Thai v Toyota Motor Corporation Australia Ltd
[2017] VCC 902
•4 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04940
CI-16-05369
| DUNG THAI | Plaintiff | |
| v | ||
| TOYOTA MOTOR CORPORATION AUSTRALIA LTD | Defendant | |
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 and 15 June 2017 | |
DATE OF JUDGMENT: | 4 July 2017 | |
CASE MAY BE CITED AS: | Thai v Toyota Motor Corporation Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 902 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left shoulder – injury to lower back - pain and suffering – pecuniary loss - whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Chala Sani Abdula v The Queen [2011] NZSC 130; [2012] 1 NZLR 534; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; The Herald & Weekly Times Ltd & Anor v Jessop[2014] VSCA 292; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170; Philippiadis v Transport Accident Commission [2016] VSCA 1; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.
Judgment: Application successful in relation to his lower back injury
Application dismissed in relation to his left shoulder injury
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC | Willcocks Lawyers |
| Mr S Dawson | ||
| For the Defendant | Ms J Forbes QC Ms C Boyle | Minter Ellison |
HER HONOUR:
Preliminary
1 Mr Thai is a 49 year old man who suffered two separate injuries whilst employed as an assembly worker with Toyota. On 9 September 2008, Mr Thai suffered a left shoulder injury when a spot gun came out of its holder and struck his shoulder. In October 2013, he suffered a lower back injury, as a consequence of having performed heavy and repetitive tasks over the course of his employment. Thereafter, Mr Thai returned to work for a period of time on light duties and reduced hours. In March 2016, he accepted a redundancy package as a consequence of his ongoing lower back pain, and has not worked since.
2 The defendant accepts that Mr Thai suffered both of these injuries at work, but disputes that either injury is serious.
3 Mr Thai claims that as a consequence of the September 2008 accident, the functioning of his left, non-dominant arm has been impaired, and that he has suffered serious pain and suffering consequences as a result. In order for Mr Thai to be entitled to claim common law damages for this injury, the impairment to his left shoulder must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985.
4 Mr Thai also claims that over the course of his employment up until October 2013, he suffered an injury to his lower back, and that the functioning of his spine has been impaired. Mr Thai claims to have suffered serious consequences as a result of this injury, in respect of both pecuniary loss and pain and suffering. In order for Mr Thai to be entitled to claim common law damages for this injury, the impairment to his spine must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985.
5 Only Mr Thai was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
6 For the reasons which follow, I am satisfied that the consequences to Mr Thai from his lower back injury, both in respect of pecuniary loss and pain and suffering, can be described as at least ‘very considerable’. However, I am not satisfied that the consequences from his left shoulder injury can be described as at least ‘very considerable.’
Relevant background
7 Mr Thai is married and lives with his wife and adult son. He was born in Vietnam, where he completed schooling to the equivalent of a Year 10 level. In 1993, Mr Thai came to Australia as a refugee.
8 Mr Thai was initially employed in unskilled manual type work, including in a petrol station, a light factory and a curtain factory, before subsequently commencing employment with Toyota in March 2006.
9 Prior to suffering the injuries the subject of these two claims, Mr Thai enjoyed watching sport on television and playing soccer in his leisure time. He worked full-time with Toyota and regularly did overtime. Mr Thai had not previously suffered any injuries to his left shoulder or lower back.
Mr Thai’s employment with Toyota
10 On or about 28 March 2006, Mr Thai commenced employment with Toyota on a full-time basis. He was employed to work in the body shop as a production worker, undertaking manual and welding work. Mr Thai was required to manhandle metal panels known as ‘wheelhouses’ and to weld panels with a spot gun.
11 On or about 9 September 2008, Mr Thai had finished using the spot gun and had placed it back in its holder, when it slipped off its hook and hit him in the left shoulder. Mr Thai said he immediately experienced pain in his left shoulder and neck and that he consulted a nurse at the Toyota Medical Centre. At that time, Mr Thai was given some ice for his shoulder and said that he took Nurofen medication, but that he otherwise returned to his pre-injury work duties.
12 On 19 November 2008, Toyota’s company doctor, Dr David Farmer, arranged for Mr Thai to undergo an x‑ray and an ultrasound of his left shoulder. Both were reported as normal. However, Mr Thai said that he continued to experience increasing pain in his left shoulder to the extent that he was having difficulty using the spot gun at work. As he was keen to remain in employment, Mt Thai cut back on his domestic and recreational activities after work to rest his left shoulder.
13 In June 2009, due to his persisting pain, Mr Thai was referred from the Toyota Medical Centre to orthopaedic surgeon, Mr Richard Dallalana, for treatment of his left shoulder and neck pain.
14 On 9 July 2009, Mr Thai underwent an ultrasound examination of his left AC joint, which confirmed capsular hypertrophy and an effusion within the joint. Mr Thai then received a corticosteroid injection under ultrasound guidance. Mr Thai received only transient benefits from this injection such that Mr Dallalana subsequently recommended surgery.
