Vaughan v Alcoa Portland Aluminium Pty Ltd
[2021] VCC 55
•3 February 2021
| IN THE COUNTY COURT OF VICTORIA AT GEELONG COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05059
| PETER THOMAS VAUGHAN | Plaintiff |
| v | |
| ALCOA PORTLAND ALUMINIUM PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 29 July 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 3 February 2021 | |
CASE MAY BE CITED AS: | Vaughan v Alcoa Portland Aluminium Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 55 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – left foot injury – paragraph (a) of the definition of “serious injury” – concession made by the defendant that the plaintiff is entitled to bring common law proceedings in relation to pain and suffering – issue as to whether plaintiff should have leave to bring common law proceedings for “pecuniary loss” damages – the extent to which the plaintiff is capable of performing “suitable employment” – whether the plaintiff discharges his onus
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Acir v Frosster Pty Ltd [2009] VSC 454; Hunter v Transport Accident Commission [2005] VSCA 1; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Richter v Driscoll [2016] VSCA 142
Judgment: Leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages for a left foot injury which occurred during the course of his employment with the defendant on or about 17 February 2017.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab with Mr A Saunders | Maurice Blackburn |
| For the Defendant | Mr S A Smith QC with Ms K M Manning | Hunt and Hunt |
HIS HONOUR:
1 By way of Originating Motion, Peter Vaughan (“the plaintiff”) seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (as amended) (“the Act”) to bring common law proceedings for a left foot injury (“the injury”) which occurred during the course of his employment with Alcoa Portland Aluminium Pty Ltd (“the defendant”) and in particular, on 17 February 2017.
2 The plaintiff seeks leave to bring proceedings for “pain and suffering” damages and “pecuniary loss” damages within the meaning of s325(1) of the Act in respect of the injury. Before the matter was opened, Senior Counsel for the defendant announced that it was conceded that the plaintiff could have leave to issue common law proceedings for “pain and suffering” damages in respect to the injury.
3 The plaintiff was the only witness to give evidence and be cross-examined. Both parties tendered a number of documents.[1]
[1]Refer to Annexure “A”
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.[2]
[2]See s335(5)(a) of the Act
5 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act. That paragraph reads:
“‘serious injury’ means—
(a) permanent serious impairment or loss of a body function;
… .”
6 The part of the body said to be impaired for the purposes of paragraph (a) is
7 the left foot.
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the “injury” arose out of, or in the course of, or due to the nature of his employment with the defendant on or after 1 July 2014;[3]
(b)the “injury” and the resulting impairment under paragraph (a) of the definition of “serious injury” must be “permanent”; that is, “permanent in the sense that it is likely to last for the foreseeable future”;[4]
(c)the “consequences” to the plaintiff of the injury under paragraph (a) of the definition of “serious injury” in relation to “pain and suffering” or “pecuniary loss” must be “serious”; that is:
“… when judged by comparison with other cases, in the range of possible impairments or … as the case may be [can be] fairly described as being more than significant or marked, and as being at least very considerable.”[5]
[3]See s1 of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
[4]See s325(2)(b) of the Act
[5]See s325(2)(b) and s325(2)(c) of the Act
9 Section 335(3) of the Act provides that the consequences of an injury and the impairment in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that the worker satisfies subparagraph (i) of s325(2)(b) but not subparagraph (ii) of that subsection, he or she is entitled to bring proceedings in accordance with s335(2)(d) of the Act for the recovery of damages for “pain and suffering” only. A worker who satisfies the loss of earning capacity requirements under s325 of the Act is entitled, as a “matter of statutory construction”, to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss damages”.[6]
[6]See Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60]-[64]; Acir v Frosster Pty Ltd [2009] VSC 454
10 As I have already recorded, there is no issue in this proceeding that the plaintiff is entitled to bring common law proceedings in relation to his left foot injury for “pain and suffering” damages. Accordingly, there can be no dispute as to the left foot injury being compensable. It is also to be noted that the Act requires, in relation to pecuniary loss – which is in dispute in this matter – that it is also necessary that the pecuniary loss:
“… when judged by comparison with other cases, in the range of possible impairments … as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
11 It is to be noted that in relation to establishing the right to claim loss of earning capacity, the Court must not grant leave to a worker under s335(2)(d) on the basis that the worker has established a loss of earning capacity required by s325(2)(c) unless the worker also establishes, in relation to the requirements of paragraphs (c) and (d) of s325(2) of the Act, that:
(a)as at the date of the hearing of an application under s335(2)(d) of the Act, the worker has a loss of earning capacity of 40 per cent or more measured subject to certain irrelevant circumstances (as set out in s325(2)(f) of the Act);[7] and
(b)the worker will, after the date of the hearing, continue to permanently have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[8]
[7]See s325(2)(e)(i) of the Act
[8]See s325(2)(e)(ii) of the Act
12 Section 325(2)(h) of the Act provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
13 Section 325(2)(i) of the Act provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
14 Section 325(2)(j) of the Act provides that the assessment of “serious injury” must be made at the time that the application is heard by the Court subject to some irrelevant exceptions. The Court must give reasons that disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application.[9]
[9]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[26]
The issues
15 When queried as to what were the issues in this matter, Counsel for the defendant informed the Court that although it was accepted the plaintiff was incapable of performing pre-injury employment, he was capable of performing “suitable employment” within the meaning of the Act. In this respect, Senior Counsel for the defendant informed the Court that it was agreed that the so-called “without injury” earnings of the plaintiff were $116,551. In this respect, it was common ground that it was for the plaintiff to discharge his onus to establish that he was incapable of earning more than 60 per cent of the “without injury” earnings. Sixty per cent of the “without injury” earnings amounted to $69,930 per annum or, accordingly, $1,344 per week.
16 Mr Smith informed the Court that it would be the case of the defendant that the plaintiff was capable of performing work as a full-time sales representative, safety inspector and TAFE educator, all of which would generate more than $69,930 per annum.
The evidence of the Plaintiff
17 The plaintiff relies on his affidavits sworn on 4 June 2019[10] and on 5 February 2020.[11] During his evidence-in-chief, the plaintiff deposed that he had read both affidavits before coming to Court on that day, and was satisfied that the contents of the affidavits were true and correct.[12]
[10]See exhibit 1 at page 1 PCB
[11]See exhibit 1 at page 16 PCB
[12]Transcript (“T”) 13, Line (“L”) 9-12
18 In his first affidavit, the plaintiff deposes that he is forty-eight years old (born January 1973) and lives by himself. He has two daughters from previous relationships.
19 The plaintiff was born in Heywood and attended the equivalent of Year 10 at the Heywood High School. On leaving school, he has always relied on his ability to undertake manual work to obtain a living – occupations have included being a firefighter, chainsaw operator, truck driver, fibreglasser, panel beater and labourer on the wharf. He also cared for his mother for a number of years when she was suffering from cancer.
20 On 5 May 2008, the plaintiff commenced employment with the defendant at the Portland Smelter, working full time on rotating twelve-hour shifts. In particular, he was employed as a potroom operator and his duties involved crane operation, tapping metal, potroom maintenance, data entry, shovelling, use of jackhammers and crowbars. The work undertaken was in hot and dirty circumstances.
21 On 17 February 2017, the plaintiff was required to remove an aluminium slab that had set in the pot as a result of a power failure in December 2016, resulting in aluminium setting in a large number of pots. His task was to loosen the aluminium slab for it to be lifted out.
22 On that day, various workers were trialling lifting lugs to lift out the aluminium slabs and it was necessary to use a jackhammer on an excavator to loosen the edges of the aluminium from the pot shell. This resulted in there being a lot of debris and rubble on top of the aluminium slab. There was a large step down to the slab and as the plaintiff was stepping onto the slab to remove lifting lugs, the surface of the slab that he stepped on shifted, causing him to roll on his left ankle.
23 After the injury, the plaintiff attended the nurse onsite, who applied an icepack and compression bandage, and later, he was taken to the Portland District Hospital, where he underwent x-rays and was initially told there was no fracture. However, subsequently, he was told that he had suffered a fracture in two places. His left ankle was immobilised in a plaster backslab and he was sent home from hospital, during which time he increasingly suffered from pain and swelling in the foot and the ankle.
24 The plaintiff attended the Ballarat Base Hospital and underwent further investigations by way of an x-ray and ultrasound, and also an MRI scan was undertaken on 6 March 2017.
25 The plaintiff records in his affidavit the findings of the MRI scan, which are:
“1. No acute fracture but there is probable minor bone contusion at the lateral aspect of the talus.
2. Rupture of the ATFL with strain and probable tears of the fibula insertion of CFL. Syndesmosis is in tact (sic).
3. Partial tears of the deep fibres of deltoid ligament on the background of chronic enthesopathy.
4. Distal tibialis posterior tendinosis and possible tenosynovitis with extensor digitorum longus tenosynovitis. No discrete tendon tear visualised.
5. Chronic Achilles tendinitis.”[13]
[13]See exhibit 1 at page 11 Plaintiff’s Court Book (“PCB”)
26 The plaintiff was referred to the orthopaedic surgeon, Mr Scott Mason, who, on 17 May 2017, performed surgery on the left ankle which involved a left ankle arthroscopy, reconstruction and ligament stabilisation.
27 After the surgery, the plaintiff underwent physiotherapy treatment but continued to suffer from pain on the inside of his foot and also suffered from a clicking sensation.
28 The plaintiff underwent an ultrasound-guided injection of cortisone, which failed to improve any symptoms.
29 Ultimately, the plaintiff underwent further surgery on 15 March 2018 and he understands that such surgery involved a calcaneal osteotomy with internal fixation, repair of the right tibialis and tendon debridement. After the surgery, his ankle was initially placed in a plaster cast and later, into a moonboot, and he was non weightbearing for about two months. When the foot and ankle were removed from the moonboot, he commenced physiotherapy treatment until about February 2019.
30 After suffering injury, the plaintiff did undertake a return to work program, however, he was not able to return to work after the second operation and his employment was terminated in about May 2019.
31 At the time of swearing his first affidavit, the plaintiff deposes:
· He continues to suffer from constant pain in the left ankle region, with the pain worse on the inside of his ankle.
·His ability to stand or walk for long periods is now restricted, and such activity causes him worse pain.
·He wears a brace on his ankle when walking around to stabilise the ankle.
·Movement of his ankle is restricted and stiff.
·His ability to walk over rough and uneven ground or up and down stairs or ladders is limited.
·His sleep is poor and he finds it difficult to fall asleep and he is often woken with pain during the night.
·His ability to do household chores and gardening is now restricted.
