a part-time basis, I would estimate he could work a maximum of two hours a day, five days a week … These restrictions are permanent, and work related.”[93]
[93]Ex P1, p80
45 The plaintiff was assessed for medico-legal purposes by Dr David Middleton, occupational health and rehabilitation consultant. In the most recent report dated 11 December 2019, Dr Middleton noted that at that time, the plaintiff was involved in a casual job through All Skilled Security Ltd, up to fifteen hours per week over the weekends, working seven hours on a Friday and Saturday, a total of fourteen hours per week. Dr Middleton noted that this job was designated as a crowd-control position, and he commented that the plaintiff was able to undertake this job by being allowed to lean against the security door while working.[94]
[94]Ex P1, p117
46 Dr Middleton noted that upon examination, the plaintiff struggled to provide him with his history due to poor memory, making it difficult to gain a chronological history.[95]
[95]Ex P1, p119
47 In a report dated 18 July 2019, Dr Middleton had noted that the plaintiff suffers from disturbed sleep, which can result in the effects of sleep deprivation. Dr Middleton noted that this will impact on the plaintiff’s capacity for concentration and recall and as such, he should be limited to part-time work to ensure that his ongoing symptomatic injury does not impinge on his non-work time.[96]
[96]Ex P1, p111
48 In the report dated 11 December 2019, Dr Middleton said, in relation to the plaintiff’s current employment:
“I believe it is important to recognise that the employer in this case has been clearly supportive of … [the plaintiff], enabling him to lean against the entrance door and change posture as required and that the majority of the time, he is not undertaking duties that are manual…
Recognising that [the plaintiff] currently works two consecutive days of seven hours but has the remainder of the week to recover, it is my recommendation that he attend work on alternative days and is limited to four to five hours per shift … a maximum of five hours per shift, three days per week … .”[97]
[97]Ex P1, p129
49 Dr Middleton noted generally, that the maximum number of hours which the plaintiff should perform in any one day is four to five, and that he should attend work on alternate days of the week, a maximum of three days per week. This restriction was considered necessary to support the plaintiff in maintaining a capacity to perform his employment on a reliable and consistent basis.[98]
[98]Ex P1, p129
The Defendant’s medical reports
50 The plaintiff was assessed for medico-legal purposes on behalf of the defendant by Dr Gary Davison, consultant occupational physician. In his latest report dated 30 July 2020, Dr Davison noted that the plaintiff has not undertaken full-time employment since suffering his injury on 17 May 2016. He said that at the time of his assessment, and subsequently, the plaintiff had been working approximately fifteen hours per week. Dr Davison thought that the plaintiff may, subject to a graduated return-to-work plan, be capable of progressing to a full-time role. He said that he considered that the plaintiff would be capable of commencing at a rate of four hours per day, five days per week, and increasing at the rate of thirty minutes per day per week. Dr Davison noted that in his present role, the plaintiff is required to stand and walk for most of the time that he is currently at work. Dr Davison made no reference to the difficulties which the plaintiff was experiencing with performing his current role, nor to the accommodation which the plaintiff’s employer had made of the plaintiff’s existing incapacity. Dr Davison did not set out his reasoning for nominating a present work capability of four hours per day, five days per week.[99]
[99]Ex D1, p46
Expert evidence in relation to suitable employment
51 The defendant relied upon two reports from Acumen Health, vocational assessors, in support of its argument that the plaintiff will have, after engaging in rehabilitation and further training, a capacity for “suitable employment” which exceeds the threshold for the test for economic loss in the Act.