15 On 20 October 2009, Mr Dallalana performed a left shoulder arthroplastic decompression and an excisional arthroplasty of Mr Thai’s AC joint, plus a bursectomy.
16 From approximately 20 October 2009 until February 2010, Mr Thai was unable to perform his pre-injury work duties. In February 2010, Mr Thai returned to work on modified duties. In approximately May 2010, Mr Thai was able to return to his pre-injury duties, which, he said he had been keen to do as he enjoyed his job at Toyota.
17 From approximately May 2010 until October 2013, Mr Thai continued to perform his normal duties, but stated that he continued to have pain and difficulty in his left shoulder and neck. He said that his work duties required him to continue to use the spot gun, and that such work required him to adopt an awkward position, whilst he repetitively and forcefully applied pressure to the gun. Mr Thai said that he was also required to perform welding on a large number of panels, and that over time, he found that he experienced pain in his left and right shoulders as well as his lower back.
18 On 10 August 2011, Mr Thai consulted general practitioner, Dr Ngoc Chi Nguyen in relation to pain in his spine.
19 On 17 October 2013, Mr Thai said that he experienced the onset of sudden and strong pain in his lower back whilst performing his normal work duties, and that such pain increased whilst he manhandled the panels and completed welding tasks. Mr Thai said that by the time he finished work and got home, he struggled to get out of his car.
20 The following day, Mr Thai consulted Dr Nguyen, who certified him as unfit to return to his pre-injury duties. Dr Nguyen also referred Mr Thai for an x‑ray of his spine, which did not demonstrate any abnormality.
21 On 21 October 2013, Mr Thai consulted a nurse at the Toyota Medical Centre, due to increased pain in his spine.
22 On 29 October 2013, an MRI scan was taken of Mr Thai’s lumbar spine. It demonstrated a small L4/5 disc protrusion and some minor distortion to the L5 nerve root sheath.
23 On 13 November 2013, Mr Thai consulted occupational physiotherapist, Mr Giac Jack Du, in relation to his lower back pain. Mr Du noted that Mr Thai complained of referred pain into his right leg, down to his knee.
24 On 21 November 2013, Mr Thai consulted general practitioner, Dr David Middleton, in relation to his lower back pain. At that time, Mr Thai was prescribed Mobic, Lyrica and Voltaren to help with such pain.
25 Mr Thai remained off work from November 2013 until approximately May 2015, at which time he returned to work on light, modified duties. However, Mr Thai said that he ceased work again after a few weeks, due to his lower back pain.
26 On 22 July 2015, Mr Thai underwent a CT guided epidural injection into his lumbar spine.
27 In approximately July 2015, Mr Thai attempted a further return to work on light, modified duties. He gradually increased his hours, and was eventually working four hours per day, five days per week. Over the next six months, however, Mr Thai experienced an increase in his pain, particularly in his spine, such that he was forced to cease work on or about 13 January 2016. Mr Thai has not worked since that time.
28 In September 2015, Dr Middleton referred Mr Thai to neurosurgeon, Mr Craig Timms, in relation to his ongoing lower back injury. At that time, Mr Timms noted that Mr Thai had decreased straight leg raising in both legs, with mild weakness in the right leg. Mr Timms recommended that Mr Thai continue with physiotherapy and massage treatment, and considered surgery to be a “last resort.”
29 On 13 January 2016, an MRI scan was taken of Mr Thai’s lumbar spine. It demonstrated an anterior L3/4 annual fissure with anterosuperior L4 endplate modic type 1 bone marrow oedema and mild L4/5 central canal stenosis, due to a combination of mild right paracentral disc protrusion, mild bilateral facet joint hypertrophy and congenital canal stenosis.
30 In March 2016, Mr Timms reviewed Mr Thai and noted that his symptoms had worsened. Mr Timms recommended that Mr Thai undergo a cortisone injection, and further recommended that he undergo decompressive surgery in the form of a lumbar laminectomy, in the event the injection did not relieve his symptoms.
31 On 30 March 2016, Mr Thai accepted a voluntary redundancy package. His union delegate completed his redundancy form, and stated that he accepted the package due to his ongoing lower back pain.
32 In February 2017, Mr Timms reviewed Mr Thai and noted that his symptoms had further worsened, with the progression of symptoms into his left leg. He also noted that Mr Thai was restricted in his ability to sit, stand and mobilise.
33 On 9 March 2017, a further MRI scan demonstrated disc degeneration at L3/4, and a mild posterior disc bulge, not causing significant spinal canal stenosis. There was also a mild posterior disc bulge at L4/5, causing minimal indentation of the bilateral descending L5 nerve root, together with moderate bilateral L5-S1 facet joint degeneration.