·Prior to suffering his left ankle injury, his main interest outside of work was hot rods and his “pride and joy” was a 1949 Chevrolet which he restored and maintained. He also enjoyed driving a motorbike. He notes that his ability to undertake these activities is now very restricted.
32 As a result of suffering his left foot injury, he has increasingly become depressed, anxious and frustrated. He also attends a chiropractor, who gives him acupuncture, and he continues to take strong painkillers such as Tramadol, and has also been prescribed Effexor.
33 As a result of suffering injury, he has not been able to return to work and his employment with the defendant has been terminated, which devastated him. The plaintiff deposes that he was earning about $114,000 per annum and he planned to work in his job until retirement.
34 The plaintiff considers that given the extent of his incapacity, his age, education and place of residence, he is now unfit for suitable employment and this upsets him greatly as he is only forty-six years old.
35 By way of his second affidavit, the plaintiff deposes that there has been no real change in his medical treatment since the swearing of his first affidavit – he now attends his general practitioner, Dr Bashour, as Dr Das has retired, and has also attended a chiropractor for dry needling. His medication is “much the same” and he continues to take Tramadol and Effexor, and although he tried Lyrica, it did not help and just “fogged my brain”.
36 The plaintiff also continues to wear an ankle brace outside the house and has tried to use a stick for a period too but it did not help much and it stirred up his back.
37 The plaintiff deposes that there has been no real change in his condition since his first affidavit and he continues to suffer chronic left ankle pain, along with the other difficulties – especially relating to mobility. However, he had begun to experience some backpain because of the way he walks, as he has a limp.
38 On an average day, the pain in his ankle is bad and on a bad day, it can be excruciating. He notes that the ankle is very vulnerable and he has to be very careful not to aggravate it. Even being careful, the more he does the worse his ankle is. Accordingly, he has periods of excruciating pain at least every couple of days.
39 The plaintiff also deposes that the medication that he takes “knocks me around a bit”, and although he can function (with the exception of Endone which he found it difficult to function), his medication generally “fogs the brain”, causing him to have difficulty concentrating, which in turn affects his mood.
40 The plaintiff notes that as a consequence of his left foot injury, he remains unable to do a number of things and has difficulty with a range of others as set out in his first affidavit. He does wish to clarify that his love of cars extended to going to hot rod shows where he went regularly and on occasion, travelled interstate. He no longer goes because it is too hard on his feet. He does note that he used to do some work on cars but much less, for example his Chevrolet only has a week’s work left in it, but it would take over six months for him to do. He no longer rides full-sized motorbikes and has sold his bike.
41 The plaintiff also finds driving cars difficult, especially manual cars.
42 The plaintiff has not worked since the previous affidavit and more recently, the defendant sent him to an occupational rehabilitation provider, Recovre, which helped him look for work but with no success. Recovre then involved the plaintiff in a basic IT course, which improved his computer skills but he doubts that he could work in an office as he is very limited in what he can do with a computer. (Furthermore, he notes that he is not suited to office work generally).
43 More recently, the plaintiff started two Certificate IV courses: one in OHS and one in training and assessment, which were again arranged by Recovre. Such courses run for about twelve months (part time) and he notes that he is on track – at this stage – to finish them in mid 2020. The plaintiff notes that although he hopes to finish the courses, he is struggling – especially with the computer and paperwork side of things.
44 The plaintiff also struggles with the training and assessment course itself which is all day at TAFE (the OHS course itself is online and he can work when he wants and rest when he wants when he has to). After a day of that he has to rest overnight and he is no good the next day.
45 The plaintiff notes that if he does pass the courses he would then be qualified to be a trade teacher or a WorkSafe inspector. In particular, the plaintiff deposed the following:
“24While I would be hopeful that I could, perhaps, work as a trade teacher, I doubt that I could do it full-time; I would, I believe, be limited to, say, three days per week.
25In short, I could not be on my feet long enough to work fulltime; I would need long breaks. Simply put, I need to rest and raise my leg regularly.
26So, too, I would not be able to work as a WorkSafe inspector fulltime - for the same reasons.
27In any event, the more I think about it, the more I think that I could not be a WorkSafe inspector for two reasons; one, I could not go to accident sites and, say, climb ladders or walk on uneven ground, and; two; I doubt - realistically whether I am suited that role (or other work for that matter); the report writing would likely be beyond me (now that I am into the course, I now know better what is involved).
28Otherwise, my solicitors have told me that Recovre has suggested that I would be fit to do one of the following jobs: forklift driver, storeperson, truck driver, sales representative, disability support worker or safety inspector.
29I do not, however, believe that I could work as a forklift driver, storeperson, truck driver; such work would be too hard on my ankle (as, I add, would be my pre-injury duties).
30For much the same reasons, I do not believe that I could work as a disability support worker, either. I would not be able to provide the necessary physical assistance (nor could I work as a safety inspector, for the reasons set out above).
31Finally, I do not believe that I could work as a sales representative - for a number of reasons: if there was much driving, I could not do it, and if there was any lifting, I would struggle; more particularly, I am not a salesman. I have never worked in sales, and I do not believe that I am suited to such work.”[14]
[14]See exhibit 1 at page 20 PCB
The radiology
46 The plaintiff has undergone various investigations and scans in relation to his left ankle injury. These include:
(a)On 1 March 2017, a left ankle ultrasound. The radiologist, Dr Usher, reported:
“The ankle is grossly swollen impairing ultrasound assessment. The anterior extensor tendons are intact. There is a join effusion. Peroneus longus and brevis are intact. I cannot see the ligaments of the lateral compartment well, similarly the deltoid ligament is not well seen.
IMPRESSION
Difficult ultrasound due to the extent of swelling. I cannot exclude any significant ligamentous injury. I recommend progression to MRI.”[15]
(b)On 6 March 2017, an MRI scan of the left ankle. I will not repeat the radiologist’s findings as they are set out in the first affidavit of the plaintiff.[16]
[15]See exhibit 2 at page 40 PCB
[16]See exhibit 1 at page 11 PCB
The medical treatment undertaken by the Plaintiff
47 The plaintiff relies on the following medical reports from his treating orthopaedic surgeon, Mr Scott Mason, dated 19 April 2017,[17] 30 January 2018[18] and 8 May 2018.[19]
[17]See exhibit 3 at page 62 PCB
[18]See exhibit 3 at page 63 PCB
[19]See exhibit 3 at page 63 PCB
48 Initially, Mr Mason notes that the plaintiff, when working for the defendant, had sustained a significant inversion injury to his left ankle while at work. Since then the plaintiff had ongoing issues with pain and stiffness and instability of that ankle .
49 After a trial of conservative treatment, Mr Mason performed two bouts of surgery on the left ankle – on 17 June 2017 and 15 March 2018.
50 In his report dated 8 May 2018, Mr Mason states:
“I write this letter on behalf of my patient Mr. Peter Vaughan.
Peter has had substantial surgery to his right foot and ankle over the course of the year. He requires a prolonged period of rehabilitation and rest. Whilst he is making good progress, I anticipate he will most likely be unable to perform his occupational duties for another three months. I anticipate he will be able to return to his full occupational duties by the 30th August 2018.
… .”[20]
[20]See exhibit 3 at page 63 PCB
51 The plaintiff also relies on a report from the treating general practitioner, Dr Maan Bashour.[21] In that report, Dr Bashour notes that the plaintiff consulted him in relation to a left ankle injury suffered in February 2017. He was initially referred to the fracture clinic, underwent physiotherapy and chiropractic treatment, and was referred to an orthopaedic surgeon. Furthermore, Dr Bashour states, in part:
[21]See exhibit 4 at page 65 PCB
“Mr Peter Vaughan, then got involved with Job Seeking Service to find suitable employment after he ended up with constant pain in the left ankle.
My involvement with Mr Peter Vaughan is to treat his left ankle pain.
1. Mr Vaughan is on pain killers and visits the chiropractor twice per week
2. The impact of the injury on employment
Mr Peter Vaughan is complaining of constant pain in his left ankle and having a limp with weight bearing. I believe Mr Vaughan is not suitable for employment in a standing position.
To have a proper answer to this question, Mr Vaughan needs to see a Specialist in Medical Assessment for a full report on his capacity percentage to work.”[22]
[22](op cit) at page 65 PCB
The medico-legal reports relied on by the Plaintiff
52 The plaintiff relies on the following medico-legal examinations:
(a)by the foot and ankle orthopaedic surgeon, Mr William Edwards, on 9 January 2020;[23]
(b)by the occupational physician, Dr Kilner Brasier, on 28 February 2020.[24]
[23]See exhibit 5, report of same date, at pages 66-73 PCB
[24]See exhibit 5, report of same date, at pages 75-80 PCB
53 Mr Edwards was supplied the affidavits of the plaintiff, details of treatment undertaken by the plaintiff to the date of his examination, other orthopaedic surgeon opinions (for example Dr Graeme Doig and Mr Max Esser) and was also supplied with various radiological reports.
54 Furthermore, Mr Edwards obtained a precise history from the plaintiff and made a very detailed examination of the left lower leg.
55 Those acting for the plaintiff posed various questions to Mr Edwards, some of which are relevant to this proceeding. In particular, I refer to the following questions and answers:
“1. You ask, ‘A diagnosis of the injury suffered by Mr Vaughan during the course of his employment with Alcoa, and in particular on 17 October 2017?’
In answer, this man suffered an injury to the lateral collateral ligaments of the ankle. He quite probably suffered an injury to tibialis posterior at the same time. He went on to fail conservative management. He had an ankle arthroscopy and ligament reconstruction. He subsequently underwent a calcaneal osteotomy and surgery to tibialis posterior, the detail of the latter component of the surgery is obscure to me. He now has diffusely altered sensation of the foot.
…
3. You ask, ‘As a consequence of the physical injury and impairment of Mr Vaughan’s left ankle and left foot on its own (ie excluding any psychiatric condition or any other medical condition), is he likely to be precluded or restricted in relation to activities involving:
(i) pushing or pulling
In answer, yes.
(ii) squatting or kneeling
In answer, yes
(iii) prolonged standing
In answer, yes
(iv) prolonged walking
In answer, yes.
For the foreseeable future?
In answer, yes.
And if so, to what extent?’
In answer, Mr Vaughan finds it hard to rise from squatting and kneeling and, therefore, he avoids these activities. His walking time is between twenty and thirty minutes. His standing time five and ten minutes.
4. You ask, ‘As a consequence of the physical injury and impairment of Mr Vaughan’s left ankle and left foot on its own (ie excluding any psychiatric condition or any other medical condition), is he likely to be precluded from performing his pre-injury duties for the foreseeable future?’
In answer, he tells me he is unable to do these duties and this is consistent with his examination.