52 In the first vocational assessment report provided dated 29 January 2019, it was agreed that the only potentially suitable job type which was presented was that of alarm, security or surveillance monitor.[100] The average gross weekly wage for that position was $1,177.[101]
[100]Ex D1, p53
[101]Ex D1, p53
53 In the labour market analysis provided within the report, Acumen Health noted, in relation to physical demands:
“… sitting is listed as the predominant posture. … [The plaintiff] advised Acumen that he has a sitting tolerance of one hour before being required to stand. Acumen advises that this may be able to be accommodated as long as the video feeds being monitored can still be viewed from a standing position … a worksite assessment [should] be completed to ensure that flexibility of movement is able to be achieved and to discuss the possibility of a sit to stand desk or the ability to alternate frequently from sitting to standing … .”[102]
[102]Ex D1, p54
54 Acumen Health stated that as far as training/education for this type of job:
“… Security consultants usually need a Certificate III including at least 2 years of on-the-job training, or a Certificate IV, or at least 3 years of relevant experience. Crowd Controllers and Private Investigators usually need a Certificate II or III, or at least 1 year of relevant experience … .”[103]
[103]Ex D1, p53
55 Under the heading “Transferrable skills,” it was noted that the plaintiff possesses a Certificate III in Security Operations, which is a prerequisite for this vocational option. No reference was made to the plaintiff’s lack of experience in the area, having only worked a total of three months. It was noted that if the plaintiff had a current security licence, then he would be required to participate in a four-day control-room course in order to become eligible to apply for control-room job opportunities. This course would cost approximately $450. It was noted that the plaintiff had previously worked in the area of security and that the assessor was of the opinion that the plaintiff has the required transferable skills to transition into a control-room monitoring role. The report stated that: “… [The plaintiff] is deemed to possess the required attention to detail, vigilance, knowledge of security operations and law to transition into this type of role.”[104] No reasoning was given for why the plaintiff would be deemed to possess these attributes.
[104]Ex D1, p54.
56 It was noted by Acumen Health that the plaintiff reported a constant “stabbing” pain in his right knee, with the stabbing associated with extended sitting/standing. The report also noted that sitting is listed as the predominant posture in roles of this type. The assessor noted that the plaintiff advised he had a sitting tolerance of about one hour before being required to stand. As set out above, the assessor stated that this “may be able to be accommodated as long as the video feeds being monitored can still be viewed … [from] a standing position”. The assessor stated that if the plaintiff wished to pursue this type of vocation, then a worksite assessment would need to be completed to ensure that flexibility of movement is able to be achieved and to discuss the possibility of a sit/stand desk or the ability to alternate frequently from sitting to standing throughout the working day.[105]
[105]Ex D1, p54
57 In a supplementary vocational assessment report dated 22 July 2020, Acumen Health provided further information in relation to the role of “alarm security or surveillance monitor”.[106] In particular, the assessor noted that in such positions, employees “constantly sit” when monitoring video feeds.[107] The assessor also noted that employees use a range of electronic communication and basic security equipment as part of their role. Finally, the assessor noted that mental skills necessary to such a role included “communication, organisation, analysis and decision-making skills”.[108] The assessor analysed roles that were said to constitute “suitable employment” and which were in the vicinity of the plaintiff’s residence.
[106]Ex D1, p65
[107]Ex D1, p65
[108]Ex D1, p66
58 The assessor provided a detailed task analysis and outlined the physical requirements of each role as identified as follows:
PROPOSED SUITABLE EMPLOYMENT 1[109] Role title
Corporate control room operator
Environment
Working in a secured control room, monitoring computer screens and alarms
Hourly rate
The hours were advertised as full time and the wage is $25.00 to $31.96 per hour depending on experience.
Skills required
· Excellent presentation and professionalism.
· Superior customer service skills.
· Excellent communication skills; both verbal and written.
· High level of computer literacy (Word, Excel, Access Control systems).
· Good typing skills.
· Reactive and quick thinker and the ability to show initiative .
· Physically fit to conduct foot patrols.
· A sharp eye for detail.
Qualification required
· Certificate III in Security Operations, including Control Room endorsement.
· High level of computer literacy (Word, Excel, Access Control systems).
· Current First Aid.
Task Function · Monitor screens and CCTV to ensure assets are protected, to deter would-be offenders, to detect any signs of a security breach or unusual situation.
· Respond to critical incidents and simultaneously prepare written reports
· Monitor and respond to internal and external alarms
· Interact with key stakeholders including building management emergency services, client representatives and security officers via phone, radio and intercom systems.
· Practise and implement health and safety processes including risk assessments
· Take control in day-to-day and
· emergency situations
· Provide remote access to buildings via building access control systems
· Conduct both indoor and outdoor foot patrols
· Provide excellent customer service
The employer could not provide suitable time for a detailed task analysis for the above role however the employer reported that besides monitoring screens and alarms in the control room, the candidate would also need to undertake occasional foot patrol to check the building premises or when issues are identified.