34 Mr Timms most recently reviewed Mr Thai on 24 March 2017, at which time Mr Timms again recommended treatment in the form of an epidural injection and surgery.
35 Following Dr Middleton’s retirement in January 2016, Mr Thai commenced consulting general practitioner, Dr Edward Oludare, who continues to prescribe him Mobic, Lyrica, Panadol Osteo and Endep. Dr Oludare also recommended that Mr Thai undergo a further CT‑guided lumbar epidural injection.
36 Mr Thai said that he is too scared to undergo the recommended surgery, but that he is willing to undergo the cortisone injection. Mr Thai was of the understanding that Mr Timms had requested funding from Toyota for this injection, but that a decision had yet to be made in relation to the payment of such treatment. In his most recent report, Mr Timms did not state that such a request had been made, in contrast to Dr Oludare who did make reference to such a request. Whatever the situation in respect of the funding request, Mr Thai has not yet undergone the injection.
37 Mr Thai said that he is never free of his ongoing lower back pain. He said the pain radiates into his buttocks and into his legs, particularly his right leg, such that the toes on his right foot go numb. He said the lower back pain fluctuates in severity and is made worse by sitting, standing or walking for long periods, bending, twisting or lifting. Mr Thai said that his lower back pain interferes with his sleep, in that it causes him to wake during the night and then causes him difficulties in getting back to sleep.
38 Mr Thai said that he often needs to lie down during the day due to his lower back pain.
39 Mr Thai continues to take Lyrica and Mobic on a daily basis. He takes approximately 10 Panadol Osteo a week. He said that he also takes Endone when his lower back pain is severe.
40 Mr Thai said that he sometimes plays the pokie machines, as he feels bored and depressed.
41 Mr Thai believes his lower back injury prevents him from working, and said that he would be continuing in his pre-injury duties at Toyota had he not suffered his injury.
42 In addition to his ongoing lower back pain, Mr Thai said he continues to suffer left shoulder pain. He said he is never free of the shoulder pain, but acknowledged that it is not as severe as his lower back pain. He said his left shoulder pain is made worse if he attempts to lift heavy weights, or if he moves his arm above his head or too far from his body. He said that the medication he takes for his lower back pain also assists with his left shoulder pain. Mr Thai also said his left shoulder pain is made worse if he sleeps on it, or knocks his shoulder.
43 Mr Thai’s wife, Ms Pham, provided an affidavit in support of Mr Thai’s claim. She said that Mr Thai’s ability to perform social and domestic activities had reduced after he suffered his left shoulder injury in 2008, and that his level of activity had further reduced after he suffered his lower back injury in October 2013. Ms Pham said that she now does all of the shopping and housework as Mr Thai is not really able to contribute, and that whilst she encourages Mr Thai to come shopping with her, he is unable to carry heavy bags. Further, Ms Pham confirmed that Mr Thai often wakes in the night complaining of pain in his shoulder and lower back, and that he then appears to be tired throughout the rest of the day.
Medical evidence in relation to Mr Thai’s left shoulder injury
44 Following his left shoulder surgery in October 2009, it appears that Mr Thai has received very little medical treatment. In cross-examination, Mr Thai accepted that he had not received any medical treatment for his left shoulder injury from the Toyota Medical Centre in the three years prior to suffering his lower back injury.
45 In his medical reports, Dr Middleton makes reference to Mr Thai undergoing left shoulder surgery, but makes no further reference to any ongoing complaints of left shoulder pain or need for medical treatment.
46 Further, Mr Thai’s current general practitioner, Dr Oludare, makes no reference to Mr Thai complaining of any left shoulder pain.
47 Mr Thai’s solicitors arranged for Mr Thai to be examined by orthopaedic surgeon, Mr Thomas Kossmann, in November 2016. In his report dated 2 November 2016, Mr Kossmann noted that Mr Thai had suffered “multiple injuries to his left shoulder joint” in the course of his employment. He considered that Mr Thai would continue to suffer from pain and movement restriction in his shoulder, and recommended conservative treatment with pain medication, anti-inflammatories, physiotherapy, hydrotherapy and possibly acupuncture. Mr Kossmann was of the opinion that as a consequence of his left shoulder injury, Mr Thai had no capacity to return to his pre-injury employment. However, I note that Mr Kossmann did not reconcile the basis of this opinion, with the fact that Mr Thai had resumed his pre-injury duties for more than three years after he returned to work following his left shoulder surgery.
48 Mr Thai’s solicitors also arranged for Mr Thai to be examined by occupational physician, Dr Robyn Horsley, in March 2017. In her report dated 9 March 2017, Dr Horsley noted that Mr Thai experienced “intermittent discomfort in the left and right shoulders”. She recorded that Mr Thai had complained that his left shoulder pain was 5 out of 10 at rest, and up to 7 out of 10 with activity.