5.You ask, ‘As a consequence of the physical injury and impairment of Mr Vaughan’s left ankle and left foot on its own (ie excluding any psychiatric condition or any other medical condition), is he likely to be precluded from performing suitable employment for the foreseeable future, when taking into account his incapacity, age, education, place of residence, skill and work experience?’
In answer, this man needs largely sedentary perhaps semi-sedentary employment. He tells me he is retraining as a teacher in TAFE. He believes he will be able to perform that job. I believe this is likely to be correct. It is a question to best put to an occupational physician.
6. You ask, ‘If you consider that Mr Vaughan has the capacity for suitable employment please state -
(i) what type of work you consider to be suitable employment’
In answer, this man is retraining to teach at TAFE. I believe this is appropriate.
(ii) what restrictions ought to be imposed on his duties
In answer, he should have sedentary or semi-sedentary duties with limited standing and walking.
(iii) the maximum number of hours per week you consider that he would be capable of performing over a sustained period.
In answer, in the appropriate job I believe this man is likely to work normal hours.
7. You do not ask for further comments.
Having said that and without having seen x-rays I suspect consideration should be given to the removal of the screws in the os calcis. In the more distant future it is possible he will require further surgery such as subtalar fusion although I would not go down that path as yet based on today’s examination (and without current standing xrays which are needed to make such a decision).”[25]
[25]See exhibit 5, report of Mr Edwards, dated 9 January 2020, at pages 71-73 PCB
56 When Dr Brasier examined the plaintiff on 28 February 2020, he obtained a history from the plaintiff as to the occurrence of the injury and the medical treatment that he has undergone since then.
57 In particular, Dr Brasier obtained a history of the plaintiff’s present complaints. The plaintiff complained of constant aching pain and stiffness in the left ankle and foot and that such pain in the ankle is easily aggravated by excessive walking, particularly on uneven ground. The plaintiff complained of fatigue and lower back discomfort as a result of his antalgic gait and he struggles to walk long distances, stand for extended periods of time, and struggles to drive a motor vehicle for long distances. He is unable to climb ladders, struggles to walk on uneven ground, and also struggles to clamour in or out of awkward places. He is unable to squat.
58 The plaintiff further gave a history that his ability to undertake domestic chores such as cleaning, home maintenance or gardening, or mechanical activities, is restricted, and that he is unable to run. Dr Brasier performed an examination of the left ankle and also had available various radiological reports which had been obtained over the years.
59 Dr Brasier diagnosed the plaintiff to have experienced a severe inversion injury to his left ankle and sustained extensive tendon and ligamentous injuries which are detailed in his MRI scan and operation records. Furthermore, Dr Brasier was of the opinion that the left ankle and foot shows signs of Regional Pain Syndrome and that he has been diagnosed with an Adjustment Disorder with Depression.
60 Dr Brasier was also posed a series of questions from those acting for the plaintiff and I refer to some of those questions and answers:
“1. …
2. …
3.in my opinion as a consequence of the physical injury and impairment of Mr Vaughan’s left ankle and left foot on its own (i.e. excluding any psychiatric condition or any other medical condition) he is precluded or restricted in relation to the following activities:
i. pushing or pulling heavy objects such as jackhammers or trolleys;
ii. he is unable to squat;
iii. he is unable to stand for prolonged periods of time greater than 30 minutes;
iv. he is unable to walk for prolonged periods of time greater than 30 minutes;
v. he is unable to climb ladders or repeatedly climb into or exit machine operation cabins;
These restrictions in my opinion will continue for the foreseeable future;
4. in my opinion as a consequence of the physical injury and impairment of Mr Vaughan’s left ankle and left foot on its own (i.e. excluding any psychiatric condition or any other medical condition), he is precluded from performing his pre-injury duties for the foreseeable future;
5. in my opinion as a consequence of the physical injury and impairment of Mr Vaughan’s left ankle and left foot on its own (i.e. excluding any psychiatric condition or any other medical condition) he is precluded from performing suitable employment for the foreseeable future taking into account his age, incapacity, education, place of residence, skills and work experience;
6.in my opinion Mr Vaughan has a capacity for suitable employment
i. Mr Vaughan would be able in my opinion to undertake sitdown teaching work given that he is currently studying for an OHS degree;
ii. I suggested restrictions would be no more than four hours nonconsecutive days to a total of no more than [12] hours per week along the lines of the restrictions mentioned in 3;
iii. these restrictions in my opinion are likely to last for the foreseeable future.”[26]
[26]See report of Dr Brasier at page 79 PCB
61 The plaintiff also relies on two medico-legal reports from the orthopaedic surgeon, Dr Graeme Doig, who initially examined the plaintiff on 23 October 2018[27] and later, on 25 June 2019[28] on behalf of the defendant.
[27]See exhibit 7, report dated 31 October 2018, at pages 41-46 PCB
[28]See exhibit 7, report dated 8 July 2019, at pages 47-52 PCB
62 The reason for the initial examination was for the plaintiff to be assessed in relation to any non-economic loss pursuant to statutory benefits under the relevant legislation.
63 However, at the time of his second examination, the plaintiff complained of significant discomfort, principally posteromedially at the ankle, with an ongoing limp. He was unable to walk or stand for any length of time and he avoided walking on uneven ground and he was unable to run. He has problems with driving a manual motor vehicle. At that time, the plaintiff was taking Tramadol, 100 milligrams SRBD, and 50 milligrams for breakthrough pain. He was also using Effexor for Depression.
64 Dr Doig was requested to respond to various questions posed by those acting for the plaintiff. In particular, I refer to the following questions and answers:
“1. …
2.…
3.Are the reported injuries consistent with the stated cause? Your views as to the plaintiff’s present and probable future capacity for work and his ability to enjoy social, domestic and recreational activities.
The reported injuries are consistent with the stated cause. Mr Vaughan will have a 15 kgs lifting, pushing and pushing restriction with limited bending, twisting and squatting through the left leg. He should avoid working at heights and on uneven ground, as well as repetitive stair, hill and ladder climbing. He will require breaks from prolonged standing and walking. He is unable to run. He will have difficulty driving a manual transmission. All activities exceeding these restrictions will symptomatically exacerbate his ankle problem.
4Prognosis.
The prognosis must be guarded with respect to returning to pre-injury duties. Mr Vaughan will require a permanently sedentary position in the future.
5. Is further medical treatment needed? If so, please explain.
Mr Vaughan may benefit from screw removal as the implants appear to causing irritation at the back of the heel. In the meantime, he will continue with his moderately strong analgesic and ankle support.
6. If there is any recommended further treatment related to the injury/ies, what appears appropriate and necessary? Please be as specific as possible, and please explain why or why not.
I am unable to recommend any further treatment in that operative and conservative treatment modalities have been implemented with limited benefit to date.
7. The extent to which any of his injuries or symptoms have been affected by factors unrelated to the incident. When dealing with this issue please attempt to quantify the extent to which any prior employment, recreational activities such as physical training and work upon engines/cars might contribute to his condition.
It is my opinion that Mr Vaughan’s condition is as a direct result of the acute trauma to the ankle in the incident of February 2017.
Mr Vaughan was asymptomatic with respect to the left foot and ankle, as far as I am aware, prior to this incident. There was no evidence of any pre-existing degenerative change on his initial imaging.
8. We enclose a copy of a vocational assessment report prepared by Robyn Willett dated 20/12/2018. In this report you will note that Ms Willett identifies 6 jobs that the worker may be capable of undertaking. Your comments as to his capacity to successfully undertake the suggesting jobs would be appreciated.
I have perused the vocational assessment report dated 20.12.2018 identifying the 6 job options.
Mr Vaughan is currently only able to undertake seated employment, which would therefore preclude all of the positions other than the driving options which also may prove difficult for lengthy periods of time. He is unable to drive a manual transmission.”[29]
[29]See exhibit 7, report of Dr Doig dated 8 July 2019, at pages 50-51 DCB
Other material
65 Although there was a document contained in the Plaintiff’s Court Book heading “Taxation Summary Form”, such was not tendered in the circumstances of this matter, bearing in mind that the parties have agreed that the so-called “without injury” earnings of the plaintiff within the meaning of the Act were $116,551.
66 The plaintiff did tender what was said to be the average weekly full-time gross earnings (including any overtime allowances but not superannuation) for various age groups employed as a “vocational education teacher” and similarly, the average weekly full-time gross earnings (including any overtime allowances but not superannuation) for various age groups employed as a “safety inspector”.
67 Such document records that someone forty-five years plus would earn $1,573 gross per week as a vocational education teacher ($81,796 per annum). Similarly, such document would suggest that someone aged forty-five years plus would earn $2,161 gross per week as a safety inspector (or $133,982 per annum).
68 The medical records of the plaintiff from the Seaport Medical Centre and from the Tristar Medical Group were tendered.[30]
[30]See exhibit 9 at pages 84-122 PCB
69 I also refer to an email chain which I consider assumes some importance in the determination of this matter. On 2 March 2020, the plaintiff emailed a Ms Chrisy McIntosh, who was as TAE teacher involved in professional education at the South West TAFE in Warrnambool. The plaintiff stated:
“Hey Chrisy I have all intentions of making it over to class Thursday
Had a change of pain medication that messed me up abit (sic) but will talk about things and moving forward Thursday
Cheers Pete.”[31]
[31]See exhibit 8, Plaintiff’s Supplementary Court Book (“PSCB”) at page 123
70 Ms McIntosh responded on 2 March 2020 in the early afternoon, and stated:
“Hi Peter,
That sounds good. I look forward to seeing you then.
Kind regards
Chrisy McIntosh.”[32]
[32]See exhibit 8, at page 123 PSCB
71 The plaintiff sent a further email to Ms McIntosh dated 12 March 2020, which stated:
“Hi Crissy
Sorry didn’t make it today
Having a battle with these pain killers they are wiping me out heaps not shore about being able to Finnish the course
Just not fully being able to get my head around it all at this time I was having heaps of trouble retaining the information an[d] it was play[i]n[g] up with my depression too on the old tablets that’s why I changed them Really worried about if I did get through the course that I might miss sumthn when teaching a student an don’t want to send them out with the best that I could do to give them a qualification an then sumthn happen to them or someone else
Cheers Peter.”[33]
(sic)
[33]See exhibit 8, at page 123 PSCB
The case of the Defendant
72 The defendant relies on the following medico-legal examinations by the occupational physician, Dr Gary Davison, on 4 September 2018,[34] 1 April 2019[35] and 12 June 2020.[36]
[34]See exhibit “A”, report dated 18 September 2018, at pages 13-20 DCB
[35]See exhibit “A”, report dated 9 April 2019, at pages 24-29 DCB
[36]See exhibit “A”, report dated 3 July 2020, at pages 30-40 DCB
73 When first seen by Dr Davison, he was required to give his opinion in relation to liability for injuries suffered by the plaintiff on 17 February 2017 in relation to the left ankle and also complete an assessment in accordance with the AMA Guides to Evaluation of Permanent Impairment.