The candidate would need to follow procedure and report to the concerned authorities and would not need to [physically] confront or handle people. The employer advised that the successful candidate will not [be required] to physically respond to issues and threats.
PROPOSED SUITABLE EMPLOYMENT 2[110] Role Title Control room operator / also known as alarm and surveillance monitor Environment
The working environment for this role is typically site specific, however does typically involve a small closed in environment for the staff member. The role generally requires the staff member to work autonomously/ independently in the control room. Hourly rate Site and Award dependant Skills required • The Control Room Operator should have at least a basic computer skill level and should independently be capable of navigating and utilising multiple computer systems and software.
• Training at a Certificate III in Security and above is required.
• Training on the job is provided.
• Require unrestricted bilateral upper limb functioning for use of one or more computers.
• In relation to lower limb functioning, this is primarily a seated role.
• Nil neck limitations as staff may be required to look at multiple screens.
• Good eyesight and visual function. Ability to operate under fluorescent light and in a closed room.
• Attention to detail required and ability to stay alert.
Qualification required Certificate III in Security Operations (CPP31318) is the minimum qualification required in this role. Task Function · Monitor screens and CCTV to ensure assets are protected, to deter would-be offenders, to detect any signs of a security breach or unusual situation.
· Respond to critical incidents and simultaneously prepare written reports.
· Take control in day-to-day and emergency situations.
· Provide remote access to buildings via building access control systems.
· Provide excellent customer service.
• Primarily a seated role within an enclosed small space. Typically, Control Room Operators do not engage in on-foot activities outside of this space as part of this role.
• For some clients of ASRM this may differ slightly, however it is understood that the role is typically only seated.
• Varying access to the worksite/office for the Control Room Operator. Some sites may be ground level, whilst others may require use of stairs or a lift to access.
• Frequent to constant sitting with flexibility of standing for increments of time as needed.
• Frequent neck movements for adequate
viewing of multiple screens, including neck flexion, extension and rotation.
PROPOSED SUITABLE EMPLOYMENT 3[111] Role title Control room operator Environment Involves working in an enclosed office area monitoring alarm panels, CCTV and duress devices. In instances with any hazards, the staff member would need to provide direction to ESS security staff and concerned authorities as required.
Hourly rate: The advertised wage is $25.00 to $31.96 per hour depending on experience.
Skills required • An exceptional customer service focus.
• Good communication skills –written and verbal.
• Independent problem-solving skills.
• An ability to work in a fast pace, team environment.
• An ability to multi-task under pressure
• Have a strong work ethic.
• A high level of computer literacy with a typing speed of at least 30 words per minute.
• Strong team orientation with a willingness to support fellow team members.
• A ‘can do’ positive attitude.
• Ability to work a rotating roster - day, night and/or weekends.
Qualification required • Current VIC Security Licence with Control Room component.
• Current First Aid.
Task Function · Timely and accurate response to service calls.
· Monitoring alarm panels, CCTV and duress devices.
• Handling customer enquiries.
· Logging all calls, data entry and providing accounts information.
• Direction and deployment of security officers to: alarms, incidents or emergencies.
• Monitoring service levels to compliant standards.
• Providing direction to ESS security staff.
• Ensuring that all reports are completed in a timely manner
• Responding to customer and employee enquiries.
• Accurate data entry and general administration duties.
• The employer advised this is a sedentary role with constantly sit to monitoring video and examining people on the screen, identifying threats and hazards. Candidate must follow procedure and report to the concerned authorities and no physical handling of people or physically responding to issues is required. [109]Ex D1, pp66-67
[110]Ex D1, pp68-69
[111]Ex D1, pp69-70
59 As part of its assessment of what skills the plaintiff would need to acquire in order to retrain for the proposed suitable employment roles, the assessor set out the need for the plaintiff to undertake and complete a CCTV control-room operator course. The assessor also referred to the fact that the plaintiff would need to hold a first aid certification (not older than twelve months) to be eligible to secure control-room work. Lastly, the assessor noted that employers prefer a candidate to have a basic to intermediate level of computer literacy (Word, Excel, Access Control Systems), as the role requires operating varied security systems and software and completing data entry and general administration duties.[112]
[112]Ex D1, pp71-72
60 As part of the assessment, the assessor stated that it was considered that the plaintiff has basic computer skills, with the ability to use Excel and Word. The assessor stated that with the “availability and support from on job training provided by employers, … [the plaintiff] would not require to undertake any further computer retraining”.[113] The assessor did not set out the reasoning behind either of these conclusions.