49 On 3 February 2010, Toyota arranged for Mr Thai to be examined by occupational physician, Dr John Lange. At that time, it was noted that Mr Thai had improved following his shoulder surgery, but that he still reported the pain and discomfort in his left shoulder joint to be 4 - 5 out of 10.
50 On 9 February 2010, Dr Lange attended a worksite visit at Toyota in order to assess the duties Mr Thai had undertaken the previous day. Although in cross-examination Mr Thai denied that he had returned to work prior to this worksite assessment, given the detail contained within Dr Lange’s report, I accept it is probable, that Mr Thai had performed alternative duties the previous night. Dr Lange noted that Mr Thai complained of discomfort in his left AC joint, and recommended that Mr Thai remain on light duties for a period of time. He was of the opinion that Mr Thai would need two to three months before he could return to his pre‑injury duties and hours.
51 In November 2016, Dr Lange re-examined Mr Thai, and noted that he had a full range of movement in his left shoulder joint, with no wasting of the shoulder girdle musculature. Dr Lange recorded Mr Thai’s pain as being 6 out of 10, and noted that such pain was exacerbated by changes in the weather. He further noted that Mr Thai had hardly been able to use his left shoulder since having hurt his lower back.
52 Toyota also arranged for Mr Thai to be examined by orthopaedic surgeon, Mr Michael Polke, in April 2014. On examination, Mr Polke considered there to be some rotator cuff wasting with no local tenderness, and thought that Mr Thai exhibited a full range of left shoulder movements, with slight discomfort at limit. Mr Polke considered Mr Thai to have made a full recovery from his left shoulder injury.
Medical evidence in relation to Mr Thai’s lower back injury
53 Dr Middleton was of the opinion that Mr Thai suffered a prolapsed disc at L4/5, with lumbar instability and right L5 discogenic pain. As at 4 July 2014, Dr Middleton considered that Mr Thai’s lower back injury incapacitated him for his pre‑injury duties or any suitable duties available to him at Toyota.
54 Dr Middleton prescribed Voltaren, Panadol Osteo and Lyrica and recommended that Mr Thai attend physiotherapy.
55 Since January 2016, Dr Oludare has provided Mr Thai with Certificates of Capacity which state that he is unfit for duties. In his most recent Certificate dated 17 March 2017, Dr Oludare stated that the following physical restrictions apply to Mr Thai:
·can sit with modifications, can stand/walk with modifications;
·cannot bend;
·cannot squat;
·can kneel with modifications;
·can reach above shoulder;
·cannot lift;
·can move head.
56 Dr Oludare currently prescribes Lyrica, Mobic, Deptran and Endone for Mr Thai. In his most recent report dated 23 April 2017, Dr Oludare noted that Mr Thai continues to experience lower back pain with referred pain into his right leg, and that he complains of numbness and weakness in his right leg. It was noted that Mr Thai is unable to stand for more than 15 minutes, sit for more than 45 minutes, or squat or lift weights. Dr Oludare also noted that Mr Thai complained of poor sleep, secondary to the ongoing pain, despite taking maximum doses of pain medication. Dr Oludare recommended that Mr Thai continue to manage his pain with physiotherapy and pain medication.
57 Mr Timms provided two medical reports in this matter. In his most recent report dated 10 April 2017, Mr Timms was of the opinion that Mr Thai suffered lumbar stenosis at L4 and L5, plus facet joint arthropathy, predominantly causing lateral recess stenosis. He considered the stenosis and disc bulge at L4/5 to be the cause of Mr Thai’s back pain, right leg sciatica, right leg weakness and sensory deficit. Mr Timms recommended that Mr Thai undergo an epidural injection, and in the alternative, that he undergo a surgical decompression in the form of a lumbar laminectomy at L4/5.
58 Mr Timms was of the opinion that Mr Thai had no capacity for his pre‑injury duties and noted that “as his symptoms have worsened I suspect that he remains completely incapacitated.”
59 Mr Kossmann also examined Mr Thai in relation to his lower back pain. He considered that Mr Thai suffered from discogenic and mechanical back pain on the basis of widespread degenerative changes in his lumbar spine, with minor disc bulging at L2/3, L3/4, L4/5 and L5/S1 levels, and mild central canal stenosis at L4/5 and L5/S1 levels. Mr Kossmann was of the opinion that as a consequence of his lower back injury, Mr Thai has no capacity for work. He noted that Mr Thai was unable to walk for long distances, on uneven ground, up and down stairs, on inclines and declines, and that he was also unable to climb up and down ladders, to kneel, squat or carry heavy items weighing more than five kilograms.
60 Dr Horsley also examined Mr Thai’s lower back and was of the opinion that he suffers from mechanical back pain with referred right leg pain. She noted that the most recent MRI scan demonstrated a mild diffuse disc bulge at L4/5.