74 After obtaining a history and making an examination, Dr Davison described the injury suffered by the plaintiff to be in the same terms as the MRI scan taken on 6 March 2017, which identified the following injuries:
·minor bone contusion on the lateral aspect of the talus
·rupture of the anterior talofibular ligament
·partial tear of the deep fibres of the deltoid ligament
·tendinosis of the left tibialis posterior
·tenosynovitis of the left extensor digitorum longus
·left Achilles tendinitis.
75 At that time, Dr Davison considered that the injuries and the resultant two bouts of surgery had not stabilised, and further time would be needed before an evaluation of permanent impairment could be made.
76 When seen on the second occasion ꟷ that is, 1 April 2019 ꟷ Dr Davison considered the physical injury could be considered to have stabilised and he was able to make an assessment of the whole person impairment as a result of the left ankle injury. In particular, he noted at that time that the plaintiff’s injury may predispose him to premature osteoarthritis within the ankle joint.
77 When last seen on 12 June 2020, Dr Davison was requested to give his opinion regarding his plaintiff’s current condition and his capacity for suitable employment options which were contained in a vocational assessment report, being dated 20 December 2018.
78 At the time of that examination, the plaintiff continued to experience constant pain over the anterior and medial aspects of his left ankle. Such “ache like pain” was worsened by prolonged standing and excessive walking. The plaintiff also reported he was unable to undertake such activities as squatting, running, use of stairs and use of ladders.
79 Furthermore, the plaintiff reported that his ankle was stiff if he sat for a long period and that his walking and standing periods were limited to about twenty minutes give or take.
80 The plaintiff was able to undertake household chores in a self-paced manner, but has to pay for his lawns to be maintained. The plaintiff was also able to do his supermarket shopping. He is independent in respect to the necessary activities of daily living, but has a raised toilet seat and a handrail in the shower.
81 At the time of that examination, the plaintiff continued to have chiropractic treatment every two weeks and this consists largely of drying needling which provides “a little bit of relief” in relation to stiffness for a few days. At that time, the plaintiff no longer had physiotherapy and continued to attend his general practitioner for WorkCover certificates.
82 Again, at the time of that examination, the plaintiff continued to take the following medications:
·Palexia – 200 milligrams slow release twice daily
·Effexor
·Paracetamol – dosage now reduced
·Nurofen – dosage now reduced
·Tramal 50 milligrams as necessary for breakthrough pain every three to ten days.
He no longer takes Lyrica.
83 Those acting for the defendant posed various questions which were responded to by Dr Davison. I set out some of those questions and answers:
“1. The worker’s current condition, symptoms and any ongoing difficulties.
Mr Vaughan’s condition is essentially unaltered since the last assessment. He reports chronic pain, stiffness and restricted movement in the left ankle, with limitations in respect of standing and walking and an inability to undertake deep squatting, walking on uneven surfaces, using ladders and negotiating stairs.
2. The worker’s capacity to undertake suitable employment on a full-time basis.
Mr Vaughan has a capacity for suitable employment. I consider that he has a capacity to undertake four hours work per day, five days per week. It would be reasonable to allow a graduated increase in hours at the rate of 30 minutes per day per week. It is not yet clear whether Mr Vaughan could resume full-time hours in the future but I would be hopeful that that would be the case.
3.If you consider the worker is limited to part time employment, even when undertaking suitable employment, please specify the number of hours/days for which he has the capacity to work.
The worker is limited to part-time employment at the present time. I consider that he could undertake four hours work per day, five days per week in suitable employment.
4. Do you consider the worker has the physical capacity to undertake the suitable employment options identified in the enclosed vocational assessment report dated 20.12.2018?
The vocational assessment report identified the following employment options:
1. Forklift driver.
2. Storeperson.
3. Truck driver.
4. Sales representative.
5. Disability support worker.
6. Safety inspector.
The duties of a storeperson almost invariably involve prolonged standing and walking activity. For example, in order picking duties in a supermarket warehouse, the use of a stand-up pallet transporter is usually involved. I consider that the duties of a storeperson are unlikely to be suitable.
The role of disability support worker could be suitable; however, the manual handling requirements are somewhat unpredictable. In particular, squatting may be required and providing assistance with the necessary activities of daily living could prove difficult for the worker to undertake.
The duties of a truck driver could be suitable, depending upon the size of the truck and whether or not the truck has automatic transmission. I consider that he would not be suitable to drive a manually geared vehicle. He may have difficulty with access and egress from a truck cabin and, overall, the role is unlikely to be suitable.
I consider the following employment options would be suitable:
·Forklift driver.
·Sales representative.
·Safety inspector.
5. Do you consider the worker has the physical capacity, upon completion of retraining in the OH&S sector, to undertake employment as a TAFE educator or as an OH&S officer?
I consider the worker does have the physical capacity to undertake employment as a TAFE educator or as an OH&S officer; however, Mr Vaughan reported that due to reduced levels of concentration, he has discontinued the training in occupational health and safety. This is understandable, given the opiate-based analgesia that he is ingesting on a regular basis.
Nonetheless, from a physical perspective, he has the capacity to undertake such employment, subject to compliance with the following restrictions:
·Avoid prolonged standing or walking for more than 30 minutes without the ability to rest.
·Avoid use of ladders or excessive use of stairs.
·Avoid deep squatting.
·Avoid manual handling greater than 15 kg in force or weight between mid-chest and mid-thigh height.”
84 The defendant also relies on various documents contained in exhibit “B” which relate to the attempted rehabilitation of the plaintiff[37] and documents contained in exhibit “C” which involve the plaintiff’s involvement at the South West TAFE.
[37]See pages 71-136 DCB
85 I refer to some of these documents:
(a)On 16 April 2019, WorkFocus Australia scanned a document to the treating general practitioner, Dr Bashour, seeking his opinion as to the vocational prognosis of the plaintiff.[38]
[38]See exhibit 1 at page 71 DCB
Dr Bashour completed the document supplied by WorkFocus Australia wherein he expressed the opinion that the plaintiff was fit for suitable duties which could involve work, health and safety advisor; diversional therapist (lifestyle assistant); sales representative (for example within automotive industry or tools) and retraining in Certificate IV Work Health and Safety.
In supplying that information, Dr Bashour also stated, under the area marked “Comments”, that:
“Left ankle and left foot pain after surgery unable to keep standing and walking on same for full shift.”
“No walking or standing for longer than half an hour continuously.”[39]
[39]See exhibit “B” at page 73 DCB
(b)A vocational assessment report from Recovre dated 20 December 2018. Such report was sought by the solicitors acting on behalf of the defendant for the purposes of assessing and determining the suitable employment options for the plaintiff. Ultimately, the employment placement consultant, Ms Robyn Willett, came to the view after assessing the plaintiff’s educational achievements, transferable skills and work experiences, that he was capable of performing work as a:
(i) forklift driver;
(ii) storeperson;
(iii) truck driver;
(iv) sales representative;
(v) disability support worker;
(vi) safety inspector.
Leaving aside whether the plaintiff would have capacity to perform the alleged “suitable employment”, some of the jobs mentioned would not earn the plaintiff 60 per cent or more of pre-injury earnings;
(c)in a report headed “Job Seeking Services Report” from WorkFocus Australia dated 11 February 2019.[40] In that report, it was suggested by the consultant, Ms Maria Tsaousidis, that the plaintiff could perform suitable employment as a sales representative; a speed camera operator; a general clerk; conversional therapist (lifestyle assistant) and work health and safety advisor.
[40]See exhibit “B” at page 91 DCB
It was recommended the plaintiff undergo an intermediate computer course to provide him with the necessary skills while performing in those roles;
(d)In a report headed “Job Seeker Plan” prepared by WorkFocus dated 10 May 2019, there is set out various attendances by the plaintiff on WorkFocus Australia on 9 May 2019. During such a meeting, the plaintiff advised WorkFocus Australia that he had independently enrolled in the 101 computer course and advised WorkFocus Australia of having completed such course. At that time, he had also independently enrolled himself in the intermediate computer course which was to commence on 13 May 2019.
On 21 May 2019, the plaintiff advised WorkFocus Australia that the intermediate computer course was progressing well and also reported that the training provided Upskilled to be in contact with him regarding a Certificate IV in Work Health and Safety;
(e)In a further document headed “Job Seeking Review Report” from WorkFocus Australia dated 30 July 2019, it was noted that on 12 June 2019, the plaintiff expressed a strong interest in undertaking training within the Certificate IV in Work, Health and Safety with a view to find suitable employment as a work health and safety advisor.
Furthermore, the plaintiff advised WorkFocus Australia that he had completed the intermediate computer course and would be undertaking the advanced computer course with Portland Work Skills to build on his computer skills.
Again, at that time, WorkFocus Australia conducted a labour market search on Seek and discussed the following employment roles with the plaintiff – advisor, WorkSafe Victoria (South West Coast VIC). The plaintiff reported a strong interest to pursue such work.
On 18 June 2019, WorkFocus Australia noted that the plaintiff was completing computer retraining and had commenced the Certificate IV in Work Health and Safety with Upskilled, which was approved by the defendant.
Over a number of reviews, the plaintiff informed WorkFocus Australia that he was progressing with his Certificate IV in Work Health and Safety.
On 8 August 2019, the plaintiff advised WorkFocus Australia that he had passed and completed his first assessments for the Certificate IV in Work Health and Safety. Furthermore, he also advised that he had consulted with the Portland South West TAFE and he would be commencing the Certificate accreditation for the teaching and assessment certificate.
From August 2019, the plaintiff advised WorkFocus Australia that his main focus was to complete his courses and at that time, WorkFocus Australia encouraged the plaintiff to provide continuous updates of his retraining and had monitored jobs advertised to ensure that he is able to attain suitable employment.
On 16 September 2019, the plaintiff advised WorkFocus Australia of suffering shingles, causing him to be hospitalised, and was unable to attend a meeting with WorkFocus Australia.
Over the period from 26 July to 20 September 2019, WorkFocus Australia noted that the plaintiff participated in job-seeking meetings, has continued to complete his retraining, consisting of computer training, and Certificates IV in Work Health and Safety and in Training and Assessment.