[113]Ex D1, p72
The issues
The Plaintiff’s credit
61 No serious attempt was made to discredit the plaintiff during cross-examination. One aspect of cross-examination focussed upon the plaintiff’s knowledge of what was involved in the additional training which would be necessary for the plaintiff to undertake the proposed suitable employment options which were put forward by the defendant. The plaintiff frankly admitted, and it was not in dispute, that he did not know what was involved in the retraining which would be required for these positions.
62 The plaintiff was pressed about his ability to sit for extended periods of time, that being relevant to performing control-room work. Several instances where the plaintiff had said to examining medical practitioners that sitting was no problem for him, were put to him during cross-examination. The plaintiff maintained that sitting is an issue for him because once he has been sitting for a period of time, although he can initially relieve the pain that he feels by standing and changing posture, once his knee starts to play up, then “… everything plays up for me …”.[114]
[114]T66
63 An examination of the records indicates that the plaintiff has consistently given this account of the effects of his right knee injury. I note as an example, the content of a worker questionnaire form which he completed for Dr Wong in 2018, in which the plaintiff noted that he has difficulty with both sitting and standing as a result of his injury. The content of this form is consistent with the viva voce evidence which the plaintiff gave to this Court.
64 The plaintiff was also cross-examined about the extent to which his pain affects his ability to concentrate. While the plaintiff conceded, as he was bound to do, that he had attended and completed the Certificate III course, he constantly made references to his difficulties with concentration, both during the course and in general. This evidence was consistent with the matters to which he had sworn concerning difficulties with concentration, in his affidavits.
65 Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was an honest and co-operative witness who was doing his best at all times to give accurate responses to the questions asked of him. During cross-examination, the plaintiff gave his evidence openly and without embellishment. He made concessions when necessary, many of which were adverse to his own interests.
66 Furthermore, I find that the plaintiff’s account of events has remained consistent throughout the period in which he has seen his treating medical practitioners, consulted with the medico-legal assessors and provided evidence to this Court.
67 After a consideration of all of the evidence, particularly the evidence of the plaintiff as corroborated by the medical records, I consider that he is a credible witness, in the sense of being a truthful person. At no time did I gain the impression that he was attempting to mislead the Court or to exaggerate his symptoms in any way.
Stoic plaintiff
68 I also formed the view that the plaintiff is extremely stoic in relation to his condition. I note the comment made by Mr Wooldridge, physiotherapist, that he had found the plaintiff to be a “very proactive and willing participant in his rehabilitation, he always expressed in my opinion a genuine desire to return to the workforce it was only his physical limitations that handicapped him”.[115]
[115]Ex P1, p49
69 Despite great difficulty, the plaintiff has attempted to return to work in the form of undertaking a security role at the “Highways” in Frankston. In relation to this position, the plaintiff said that standing during his shift, even while leaning against the wall, aggravated the pain in his knee; however, he was “just so happy to have the work,” that he “pushed through”. He felt very lucky to have such a supportive employer and workmates.
70 Consistent with this evidence, I note the opinion of the Medical Panel that “this [role] is not suitable employment”. This view, by which I am bound, accords with all of the evidence before the Court which indicates that the plaintiff was only able to continue in the role at “Highways,” because of his employer’s agreement to modify the duties which would normally have been required of him, and his workmates’ willingness to take on duties which otherwise would have fallen to the plaintiff to perform.
Compensable injury
71 In the Certificate of Opinion dated 6 April 2020, the Medical Panel found that the plaintiff was suffering from “… dysfunction of the right knee secondary to a meniscal tear and aggravation of pre-existing degenerative changes, treated operatively …”.[116] I am bound by this opinion and make a finding in the same terms.
[116]Ex P1, p209-210
Is the compensable injury permanent for the purposes of the Act?
72 In the Certificate of Opinion dated 6 April 2020, the Medical Panel found that the plaintiff’s compensable injury is likely to persist for the foreseeable future and therefore, is permanent for the purposes of the Act. I am bound by this opinion and make a finding in the same terms.