61 Dr Horsley was of the opinion that as a consequence of Mr Thai’s lower back injury, he should be subject to the following work restrictions:
·avoidance of repetitive over-reaching;
·avoidance of repetitive pushing and pulling;
·avoidance of working in awkward and confined spaces;
·good manual handling technique, even when lifting light items;
·avoidance of lifting items greater than 10 to 12 kilograms except on an occasional basis;
·avoidance of lifting items up to 5 to 8 kilograms on a repetitive basis;
·good manual handling technique, even when lifting light items.
62 Further, Dr Horsley noted the following functional tolerances:
·sitting tolerance of 30 minutes;
·a walking tolerance of 10 to 15 minutes;
·a negligible static standing tolerance;
·a dynamic standing tolerance of 15 minutes; and
·a driving tolerance of 45 minutes.
63 Dr Horsley was of the opinion that if Mr Thai was to participate in a pain management program, any resulting improvement in his functional tolerances may permit him to work 15 to 20 hours per week in suitable employment.
64 In November 2016, Dr Lange examined Mr Thai in respect of his lower back injury. In his report dated 9 November 2016, Dr Lange considered that Mr Thai had evidence of mild L4/5 canal stenosis due to a disc lesion with a mild right paracentral disc protrusion and mild bilateral facet joint hypertrophy. It was also noted that he had an anterior L3/5 annular fissure.
65 Following a further examination in March 2017, Dr Lange was of the opinion that Mr Thai had a capacity to undertake light physical work, with a lifting limit of five kilograms and the avoidance of repetitive bending. Dr Lange considered that Mr Thai had the capacity to work as a light process worker or car park attendant for 20 hours a week, with a view to increasing such hours over a six month period until he was able to work full-time.
66 In a supplementary report dated 17 May 2017, Dr Lange stated that in his opinion, Mr Thai had the capacity to work as a courier driver, pick packer, Uber driver or product assembler. He again expressed his belief that Mr Thai could commence working 20 hours a week with a view to increasing to full-time hours within six months.
67 Toyota also arranged for Mr Thai to be examined by neurosurgeon, Dr Graeme Brazenor, in October 2016. Dr Brazenor accepted that Mr Thai had suffered an injury to his lower back during the course of his employment, but doubted whether Mr Thai suffered more than “very mild occasional low back pain”. Dr Brazenor was of the opinion that Mr Thai could return to full-time work through to normal retirement age, provided such work did not involve repeated bending at the waist, repeated accessing of levels less than 600 millimetres above floor or ground, or the lifting of weights in excess of five kilograms. Dr Brazenor considered that Mr Thai could walk, sit and drive without restriction.
68 In a supplementary report dated 21 March 2017, Dr Brazenor stated that in his opinion, Mr Thai would be able to work as a crossing supervisor and car park attendant, but did not consider an automotive body shop production worker or light process worker to be suitable employment
69 In a further supplementary report dated 8 May 2017, Dr Brazenor stated that in his opinion, Mr Thai was capable of working as a courier, Uber driver or product assembler, provided such work did not involve bending at the waist or the repetitive accessing of levels less than 600 millimetres above floor or ground. Dr Brazenor did not consider work as a pick packer of light weight articles to be suitable for Mr Thai.
70 Dr Brazenor also stated that he disagreed with the recommendation of Mr Timms, that Mr Thai undergo an epidural steroid injection or surgery. Dr Brazenor was of the opinion that such treatment was contraindicated, in circumstances where he considered that Mr Thai’s lumbar spine was within the normal limits of a 48 year old man.
Vocational assessment reports
71 Toyota relied upon two vocational assessment reports prepared in this matter.
72 The first report, dated 10 December 2013, was prepared by Recovre following an assessment of Mr Thai in November 2013. It listed the following jobs as suitable for Mr Thai:
(i)automotive body shop production worker;
(ii)light process worker;
(iii)car park attendant;
(iv)crossing supervisor.
73 The second report, dated 30 April 2017, was produced by CoWork, and prepared by occupational therapist, Ms Jakovljevic. It listed the following jobs as suitable for Mr Thai:
(i)courier;
(ii)pick packer;
(iii)Uber driver;
(iv)product assembler.
74 Ms Jakovljevic formed the opinion that such jobs were suitable, based upon her assessment of the numerous medical reports with which she was provided, and the medical restrictions detailed therein. However, I note that Ms Jakovljevic did not have Mr Thai’s current Certificate of Capacity from Dr Oludare or the report from Mr Timms in relation to Mr Thai’s work capacity.
Mr Thai’s reliability as a witness
75 Toyota alleged that Mr Thai was an unreliable witness, who understated his level of English speaking skills, and exaggerated his levels of pain and restriction. Toyota further alleged that Mr Thai has been unmotivated to obtain any further employment after accepting a redundancy package in 2016.