86 In a further document headed “Job Seeking Review Report” prepared by WorkFocus Australia dated 28 November 2019, there is again reported various attendances by the plaintiff on WorkFocus. In particular, I refer to the following:
(a)On 11 October 2019, the plaintiff advised he was still completing his Certificate I in Computers and that he had successfully completed two modules in the Certificate IV in Training and Assessment course. The plaintiff also reported that because of his shingles, he had not been actively involved in the Certificate IV in Work Health and Safety, but reported he was recommencing study work.
That report shows that the plaintiff participated in job-seeking meetings with WorkFocus Australia on 11 October 2019, 14 October 2019 and 12 September 2019. Furthermore, during that time, he was continuing his retraining, both on the computer training course and Certificates IV in Work, Health and Safety and Training and Assessment.
87 In a document headed “Job Seeking Review Report” from WorkFocus Australia dated 26 February 2020, are set out further details of various attendances by the plaintiff. In particular, I refer to the following:
(a)On 17 December 2019, the plaintiff advised WorkFocus Australia that he is concentrating on completing the Certificate of Attainment in Computer Technology; Certificate IV in Work Health and Safety and a Certificate IV in Training and Assessment. Because of the significant amount of retraining he is completing, he had not conducted any independent job-seeking activity;
(b)On 18 February 2020, the plaintiff advised WorkFocus Australia that he had suspended the computer course until the next term as he reported wanting to limit the amount of study he has to do. The plaintiff also advised he has requested an extension on the Certificate IV in Work Health and Safety providing him the time to complete this course. The plaintiff advised that the Certificate IV in Training and Assessment course will be completed in May 2020.
Also at that meeting, it is recorded by WorkFocus that:
“During the meeting, WorkFocus Australia provided vocational counselling to Mr Vaughan. Mr Vaughan reported the feeling of stress is returning however is taking action before it becomes overwhelming. Mr Vaughan advised that his priority is to complete the Training and Assessment course which will enable him to apply for suitable positions.”[41]
[41]See exhibit “B” at page 134 DCB
88 Exhibit “C”, as I have recorded, contains various documents associated with South West TAFE, where the plaintiff enrolled for his various course. In particular, I refer to a document headed “2019 Enrolment Form (Short Courses)”.[42]
[42]See exhibit “C” at page 235-236 DCB
89 In that document, the plaintiff records that he completed Year 10 in 1989. Furthermore, when questioned what his reason of study was, the plaintiff ticks the box “To get a job”.
90 There is also a document headed “Pre Training Review Report”,[43] wherein the plaintiff sets out various details of his background and, in particular, notes:
“Leg injury need to be able to get off the leg every couple hours also need to stretch the ankle.”[44]
(sic)
[43]See exhibit “C” at pages 239-241 DCB
[44]See exhibit “C” at page 240 DCB
91 I also refer to a document headed “Course Withdrawal Form”,[45] wherein it recorded that on 5 March 2020, the plaintiff withdrew from the Certificate IV in Training and Assessment course – that being term four of 2019. I also refer to an email from the rehabilitation consultant, Maria Tsaousidis, from WorkFocus Australia, addressed to a Mr Stephen Hoggan, described as the WorkCover officer of Portland Aluminium. In part, the email states:
“I have not been able to get a hold of Peter to check in and see how he is going. Peter has advised me that at the moment, not much has changed as he is quite restricted with the current COVID-19 climate.
Peter has advised me that his medical appointments have all continued to be via teleconference and he has also been prescribed with new medication to figure out which medication is going to provide him with the most pain relief. With regards to his Certificate courses, Peter advised that everything is still on a hold because of the current climate however he didn’t advise when these are likely to be recommencing. At this stage, Peter’s main focus has been his pain symptoms and trying to find some pain relief.
I wanted to touch-base with you regarding ongoing job seeking services. As Peter is currently on hold with his retraining and is not actively looking for new employment given the current climate, I was wondering whether you would still like for me to engage Peter within job seeking services?”[46]
[45]See exhibit “C” at pages 244-245 DCB
[46]See exhibit “C” at page 246 DCB
The cross-examination of the Plaintiff
92 Before the cross-examination of the plaintiff, the Court permitted counsel for the plaintiff to lead evidence in relation to the plaintiff’s current medication and the status of the various TAFE courses. There was no objection to such course.[47]
[47]T13, L13-20
93 In relation to current medication, I refer to the following evidence:
MR MACNAB:
Q:“Thank you, Your Honour. Mr Vaughan, at paragraph 3 of your affidavit that was sworn on 5 February 2020, you indicated there that you were taking Tramadol and Effexor?---
A: That is correct.
Q:Has your medication regime changed since you swore the affidavit?---
A: My medication is
Q: since you swore the affidavit?---
A:My medication is still Tramadol and Effexor and we’ve added in Palexia at 200 milligrams morning and evening.”
HIS HONOUR:
Q:“So the Effexor right now is 200 milligrams, one does [sic] in the morning and one dose in the evening. Is that correct?---
A:No, sorry. The Effexor is 150 milligrams in the morning, that’s an antidepressant.
Q: Yes?‑‑‑
A:And the Palexia is 200 milligrams in the morning and 200 milligrams in the evening.
Q:Yes. Perhaps you could help me, Mr Macnab, is the Palexia, is that another name for the Tramadol or what?---”
MR MACNAB:
A:“It is tapentadol is what it is, Your Honour. So it is an opiate-based medication but different to the Tramadol.”
HIS HONOUR:
Q:“So right now, Mr Vaughan, you are no longer taking Tramadol. Is that right?‑‑‑
A:I take Tramadol as breakthrough, for breakthrough pain at 50 milligrams a tablet.
Q:Probably it is hard to say how often but can you give the court any indication how often you would take Tramadol for as you say, the breakthrough pain?---
A:Basically when the leg is aggravated it could be two or three times a day, it could be once a week.
Yes, thank you.”
MR MACNAB:
Q:“On average, how often, two or three times a day, once a week? On average, how often do you find that you’re taking a Tramadol?---
A:On average, every few days, like I said.
Q:With the Palexia, 200 milligrams morning and 200 milligrams in the evening, how often do you take that?---
A: Morning and evening every day.
Q:Every day? Right, okay. You take the Effexor every day as well?000
A:Yeah, in the morning.
Q:Do you recall when it was that you started - well that you were prescribed the Palexia?---
A:Late March, early May.
Q:Why did that come about, do you know?---
A:The Tramadol that I was on, the higher dose of Tramadol I was on, um, had ceased to work, ceased to give me relief.
Q:Okay. With the Palexia at the dosage that you’re taking now, what effect has that had on your pain levels?---
A:It has taken the edge off the pain, um, yes it does some slight relief.”
HIS HONOUR:
Q:“Mr Vaughan, can I just ask you this? What do you say as to whether - are there any periods that you don’t have pain?---
A:No.
Q:Yes. Can you also give me some indication, if we had a scale of one to 10, at your worst where would you place it, 10 being the highest and when it’s under control a bit by the Tramadol, what would it be at its lowest?---
A:At its worst it would be 7 to 8.
Q:Yes?---
A:And on average, it’s five - five to six.
Yes, thank you.”
MR MACNAB:
Q:“So in a given week, how often would you have pain and seven to eight out of 10?---
A:It really depends on the usage, um, could be a couple of days a week.
Q:What sort of usage gives you the seven to eight out of 10 pain?---
A:Standing for periods of time, excessive walking, um, steps.
Q:All right. Does the Palexia have any other effect on you?---
A:Stoned, very, um, foggy - foggy in the - in the brain.”[48]
[48]T13, L21 – T15, L25
94 The plaintiff also gave evidence in relation to two courses, being training and assessment and workplace health and safety. I refer to the following evidence:
MR MACNAB:
Q:“Okay. With the courses, can you tell His Honour what courses you were doing last year?---
A:Last year I, um, entered into Training and Assessing and, ah, a course of Workplace Health and Safety.”
HIS HONOUR:
Q:“I didn’t hear the first, we just got a bit of an echo, Mr Vaughan?---
A:Oh, sorry.
Q:No, not your fault. What was the first course you were doing?---
A:Training and Assessment.
Q:Yes and the second course?---
A:Was Workplace Health and Safety.
Yes, thank you.”
MR MACNAB:
Q:“When did you commence the courses?---
A:Mid, mid last year.
Q:With the Workplace Health and Safety course, how long did you do that for?---
A:Workplace Health and Safety, I studied for a few months.
Q:Did you stop it?---
A:I did, I found it very difficult.
Q:When did you stop it?---
A:Oh, it would’ve been two-and-a-half months into it.
Q:Why did you stop it?---
A:Just very, very difficult on the academic side of things. Um, it was beyond my capabilities to be honest.
Q:In terms of the Training and Assessment course, when did you commence that?---
A:That was later in the year
Q:Later in which year?---
A:Last year, sorry.
Q:Okay. You have since stopped that, is that correct?---
A:Correct.
Q:When did you stop it?---
A:This year.
Q:Why did you stop it?---
A:The, um, change of medication, I was, ah, having trouble retaining the information and, um, yeah, just it was very difficult academically.”
HIS HONOUR:
Q:“Mr Vaughan, can I ask when you started the Occupational Health and Safety Course, you’ve described that and that ceased after about I think you said, two-and-a-half months, you just couldn’t cope with it, perhaps from an academic side?---
A:Yes.
Q:Then you had a gap and you started the next course, was that right?---
A:There was - there was a little bit of overlap but yes, it’d be pretty close to it.
Q:I see and did you find that more, leaving aside the fogginess and the consequences of your medication, did you find that easier to deal with or was it also challenging?---
A:It was also challenging.
Yes, thank you.”
MR MACNAB:
Q:“When did you stop the Training and Assessment course?---
A:It’d be March, late March this year.
Q:Has anything changed since then?---
A:No, no.
Q:In terms of looking to the future, what do you say about your capacity to go back and continue with either of those courses?---
A:I’d say there’s no capacity, to be honest.
Q:Why is that?---
A:Just with the amount of medication and the, ah, academic side of things, it’s well beyond my capabilities, once I got involved into the course and worked out what was in there.
Q:All right. Yes, thank you, just wait there please. Your Honour, I can’t recall what Your Honour’s practice is, whether to tender everything at the conclusion?”
HIS HONOUR:
A:“At the end, yes. Just before you start cross-examination, Mr Smith.
Q:Mr Vaughan, I just want to get it clear in my mind. After your work came to an end with Alcoa, you yourself made the decision to try these courses out, did you?---
A:I did try, yes.
Q:Yes and the idea being you wanted to get back to some sort of work?---
A:Some sort of work, indeed.
Q:Yes. What have you been living on since stopping work and up to now?---
A:There has been, um, WorkCover, WorkCover payments until last, ah, October, end of October.
Q:Yes?---
A:Then there was a period of living off of my savings.