Arguments concerning economic loss
73 The parties agreed that under s325(2)(e), the figure which most fairly reflects the plaintiff’s “without injury” earnings is $1000 gross per week, or $52,000 gross per annum. In that case, 60 per cent of the plaintiff’s “without injury” earnings would amount to $600 per week or $31,200 per annum.
74 As to the plaintiff’s residual work capacity, as set out above:
(a) all of the medical experts conclude, and I accept, that the plaintiff is unable to return to his pre-injury work duties; and
(b)the Certificate of Opinion of the Medical Panel dated 6 April 2020 states that the plaintiff is not presently fit for suitable employment.
75 I am bound by this opinion and make a finding in the same terms.
76 The only questions that remain for determination are:
(a) whether the plaintiff is capable of completing the additional training required of him to be eligible for control-room work; and
(b) whether that role would constitute suitable employment for the plaintiff, if he completed that additional training.
Is the Plaintiff capable of undertaking the proposed training?
77 It was common ground between the parties that in order to be eligible to apply for a role performing control-room work, the plaintiff would be required to undertake a course of four days’ duration, focussing on the skills needed to undertake control-room work.
78 On the plaintiff’s own evidence, he did not know enough about the course to be able to say whether or not he would have difficulty undertaking it. He gave evidence that he was able to complete his Certificate III course, albeit while experiencing difficulties with his pain, restrictions in the function of his right knee and concentration. That course was far more involved and a much longer course than what is proposed by the defendant as being necessary additional training in this case. Thus, the plaintiff has not persuaded me that he would not be able to undertake this additional training course.
79 However, this is not the end of the matter. An analysis of the documents in Exhibit D1 disclose that in addition to obtaining a Certificate III, “…Security Consultants usually need … at least 2 years of on-the-job training, or a Certificate IV, or at least 3 years of relevant experience …”.[117] It was not in issue that the plaintiff does not presently have this level of experience. While he has obtained some experience working as a security guard at “Highways,” the Medical Panel Opinion was, and I have found, that this position does not constitute “suitable employment”. I also note that in relation to this role, Ms Parsons, an expert occupational therapist and vocational assessor, concluded that “… given the significant difficulties he experiences performing this role … he poses … a health and safety risk to himself, other workers around him and patrons of the licenced premises … ”.[118] On the basis of the evidence before me, I am satisfied that the plaintiff would be unable to obtain the necessary “on-the-job” experience to qualify him for a role performing control-room work.
[117]Ex D1, p53
[118]Ex P1, p15
80 Further, two out of the three positions proffered by the defendant as examples of suitable employment, list a “current first aid certificate” as a requirement of the position.[119] In relation to this, the report from Acumen Health relied upon by the defendant confirms that “… [the plaintiff] would need to hold a First Aid Certification (not older than 12 months) to be eligible to secure employment as a Control Room Operator … ”.[120]
[119]Ex D1, pp67 and 69
[120]Ex D1, p72
81 While the plaintiff obtained a first aid certificate in about March 2018, it is not “current” for the purposes of obtaining a position performing control-room work. Concerningly, the evidence also disclosed that the plaintiff did not complete his first aid certificate in an orthodox manner, in that he was allowed to perform the CPR component of the course on a dummy which had been positioned on a table, rather than kneeling on the floor. The evidence on this point satisfies me that this modification to the course was made because the plaintiff is unable to kneel on the floor. Thus, I am satisfied to the requisite standard that if the plaintiff was required to obtain an up-to-date first aid certificate in order to be eligible to undertake control-room work, he would be unable to do so.
82 Notwithstanding all of the above, counsel for the defendant rightly pointed out that not all of the positions required a current first aid certificate. Thus it is necessary for me to analyse the usual requirements of control-room work, in order to reach a conclusion about whether any such position would constitute “suitable employment” for the plaintiff, assuming he had completed appropriate additional training.
Is the Plaintiff capable of engaging in suitable employment?
83 The requirements of the three roles which were put forward by the defendant as constituting examples of suitable employment for the plaintiff once he has engaged in further training, are set out above.