76 Mr Thai denied having a good grasp of English and said that he can only speak broken English. I accept that his level of comprehension and understanding is basic, and that he is also limited in his ability to read and write. I accept that he was able to successfully participate in a behaviour based interview, held in a group setting, at the time he commenced his employment with Toyota, on the basis he copied the answers of the person sitting next to him.
77 Whilst working at Toyota, I am satisfied that Mr Thai could understand basic instructions when given in English, but that many of his co-workers spoke with him in Vietnamese.
78 Mr Thai gave his evidence through a Vietnamese interpreter, for which I make no criticism. I appreciate that even a person who appears to have a good command of English in ordinary conversation, may have difficulty understanding the more formal language of the court room, and that their fluency and comprehension may be further compromised when placed in a stressful situation.[1]
[1]Chala Sani Abdula v The Queen [2011] NZSC 130; [2012] 1 NZLR 534
79 Toyota relied upon video surveillance taken of Mr Thai on seven days from 4 July 2015 until 6 March 2017. Toyota also admitted that Mr Thai had been the subject of video surveillance on 16 days throughout that period.
80 One section of the video surveillance showed Mr Thai collecting a friend at the airport, and then subsequently waiting to meet another friend. Whilst waiting on the side of the road, Mr Thai briefly squats whilst smoking a cigarette. The three then go to a restaurant to see other friends. A further section of the surveillance shows Mr Thai at the shopping centre with his wife, as well as talking to people on the street. On one occasion, Mr Thai plays the pokies for a period of approximately 50 minutes, during which time he stood up briefly on three occasions. Whilst sitting to play the pokies, Mr Thai moves frequently in his seat, and shifts, crossing and uncrossing his legs. A further section of the surveillance shows Mr Thai bending forward to look at items of hard garbage waste in the process of moving such an item.
81 On 6 March 2017, Mr Thai can be seen talking to a friend in the street. He appears to be scratching the front of his legs, and moving from side to side. Mr Thai sought to explain this action on the basis that it was an exercise he had been taught to alleviate his lower back pain. Ms Forbes submitted that such evidence stretched the boundaries of credibility. In my opinion, the video surveillance is not clear enough to ascertain the precise nature of Mr Thai’s activity. In any event, I do not consider such an innocuous action to be of significance.
82 On two separate occasions, Mr Thai can be seen to squat. He did so relatively slowly and for a short period of time. In my opinion, this was consistent with the evidence Mr Thai previously gave in cross-examination, that he is able to squat.
83 Ms Forbes submitted that I should have reservations in relation to Dr Oludare’s opinion that Mr Thai cannot squat, in circumstances in which the video surveillance appears to demonstrates that he can. However, given squatting is not a key component in any of the work activities identified in the vocational assessment reports, the relevance of such an opinion seems to be of marginal significance.
84 The video surveillance captures a very short snapshot of Mr Thai’s activities over the last two years. I did not consider any of the actions evident on the surveillance to be inconsistent with his sworn evidence, nor to demonstrate a capacity to undertake vocational duties.
85 Mr Thai demonstrated himself to be a hard-working employee of Toyota. After recovering from shoulder surgery, he returned to work and performed normal duties for over three years. When he injured his lower back in October 2013, he initially had time off work, before eventually returning on light duties and reduced hours. However, as his symptoms worsened, Mr Thai ultimately ceased work and then later accepted a voluntary redundancy package. Mr Timms accepted that Mr Thai suffered increased lower back symptoms in early 2016, and was of the opinion that he has no capacity for work. I note that Dr Oludare is of the same opinion.
86 I accept that Mr Thai had a strong work ethic, and that he has not exaggerated his level of pain and disability. I make no criticism of Mr Thai for his failure to obtain employment, as I consider this to be consistent with the medical advice he has received.
87 Overall, I accepted Mr Thai as a reliable, motivated and creditworthy witness.
Mr Thai’s claim for loss of earning capacity as a consequence of his lower back injury
88 To succeed in his application, Mr Thai bears the onus of satisfying me that as at the date of hearing, that as a consequence of his lower back injury, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Mr Thai is capable of earning, whether in suitable employment or not.
89 The definition of “suitable employment” is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[2]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [25] and [28]
90 In undertaking this task, I must compare what Mr Thai is capable of earning in suitable employment, with his pre‑injury earning capacity. To determine his pre‑injury earning capacity, I must decide which of the following scenarios most fairly reflects his earning capacity, had he not suffered the injury:
(a)the gross income he was earning from personal exertion; or
(b)the gross income he was capable of earning from personal exertion; or
(c)the gross income he would have earned from personal exertion; or
(d)the gross income he would have been capable of earning from personal exertion,
during that part of the period within three years before and three years after the injury.