Q:Yes?---
A:And then some unemployment benefits started this year.”[49]
[49]T15, L26 – T17, L30
95 Under cross-examination, Senior Counsel for the defendant directed the plaintiff to the report of the treating surgeon, Mr Mason, dated 8 May 2018[50] and in particular, to the comment of Mr Mason that he anticipated the plaintiff would be able to return to his full occupational duties by 30 August 2018. The plaintiff accepted that he had a discussion with Mr Mason about his ability to get back to work and he also accepted that it was Mr Mason’s view that as at May 2018, he would probably be able to get back to work with Alcoa “at that time”.[51]
[50]See exhibit 3, page 63 PCB
[51]T21, L5-7
96 The plaintiff confirmed that since ceasing to see Mr Mason, he has been under the care of his general practitioner, Dr Bashour, and commencing February 2019, he had looked into job retraining, and that in turn led him to contact with Recovre, the company specialising in rehabilitation.
97 The plaintiff was also directed to the questionnaire completed by Dr Bashour, to which reference has already been made,[52] wherein Dr Bashour is asked whether or not various jobs proposed by Recovre involved work as a health and safety advisor, diversional therapist, speed camera operator and sales representative, and retraining as an intermediate computer operator were suitable options for the plaintiff to pursue. The plaintiff accepted that Dr Bashour had agreed at that time that those jobs were suitable and that agreement followed a discussion with the plaintiff prior to him filling out the questionnaire. The following evidence ensued:
[52]See exhibit 1, page 71 PCB
Q:“And your understanding of his opinion was, all of these jobs – the workplace advisor, diversional therapist, the speed camera operator, the sales representative – they were all suitable jobs for you, given your physical condition?---
A:At that time.
Q:Yes. And that the training was suitable – that the training that was proposed was suitable training for you, correct?---
A: At that time, yes.
Q:And when you say, ‘At that time,’ do you say there’s been any change in your condition since May 2019?---
A:Slight deterioration, and medication changes.
Q:Well, let’s start with the deterioration. When do you say that took place?---
A:It’s been ongoing.
Q:Because back in February of this year, when you swore an affidavit, you said there had been no real change in your condition since June 19, when you swore your first affidavit?‑‑‑
A:Right.
Q:So, which is it? Is it no real change, or deterioration?‑‑‑
A:Well, slight deterioration, no real change. Slightly got worse.
Q:Those are two separate things, you understand?‑‑‑
A:Right.
Q:So which is it, do you say? No real change, or slight deterioration?‑‑‑
A:Well (indistinct) no deterioration, then.
Q:No deterioration, all right. So there’s nothing about your condition now – compared to May 19, when you were speaking to Dr Bashour, there’s no change in your condition that affects your ability to do the jobs, is there?‑‑‑
A:The medication.
Q:You say the medication?‑‑‑
A:M’mm.
Q:We’ll come to that. I’m talking about your physical condition?‑‑‑
A:Physical condition?
Q:Yes?‑‑‑
A:Well, no. The more use I – I use the leg, the worse it gets.
Q:Yes, I understand that, but that was back in May 19, wasn’t it?‑‑‑
A:It’s been – since – yep. It’s been ongoing.”[53]
[53]T22, L19 – T23, L22
98 The plaintiff was also referred to the initial consultation with Recovre,[54] and in particular, to details about what the plaintiff said were his “job interests” at that time. The plaintiff accepted that at that time, he did say he was interested in work as a health and safety advisor which was preferred to the diversional therapist role, but he also had an interest in the role of being a sales representative. The plaintiff also confirmed that he completed a basic computer course, which he described as “very basic”, as well as an intermediate computer course, which he described as still “very basic”.[55]
[54]At page 97 DCB
[55]See generally T24, L2-27
99 Under cross-examination, the plaintiff accepted that he would probably like a chance to complete an advanced course involving computers, although he would not know what skills they would be teaching in such course. When asked whether he would describe himself as being capable on a desktop or a laptop computer, the plaintiff said he did not own a computer and that he was not “overly confident”.[56]
[56]See generally T25, L18-30
100 The plaintiff also gave evidence that he was to a “certain degree” capable with a smart phone and capable of “very basic use of the internet”.[57] The plaintiff also confirmed that he did buy a computer the year before as part of the course work that he was then undertaking and that he had “trouble with operation of that”.[58]
[57]See generally T26, L4-9
[58]T26, L6-14
101 The plaintiff also informed the Court that he had given that computer to his children as he does not “use it”.
102 The plaintiff was taken to a pre-training review undertaken on 13 August 2019[59] wherein certain information was recorded as to the plaintiff’s experience with such things as a desktop and/or laptop computer and smart phone. In the document, the plaintiff has recorded that he is “capable” of using such things as a desktop and/or laptop computer or indeed a smart phone.
[59]At page 240 DCB
103 It was put to the plaintiff that the only limitation that he put on his return to study was the need to get off his leg every couple of hours in order to stretch the ankle, to which the plaintiff agreed. When it was put to him that there was no suggestion there were any problems with medication affecting his study, or indeed, any limitation on his ability to study other than his leg, the plaintiff stated that was the case “back then”.[60]
[60]T29, L20-26
104 The plaintiff confirmed that his occupational health and safety course was done online and in particular, was conducted from his home, allowing some flexibility how he went about that course. Furthermore, the plaintiff accepted that he stated in his pre-enrolment documentation that he hoped the course would lead to a “full-time job”.
105 The following evidence ensued:
Q:“Exactly - and that was your aspiration back at August 2019, wasn’t it?---
A:Absolutely.
Q:It certainly wasn’t your position then, ‘Oh well I think my leg injury will restrict me in terms of the number of hours I could do in a job’ was it?---
A:Well how do you mean?
Q: Well it says: ‘What do you hope to achieve?’?---
A: Yeah.
Q: ‘A full-time job’?---
A: Yeah.
Q: You don’t say, for instance: ‘Part-time job’?---
A: No, I don’t.
Q: No, because it was your hope?---
A: My hope.
Q:Yes and I want to suggest to you, it was your expectation that with a suitable course of study you’d be able to do a job full-time?---
A:My hope was, yes.
Q:Well while we are dealing with these documents, can I take ‑ ‑ ‑?---
A:I’ve never not wanted to have fulltime work.
Q:No, I understand that, and your position was that you expected to be able to do fulltime work once you completed your course?‑‑‑
A:Yep.
Q: Correct?---
A: Yep.”[61]
[61]T29, L16 – T30, L3
106 When it was put to the plaintiff that there was nothing about his medication which stopped him from doing the workplace health and safety course, the plaintiff responded:
“Workplace health and safety? No, it just got too difficult academically.”[62]
[62]T31, L13-14
107 The plaintiff also confirmed that he was intending to attempt the advanced computer course, but that was a time that he had shingles so he did not commence the course. In particular, the following evidence was given:
Q:Right. So you had an attack of shingles and that put you off for a period, did it?---
A:I believe so.
Q:Have you ever attempted to go back to the advanced computer course?---
A:Computers are not my thing, mate.
Q:No, but as at July 2019, it seems that your plan was to do the advanced computer course?---
A:I tried, yep.
Q:Well, when you say you tried, you didn’t try, did you, in the sense that you didn’t ‑ ‑ ‑ ?---
A:Oh, the advanced one?
Q: Yes?---
A: No.
Q: Right. And you haven’t gone back to it since, have you?---
A: No.
Q:And why is that, given that you’ve done the beginning and the intermediate courses successfully and were planning to do the advanced course as at July 2019?---
A:I just haven’t got back to it.”[63]
[63]T32, L4-22
108 When pressed, the plaintiff gave evidence it was towards the end of 2019 that he decided academically that the course involving work health and safety issues was academically too much for him. In particular, the following evidence was given:
Q:“Towards the end of the year. Well, you’ve been – you commenced the course, it seems, it May 19. Does that sound right to you?---
A:Okay, yep.
Q:And so you told His Honour you did it for about two and a half months?---
A:Yeah.
Q: Which would take you through to July 2019?‑‑‑
A: At full-time, yeah.
Q:Well, were you doing it full-time?---
A:Well, as much as I was at home, yep, and then I had dips and dabs at it, trying to get through it, for the rest of the year. Log in and try and do a bit, log in and try and do a bit. And then I finished up towards (indistinct) the year – you know, I tried and tried and tried.
Q: Well, you say you dipped in and did dips and dabs?---
A: Yeah.
Q:What else were you doing in, say, August, September, October of 19 that prevented you from continuing to do the course full-time, as you had in the first few months?‑‑‑Academically, it was – I just couldn’t get my head around it. Like I said to you before, I was trying. I’d give it a break for a while, go back, try again; give it a break, go back, try again.”[64]
[64]T34, L29 – T35, L18
109 In answer to a question under cross-examination, the plaintiff stated that he had arranged with Alcoa for the courses to be undertaken, and in particular, the following evidence was given:
HIS HONOUR:
Q:“Can I just ask you, Mr Vaughan – I think you’ve touched on this before. I just want to be clear about this. (Indistinct) work with Alcoa. You’ve expressed that you wanted to get back to work?---
A:Yep.
Q:And you said you started up – about chasing up courses. What did you actually do at that stage, at the very beginning? How did you go about chasing up the courses? What did you do?---
A:I rang up Warrnambool TAFE and asked them about the courses.
Q:And the courses you’re talking about are the two we’ve been talking about, the occupational health one and the other one?---
A:Yes, sir.
Q:Did you have documentation from the TAFE that they ran those sorts of courses, did you?---
A:I got information that it was – the workplace health and safety one was an online upskill course, that then I chased up. I only dealt with Alcoa for the funding. But WorkFocus ‑ ‑ ‑
Q:So the Alcoa funding came after you made the enquiries about the course, et cetera?---
A:Yeah.
Q:And then, the funding came through, and then, as you’ve told us, you said you started off in the courses, but as you’ve described, there was difficulties?---
A:Yep.
Q:The other thing I want to ask, you’ve talked about telling a girl about something. Who was the girl you told, and what did you tell her about the courses?---
A:This is the WorkFocus lady, I suppose. Not sure which part you’re talking about.
Q:Well, just going back to your evidence a few minutes ago, about five minutes ago, you said – you were pressed about, ‘Did you tell anyone?’ and at one part of your evidence you said words to the effect, ‘I told a lady there, and it doesn’t seem to be recorded’?---
A:That would’ve been Maria. That was the lady from WorkFocus that I – I dealt with.
Q:And what did you tell her?---
A:That I was having trouble with courses academically and that. But obviously, it’s not noted in any of that.