84 Having considered all of the evidence concerning the requirements which control-room work includes, I find that the plaintiff would be unable to complete key aspects of the role, viz:
(a) constant sitting is a requirement of the role. While the possibility of a sit/stand desk was postulated by Acumen Health, there is no evidence that this option is realistically available to the plaintiff, especially when one considers the requirement to view the video feed on the monitors in the control room which is usually done from a seated position. In addition, the plaintiff’s injury is such that it is not simply a matter of him sitting or standing as required. To use the plaintiff’s words, sitting is an issue for him because once he has been sitting for a period of time, although he can initially relieve the pain by standing and changing posture, once his knee starts to play up, then “… everything plays up for me …”. Taking into account all of the evidence in relation to this matter, I find that on this basis alone, a role as a control-room worker does not constitute suitable employment for the plaintiff;
(b) presentational factors such as “excellent presentation and professionalism,” “excellent communication skills,” “attention to detail,” “ability to stay alert,” “ability to work in a fast pace, team environment” and “an ability to multi-task under pressure,” are all examples of matters which are requirements of the role. On the evidence before me and in particular, on my assessment of the plaintiff as he presented in Court, I find that he would be unable to satisfy these requirements. In particular, it was apparent under cross-examination that the plaintiff had difficulty concentrating, was easily confused and, at times, was unable to follow the line of questioning. I note that in his affidavit material, the plaintiff deposed that he worries that he would struggle to concentrate for extended periods of time. He said that he presently has difficulty focusing, due to his pain and his lack of sleep. He also has difficulty retaining new or a lot of information. He does not believe he could be relied upon to provide a high level of concentration on the task, or a sharp eye for detail. He said that his pain is distracting, and he almost always feels fatigued, given the limited sleep he now has. He thought he would struggle to stay alert. These matters are all consistent with what I observed of the plaintiff while he was giving his evidence;
(c)basic to intermediate levels of computer literacy with Word, Excel and Access Control Systems are a requirement. Indeed, an analysis of the three positions put forward demonstrate that the computer literacy requirement may even be higher than basic to intermediate, with two positions requiring a “high level of computer literacy,” and the third requiring the candidate to be capable of “independently navigating and using multiple computer systems and software” and “[responding] to critical incidents and simultaneously [preparing] written reports”. Having heard the evidence given by the plaintiff, I find that he does not have even the most fundamental computer skills upon which he could build, in order to reach the level of computer literacy required of such a role. While the plaintiff candidly acknowledged that he has used email, Word and Excel, when giving evidence, he became confused as to which one was which. He said that he had never saved a document before. He described himself as a “one finger” typist and said “Where I come from, I don’t use [a] computer … if you’re thinking I’m a typing guy … I’m not a computer guy”. Thus, I find that there is no training which the plaintiff could undertake which would allow him to fulfill the computer literacy requirements necessary to perform control-room work.
85 In making an assessment of this matter, I must also have regard to the judgment of the Court of Appeal in Richter v Driscoll.[121] In that case, the Court held that in assessing whether a plaintiff is fit to engage in “suitable employment,” the Court is required:
“… to consider whether the entirety of the … [plaintiff’s] relevant personal circumstances—that is, … [his] injury-caused incapacity and other relevant personal circumstances … meant that … [he] would likely be unsuccessful in obtaining employment because … [he] had nothing ‘merchantable’ to sell. The entirety of the worker’s relevant personal circumstances, in a case such as the present, would readily be understood to have a compounding effect.”
[121][2016] VSCA 142 at paragraph [106] (citing Cardiff Corporation v Hall [1911] 1 KB 1009, at 1020 and 1027)
86 Having regard to the evidence as a whole and in particular, each of the matters set out at paragraphs 79-84 above, I accept that by reason of the plaintiff’s injury-caused incapacity and the personal circumstances which arise from that, despite whatever additional training he might undertake, the plaintiff:
(a) is not presently “merchantable” as a prospective employee; and therefore
(b) presently has no realistic capacity for “suitable employment”.
87 I have already found that the injuries from which the plaintiff suffers (and therefore the ongoing effect of those injuries), are permanent for the purposes of the Act.
Conclusion
88 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for both pain and suffering and loss of earning capacity in respect of the injury which he suffered to his right knee as a result of the accident which occurred on 17 May 2016.
89 I shall hear the parties on the question of costs.
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