91 In The Herald & Weekly Times Ltd & Anor v Jessop,[3] the Court of Appeal stated that the Court needs to consider which of the four alternative scenarios most fairly reflects the plaintiff’s earning capacity, had the injury not occurred.[4]
[3][2014] VSCA 292
[4]Paragraph [42] – [44]
92 Mr Thai earned the following income in the three financial years prior to suffering his lower back injury:
Financial Year Gross Income 1 July 2010 to 30 June 2011 $79,968 1 July 2011 to 30 June 2012 $80,989 1 July 2012 to 30 June 2013 $79,907
93 It was agreed between the parties, that pursuant to Toyota’s EBA, its employees received an 11.25 per cent wage increase between 30 June 2013 and 30 June 2016.
94 Mr Mighell submitted that based upon Mr Thai’s gross income of $79,907 in the financial prior to suffering his lower back injury, and with an 11.25 per cent EBA wage increase, then if not for his lower back injury, Mr Thai would have earned $88,896 gross per annum within three years. If accepted, this equated to a gross weekly figure of $1,709.53.
95 Ms Forbes submitted that Mr Thai had led no evidence in relation to the probable continuation of overtime in the three years after suffering his back injury, and that it was impermissible to simply add the 11.25 per cent increase to Mr Thai’s gross income as at 30 June 2013.
96 Toyota tendered earnings figures for two unidentified employees from the period 1 July 2007 until 14 June 2017. Ms Forbes submitted that these two employees had earned relatively similar total gross incomes to Mr Thai in the financial year ending 30 June 2013. That gross income had comprised an ordinary pay rate of $56,682.49, with additional sums for overtime and shift allowances. Since June 2013, those two employees had received regular increases in their ordinary pay and shift allowances, but there had been a reduction in their income from overtime. As at 30 June 2016, taking into account the reduced overtime, one employee’s gross annual income was $78,540.36 and the other’s was $80,004.46. Ms Forbes therefore submitted that $80,000 should be considered the figure which most fairly reflects Mr Thai’s without injury earning capacity. If accepted, this equated to a gross weekly figure of $1,538.46.
97 In circumstances where the wage details of the two Toyota employees were not agreed as comparable, and where no evidence is before me as to which section they worked in or their ability and desire to obtain overtime from 2013 to 2016, I gain no assistance from this document.
98 In circumstances where Mr Thai had earned approximately $80,000 per annum, including his ordinary pay, shift allowances and overtime, in the three years prior to suffering his lower back injury, and in circumstances where it is accepted that an 11.25 per cent increase was given to employees at Toyota in the subsequent three year period, I accept that the figure which most fairly reflects Mr Thai’s without injury earning capacity is $88,896.
99 In reaching this figure, I consider it relevant that Mr Thai persisted to work normal duties and to undertake regular overtime after suffering his left shoulder injury, for three years up until the time he suffered his lower back injury. I consider this to be consistent with his evidence that he enjoyed his work, and to be further demonstrative of his willingness to work. In such circumstances, I accept that if not for his lower back injury, it is likely Mr Thai would have continued to work similar hours, and that he would then have gained the maximum benefit of the 11.25 per cent EBA wage increase.
What is Mr Thai capable of earning in suitable employment?
100 In assessing Mr Thai’s claim for loss of earning capacity, I am obliged to do so realistically, by reference to his physical limitations and by reference to what might or might not amount to “suitable employment” in the foreseeable future.[5] This is a test of physical capacity, not employability, and it involves a consideration of what Mr Thai might, in the foreseeable future, be able to do on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after undertaking vocational education.[6]
[5]Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188 at [48]
[6](ibid) at [49]
101 Mr Thai is 49 years of age. He has lived in Australia for over 20 years, he speaks only basic English and he has a limited ability to read or write in English. Mr Thai received only a basic education in Vietnam. He does not have any trade qualifications, and has only ever done process work in Australia.
102 I accept that Mr Thai struggled with lower back pain when he worked 20 hours a week, on light duties at Toyota. I accept that he ceased such work in January 2016, as his symptoms had worsened. I am satisfied that he took the redundancy package as a consequence of his ongoing lower back pain.
103 The doctors accept that as a consequence of his lower back injury, Mr Thai cannot return to his pre‑injury duties. The issue for me to determine is what, if anything, he is capable of earning in suitable employment.
104 Dr Oludare, Mr Timms and Mr Kossman each consider Mr Thai to be incapacitated for all work.
105 Dr Horsely noted a range of restrictions and functional tolerances, and said that with some improvement, he could theoretically work up to 15 to 20 hours per week.
106 Dr Lange considered that Mr Thai could undertake the alternate jobs identified by Ms Jakovljevic, initially for 20 hours a week, with a view to increasing to full-time hours, after a period of “adaption and work hardening”. Dr Lange did not explain why he considered it likely that Mr Thai would be able to increase to full-time hours, when he had not been able to increase beyond 20 hours in the six month period leading up to January 2016.