Q:The other thing I want to know; from your end of it, how did this affect you, when you found you – it was your belief that you academically weren’t up to it? How did that impact on you?---
A:Well, it was devastating. I wanted to get back to work. I’m not a smart man. I have a very limited education, and I wanted to get back to – out of all this, I wanted to get back to work. And I picked some jobs that I thought I could give a go, and once I’ve got into it, I didn’t realise how academically requirements they were. And it was beyond me, and I was shattered. I was, you know, trying to have a go.”[65]
[65]T36, L16 – T37, L31
110 The cross-examination was based on the plaintiff not giving WorkFocus or the defendant details of what was described as academic difficulties with his subject matter and/or difficulties performing his studies given his intake of medication. Reference was made to various notes in the records held by the rehabilitation provider of the plaintiff saying he was still performing the course.
111 For example the plaintiff was taken to page 134 of the Defendant’s Court Book and asked whether it was the position in February 2020 that the Certificate IV in Training and Assessment would be completed by May 2020. The following evidence ensued:
Q:“Yes and your expectation as at 18 February 2020, was ‘I’ll be finishing the course in about three months’ time’?---
A: I was hoping to.
Q: Yes, you were expecting to?---
A: Not expecting, hoping.
… .”
HIS HONOUR:
Q:“Could I just ask you - sorry to interrupt - just on that date, 18 February 2020 Mr Vaughan. I just want to read the right-hand column?---
A:Yeah.
Q:Not quite halfway down, it says this: ‘During the meeting WorkFocus Australia provided vocational counselling for Mr Vaughan. Mr Vaughan reported the feeling of stress is returning.’ What was the stress you were feeling there?‑‑‑
A:Well it was stress of it all, of - of the academic side of things, the workload, trying to get - trying to get things done so that I had a career and a - a chance to move forward and you know?
Q:Also, can you comment at all, the way it’s worded by the organisation: ‘Mr Vaughan reported the feeling of stress is returning.’ Which suggests you may have had it before?---
A:Yeah.
Q:Had you talked to them before about stress?---
A:Well obviously they haven’t noted it. I believe I - I have mentioned it, I believe I did, um, it wasn’t something that – unless they’re referring to when I had the shingles, I couldn’t honestly say what they’re referring to.
Q:That’s all right. Don’t guess. I just asked – if you don’t know, don’t guess?---
A:I don’t know what they’re referring to. But, yes, a significant amount of stress throughout the lot.”[66]
[66]T53, L31 – T54, L28
The re-examination of the Plaintiff
112 The plaintiff confirmed in re-examination that there were subjects in the Assessment and Training course that he had not been able to finish, and when queried as to why he could not finish them, the following evidence was given:
“Again, the academic and, and, um, yeah, well my medication changed.”[67]
[67]T65, L26-27
113 The plaintiff also confirmed in re-examination that he had completed two computer courses; however, the Western District Employment Access in Portland and such course involved attending two days a week for a period of three hours each day. When queried as to when he types, the plaintiff described it as being “pretty agricultural, just two fingers”.[68] Furthermore, the plaintiff was questioned about his reading and writing skills, which he described as “Oh, average, below average”[69] and finally, he was asked whether he had ever been required to submit written reports, to which the plaintiff replied “No”.[70] The plaintiff was queried as to whether he had the capacity to work as a TAFE teacher, to which he replied “No I don’t”.[71]
[68]T66, L21
[69]T66, L26
[70]T67, L1
[71]T68, L6
114 The following evidence ensued:
Q:“Why is that?---
A:Um, academically, um, giving someone a licence to potentially, um, kill someone and, ah, if I get it wrong, if they get wrong and, um, also the physical activity of instructing and supervising, um, newcomers to a machine that they know nothing on, which would be demonstration, standing, um, conversation, standing, walking about machinery, inspecting and - and showing them, um, the ins and outs of all sorts of machinery.
Q:What affect would that have on you, if you were required to undertake those activities that you’ve just outlined to His Honour?‑‑‑
A:A great deal of pain with the leg, standing and - and walking around. Um, it’s not always the flattest surface in the world as well as getting on and off machinery, which is out for me, um, steps and that to use cranes and staircases and so forth - it’s out.
Q:How do you think you’d go if you were given a job as a training - sorry, as a health and safety inspector?---
A:Well, again if there was an accident on a, in a factory per se, I’d have to go in and inspect, uneven surfaces, rubble, staircases, um, things of that nature to inspect, um, the worksite and the - the, where the injury occurred would be, ah, very, very difficult if not impossible.
Q:If someone was to ask you today, right now, to just go to a computer and start typing up a report, do you reckon you’d be able to do that?---
A:No, not - not particularly, no.
Q:Why is that?---
A:Just the - the lack of education and - and it’s, it - yeah, I - I’m not very good at it.”[72]
[72]T68, L7 – T69, L2
115 The plaintiff was also re-examined in relation to his medication. I refer to the following evidence:
Q: “You said that the Tramadol wasn’t being effective?---
A: Correct.
Q:When did that start becoming the case, that the Tramadol was no longer giving you the pain relief that you were looking for?---
A:It had, um, early part of the year, January, February, sort of around that era, was starting to show decline.
Q:And when you say - what impact did that have on your pain levels, then?---
A:Oh, my pain level raised.
Q: Right?---
A: Raised.
Q:And with the Palexia when you were first prescribed Palexia, did that give you any benefit?---
A:Ah, not straight away, not until we - we built up to - to higher doses.
Q:Then when you got up to the higher doses, what impact did that have on your pain level?---
A:It, ah, took the edge off - off the pain. Didn’t get rid of it totally, but took the sharpness out of it.
Q:What impact did that have on your thinking?---
A:Well, I’m - one of the side effects is tiredness all the time, and, um, yeah, again, there’s trouble recalling things and - and that, but I’ve had trouble for a while.
Q:Yes, okay. Given how things are at the moment, do you see that there’s any prospect of you getting back to finishing these courses that you commenced?---
A:No, I don’t, to be honest, no.
Q:Do you see that you’ve got any prospect of getting back to fulltime work in the future?---
A:I don’t, no. Not fulltime work.”[73]
[73]T69, L6 – T70, L1
Analysis
116 I have already recorded that there is no issue that the plaintiff should have leave to bring proceedings for “pain and suffering” damages to his left foot injury. Such concession is appropriately made.
117 For the record, I do find that based on all the evidence, the left foot injury suffered by the plaintiff during the course of his employment with the defendant, and in particular on 17 February 2017, has resulted in permanent impairment and various consequences impacting on his capacity for employment, recreational activities and, to some extent, his activities of daily living.
118 Furthermore, I am satisfied that when one does consider the “pain and suffering consequences” to the plaintiff in respect of such impairment, such consequences are:
“… when judged by comparison with other cases in the range of possible impairments or … as the case may be [can be] fairly described as more than significant or marked and as being at least very considerable.”
119 The critical issue is whether or not the plaintiff has discharged his onus in establishing leave to bring common law damages in respect of “pecuniary loss” damages within the meaning of s325(1) of the Act in respect of his left foot injury. In this respect, the defendant accepts that the plaintiff has no capacity to perform his pre-injury employment with the defendant, but asserts that the plaintiff is capable of performing suitable employment.
120 The so-called “without injury” earnings agreed between the parties is $116,551. Again, as I have already recorded, 60 per cent of the “without injury” earnings is $69,930 per annum or accordingly, $1,344 per week.
121 The defendant submits, in the circumstances of this matter, that although the plaintiff is incapable of performing his pre-injury employment, he is capable of performing full-time work as:
(a) a full-time sales representative; or
(b)a full-time safety inspector involved with occupational health and safety matters; or
(c)a trade teacher instructing students in an appropriate TAFE;
which generate more than $69,930 per annum (or, accordingly, more than $1,344 per week).
122 Section 325(2)(f) of the Act provides that for the purposes of paragraph (e)(i) or s325(2)(e)(i) of the Act, a worker’s loss of earning capacity is to be measured by comparing the worker’s gross income from personal exertion (expressed as an annual rate) which the worker is –
(a) earning, whether in suitable employment or not, or
(b) capable of earning in suitable employment –
as at that date, whichever is the greater, and the “without injury” earnings.
123 The term “suitable employment” at the time of injury, was defined to mean:
“‘Suitable employment’ in relation to a worker means employment in work in which the worker is currently suited–
(a) having regard to the following–
(i) the nature of a worker’s incapacity and the details provided in medical information including but not limited to, the Certificate of Incapacity supplied by the worker;
(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv) the worker’s place of residence;
(v) any plan or document prepared as a part of the return to work planning and process;
(vi) any occupational or rehabilitation services that are being or have been provided to or for the worker;
(b) regardless of whether –
(i) the work or employment is available; or
(ii) the work or employment is of a type or nature that is generally available in the employment market; and
for the purposes of Part 4 includes:
(c) …
(d)…
(e)… .”
124 I refer to the Court of Appeal decision of Harris v DJD Earthmoving Pty Ltd,[74] which was an appeal by a worker following a dismissal by the trial judge of his application for leave to commence proceedings and recover pecuniary loss damages. Factual issues raised at first instance involved “suitable employment” and permanency of loss of earning capacity. The worker was successful in the appeal and the matter was ultimately remitted to the County Court for rehearing.
[74][2016] VSCA 188
125 In relation to “suitable employment”, the Court of Appeal stated:
“… Rather, in the particular circumstances of this case, it was incumbent on the judge to demonstrate by his statement of reasons that he had considered in detail what, if any, specific job or jobs Mr Harris might, in the foreseeable future, be able to do[75] on a regular and consistent basis, allowing for such improvement as might be thought likely or possible after a pain management program and/or a drug treatment program and/or the undertaking of vocational education … .”
(My emphasis.)
[75]“We have used the expression ‘be able to do’ (as distinct from, say, ‘be able to get’) advisedly. During the oral hearing, the Court raised with senior counsel for the respondent (at Transcript 52-53) whether ‘employability’ was relevant, having regard to what was said in Barwon Spinners, especially at (2005) 14 VR 622, 652 [74]. Senior counsel’s response, in substance, was that the test was one of physical capacity, not employability: Transcript 53. In his reply, senior counsel for the applicant mentioned ‘employability’ in passing (Transcript 59), but did not develop an argument against, or otherwise take issue with, the respondent’s position in that respect. Since the hearing, this Court (Ashley and Kaye JJA, Osborn JA agreeing) has decided Richter v Driscoll [2016] VSCA 142. That case related to a claim for statutory benefits under the Act in respect of a worker said to have ‘no current work capacity’ (as defined), a statutory concept that involved the same definition of ‘suitable employment’ as applied in the present case. In Richter v Driscoll, at [106], their Honours held that the definition of ‘suitable employment’ was such that the medical panel dealing with the matter in that case was ‘required to consider whether the entirety of the applicant’s relevant personal circumstances — that is, her injury caused incapacity and other relevant personal circumstances which we have discussed — meant that she would likely be unsuccessful in obtaining employment because she had nothing ‘merchantable’ to sell’. Further, there are indications in Richter v Driscoll, especially at [80], that their Honours did not consider that Barwon Spinners required that a different approach be taken to the question of ‘suitable employment’ in serious injury applications. However, for the avoidance of doubt, we confirm that, in the present case, in fairness to the respondent, we have assumed the correctness of the position advanced by the respondent (and not squarely contradicted by the applicant), namely that the test is one of physical capacity, not employability, in serious injury applications. However, the outcome would be the same in the matter before us regardless of the proper approach to be taken to the questions of statutory construction involved. Accordingly, it has not been necessary for us to form any view for ourselves on those questions, and we have not done so.”