107 Associate Professor Brazenor considered Mr Thai was able to work on a full-time basis as a courier, Uber driver and product assembler of small parts. However, I gain little assistance from Associate Professor Brazenor’s opinion, in circumstances in which he doubted that Mr Thai suffered more than very mild occasional lower back pain. I do not accept this observation to be consistent with what I accept is the current situation. Further, similarly to Dr Lange, Associate Professor Brazenor failed to explain why he considered it likely Mr Thai could work full-time hours, when he had not been able to cope working 20 hours.
108 I am satisfied that Mr Thai’s lower back pain is constant, and that it fluctuates in severity. I accept that, despite the use of relatively strong pain killing medication, Mr Thai needs to lie down and rest most days, and that his sleep is interfered with. I accept that Mr Thai’s lower back pain is aggravated by bending and lifting, as well as prolonged sitting, standing and walking.
109 I accept that Mr Thai’s lower back pain, and the associated restrictions, are such that it would be very difficult for him to obtain and hold down regular employment. I consider his pain levels, the interference with his sleep, and his need to sit and stand at regular intervals, would make it difficult for him to be a reliable employee.
110 For the reasons detailed above, I do not accept the opinions of Associate Professor Brazenor or Dr Lange that Mr Thai can work full-time hours.
111 It may be the case that Mr Thai is totally incapacitated for all employment. Considering the totality of the evidence, I believe the most optimistic assessment of his work capacity, is that he could perform suitable employment for up to 20 hours per week. Such an assessment is beyond that which Dr Oludare, Mr Timms and Mr Kossman recommend, but seems consistent with the opinions of Dr Horlsey and Dr Lange. If Mr Thai was able to obtain and hold down any of the jobs identified by either Recovre or Ms Jakovljevic, and in so doing, was able to work a maximum of 20 hours per week, he would still suffer the requisite 40 per cent loss, on either of the without injury earnings figures put before me.
112 In these circumstances, I am not satisfied that Mr Thai has a capacity for suitable employment, such that he would earn in excess of $923 per week. I am satisfied that this is the position now, and that this incapacity will remain for the future and be permanent. Accordingly, Mr Thai has suffered the requisite loss of 40 per cent.
113 Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the ‘very considerable’ test.[7] Given my acceptance that the plaintiff’s injury restricts him to at best, only part-time work, the pecuniary disadvantage to him is so great, that I consider his loss of earning capacity can be described as very considerable.
[7]s134AB(38)(c)
114 As the plaintiff has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his lower back injury, it is not necessary for me to consider separately his pain and suffering consequences.[8]
[8] Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
115 I am satisfied that the plaintiff suffers a serious injury to his lower back, arising as a consequence of his employment with the defendant, and the consequences are such that he should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
Can the consequences to Mr Thai’s left shoulder injury be described as at least very significant?
116 To succeed in his case, Mr Thai must satisfy me, on the balance of probabilities, that the impairment he claims to suffer to his left shoulder is serious and permanent, and that such impairment was caused by the work incident.
117 Mr Thai cannot aggregate any consequences of his lower back with his left shoulder injury. The consequences of each injury must be considered separately.[9]
[9]Philippiadis v Transport Accident Commission [2016] VSCA 1 at [24]
118 The test is subjective, in that it is the effect on the individual plaintiff that must be considered. However, that determination must be made by me objectively, in considering the seriousness of the impairment. In considering whether or not Mr Thai’s left shoulder impairment is “serious”, the consequences must, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.
119 In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon[10], Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, regard should be had as to what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the pain; and what the objective evidence demonstrates about the disabling effects of the pain.
[10]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
120 After Mr Thai recovered from his shoulder surgery, and returned to his pre-injury duties, he did not require any further medical treatment for his left shoulder injury. There is no recorded complaint of left shoulder pain to either Dr Middleton or Dr Oludare.
121 I note that whilst Mr Thai recently reported increased levels of pain in his left shoulder to Dr Lange, there is no objective support or explanation for any such increase in pain.
122 Mr Thai now takes daily medication, however, such medication is for his lower back pain, and happens to indirectly benefit his left shoulder pain. Dr Horsley obtained a history from Mr Thai that in the three years he performed his pre-injury duties between March 2010 and October 2013, he occasionally took Panadol. I consider this is reflective of a relatively modest level of pain in circumstances in which Mr Thai was undertaking normal duties.
123 I note Dr Horsley recorded that Mr Thai now has only occasional discomfort in his left and right shoulders.
124 I further note that the video surveillance did not appear to demonstrate any apparent restriction of movement in Mr Thai’s left shoulder.
125 In looking at only his left shoulder injury, I accept that Mr Thai suffers some pain in his non-dominant arm, but I am not satisfied that the consequences of the injury can be described as more than significant or marked.
126 In such circumstances, I am not satisfied the plaintiff suffers a serious injury to his left shoulder and I dismiss his application.
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