126 Obviously enough, the concept of employability or “merchantability” broadens the concept of what is “suitable employment”. Although the decision of Richter v Driscoll[76] dealt with statutory benefits, whereas Harris[77] was dealing with “suitable employment” as used in serious injury applications, there would appear to be no good reason why the same words constituting “suitable employment” should be interpreted in different ways.
[76][2016] VSCA 142
[77]Op cit
127 However, the definition of “suitable employment” makes clear that it refers to employment in work in which the worker is “currently suited”, having regard to a number of matters, and in particular, the worker’s education, skills and work experience. Furthermore, employing the test set out in Harris,[78] the suitable employment in question must be something that involves a job or jobs that the subject worker is “able to do on a regular and consistent basis”.
[78]Op cit
128 After a consideration of all of the evidence, I have come to the view that the plaintiff has discharged his onus in establishing that he is incapable of performing the purported “suitable employment” submitted by the defendant.
129 Before expressing my reasons for such a finding, it is important to bear in mind, in my view, that it was the plaintiff, who on realising that he had suffered a significant left foot injury which rendered him clearly incapable of returning to his pre-injury work with the defendant, and indeed, to other jobs which he had done prior to his employment with the defendant – for example fire fighter, chainsaw operator, fibreglass panel beater and labourer on a wharf – decided that he would make a genuine and concerted effort to retrain himself so he could return to full-time work as soon as possible.
130 To this end, the plaintiff initially approached the various facilities offering the courses that he wished to undertake – in particular, the two Certificate IV courses – one in OHS and one in training and assessment ꟷ and then approached the defendant, who brought one of the rehabilitation organisations into play. The point to be made is that at least initially, the plaintiff was the driving force to retrain himself and hopefully resume full-time employment.
131 Unfortunately, once those courses commenced, I consider that the slow realisation overcame the plaintiff that he was academically ill-equipped to handle both the OHS course (which he did online) and the Training and Assessment course. In the same vein, although he coped with the first one or two modules of dealing with a computer, again, as things became more difficult, he found such activity largely beyond him.
132 The thrust of the cross-examination of the plaintiff was taking him to both his own early views and those of his treating doctors that he would be capable of undertaking some type of work as suggested – a teacher teaching a TAFE course, working in occupational health and safety or some involvement with computers and indeed, there was support from treaters and the plaintiff willing to commence to undertake this work with a desire to get back as soon as possible to full-time work.
133 I do find, as I have stated, such were academically beyond the plaintiff. This was exacerbated by taking on both courses and his advancing computing work. However, having read all the material and observed the plaintiff, I have little doubt that each of the courses were academically challenging for the plaintiff, as was the increasing sophistication in the computer courses. Indeed, one only has to look at the email sent by the plaintiff to Ms McIntosh on 12 March 2020, which makes clear, not only by the content of the email, but also the spelling contained within it, and the format of the email, that the plaintiff was having significant ongoing difficulties with such courses.
134 When the Court queried the plaintiff as to how he felt after coming to the realisation that the courses he had undertaken were academically beyond him, he stated “it was devastating”.[79]
[79]See generally T36, L16 – T37, L31
135 Accordingly, in support of the finding I have made, I refer to the following:
(a)the plaintiff’s educational background and his academic capacity are not sufficient to meet the requirements of the various courses that he undertook; and
(b)furthermore, this issue was exacerbated, and would continue to be exacerbated, by the ongoing drug regime that he was having to control ongoing pain in the ankle, which did not assist when being required to take in reasonably sophisticated information.
136 Again, perhaps more particularly, I am of the opinion that even if in the unlikely event that the plaintiff could succeed in one or both courses, the job of being a trade teacher or working in the occupational health and safety area would be unsuitable employment, as such requires being on your feet for periods of time, inconsistent with the various recommendations made by doctors. The position of an occupational health and safety officer would be extremely difficult, given the requirement that he may be required to climb ladders, travel over rough ground, or manoeuvre into difficult areas, with his foot injury.
137 I refer to the expert opinion of the foot and ankle orthopaedic surgeon, Mr Edwards, who examined the plaintiff on 9 January 2020. In an extensive and carefully worded report, Mr Edwards opined that the plaintiff had suffered an injury to the lateral collateral ligaments of his ankle and probably also suffered injury to the tibialis posterior at the same time. Following conservative management, he had an ankle arthroscopy and ligament reconstruction, and then subsequently underwent a calcaneal osteotomy and surgery to the tibialis posterior, all now causing diffusely altered sensation of the foot.
138 In particular, Mr Edwards opines, and I accept, that the plaintiff is precluded or restricted in relation to pushing or pulling; squatting or kneeling; prolonged standing and prolonged walking for the foreseeable future.
139 I am of the opinion that the plaintiff is not a suitable candidate to become a full-time sales representative. It is unclear what this precisely involved. As I have noted, any job where the plaintiff is required to be on his feet for any time is inappropriate. Furthermore, given his educational and work background, I very much doubt that he is suited to being a sales representative. As pointed out by the plaintiff in his final affidavit,[80] the plaintiff asserts, and I accept, that he could not work as a sales representative, particularly if there was much driving, which he could not do, or any particular lifting, of which he would struggle. More particularly, he stated:
“I am not a salesman, I have never worked in sales, and I do not believe that I am suited to such work.”[81]
[80]See exhibit 1, at paragraph [31], page 20 PCB
[81]See exhibit 1, at paragraph [31], page 20 PCB
140 When one looks at the plaintiff’s employment background, which has involved outdoors hard work, I accept such view. Again, his limitations in using a computer, his literacy skills (preparing reports and the like) and his ability to present himself as a “salesman” would raise significant difficulties for the plaintiff. I have come to such view, in part, after observing the plaintiff giving his evidence and being cross-examined. Although I consider that the plaintiff was “straightforward” in his descriptions of things and at no time attempted to mislead the Court, I found him to be not only overly sophisticated in his social skills.
141 In no way do I consider that the plaintiff has decided not to pursue these courses (including the computer courses) for any reason other than those he has stated. Such would be inconsistent with his desire to get back to work as quickly as possible in some type of full-time job and the devastation that he experienced when realising the courses which he hoped to bring him back to full-time work were beyond him.
Conclusion
142 I am satisfied that the plaintiff has discharged his onus in establishing:
(a)that the impairment of his left foot has resulted in a loss of earning capacity consequence that is, when judged by comparison with other cases in the range of possible impairments or loss of body function can fairly be described as being more than “significant or marked” and as at least being “very considerable”;
(b)that the plaintiff has discharged his onus in establishing that he has a loss of earning capacity of 40 per cent or more within the meaning of the Act; and
(c)that after the date of this decision, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
143 Of course, as I have already recorded, a worker who satisfies the loss of earning capacity requirements under s325 of the Act is entitled, as a matter of statutory construction, to have leave to bring proceedings for both “pain and suffering damages” and “pecuniary loss” damages.
144 Accordingly, I find for the plaintiff. Pursuant to s335(2)(d) of the Act, I give leave to the plaintiff to bring common law proceedings for both pain and suffering damages and pecuniary loss damages for a left foot injury which occurred during the course of his employment with Alcoa Portland Aluminium Pty Ltd on or about 17 February 2017.
145 I will hear the parties on the question of costs.
Annexure “A”
1 The plaintiff tendered the following material:
Exhibit 1
– affidavits of the plaintiff sworn on 4 June 2019 and 5 February 2020
(such material found at pages 8-21 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2
– bilateral ankle x-ray dated 1 March 2017
– ultrasound of the ankle or heel (left foot) dated 1 March 2017
– MRI of the left ankle dated 6 March 2017
– operation record dated 17 June 2017
– operation record dated 15 March 2018
(all such material found at pages 40-46 of the PCB).
Exhibit 3
– reports of the treating orthopaedic surgeon, Mr Scott Mason, dated 19 April 2017, 8 May 2019 and 30 January 2019
(such material found at pages 62-84).
Exhibit 4
– report of the treating general practitioner, Dr M Bashour, dated 16 April 2017
(such report found at page 65 of the PCB).
Exhibit 5
– medico-legal report of the orthopaedic surgeon specialising in leg and foot surgery, Mr William Edwards, dated 9 January 2020 (at pages 66-74 of the PCB)
– reports from Dr Kilner Brasier dated 28 February 2020 and a supplementary email from Dr Brasier dated 18 April 2020
(all such material found at pages 75-81 and page 122 of the PCB).
Exhibit 6
– 2020 “What Jobs Pay” Vocational Education Teacher Victoria 2018 and “What Jobs Pay Safety Inspector Victoria 2018
(such material found at pages 81-82 of the PCB).
Exhibit 7
– two medico-legal reports from Dr Graeme Doig dated 31 October 2018 and 8 July 2019
(such material found at pages 41-53 of the Defendant’s Court Book (“DCB”)).
Exhibit 8
– supplementary email, dated 12 March 2020
(such email found at page 123 of the PCB).
Exhibit 9
– clinical notes from the Seaport Medical Centre
(such notes found at pages 84-112 of the PCB).
2 The defendant sought to provide the following material:
Exhibit “A”
– medico-legal reports of the occupational physician, Dr Gary Davison, dated 18 September 2018, 9 April 2019 and 3 July 2020
(such reports found at pages 13-40 of the DCB).
Exhibit “B”
Rehabilitation documents consisting of:
– facsimile transmission from WorkFocus Australia to Dr Bashour dated 16 April 2018
– Recovre Vocational Assessment Report dated 20 December 2018
– WorkFocus Report Job Seeking Service Report dated 11 February 2019
– WorkFocus Joint Return to Work Job Seeking Plan dated 10 May 2019
– WorkFocus Australia Job Seeking Review dated 3 July 2019
– WorkFocus Australia Job Seeking Review dated 29 October 2019
– WorkFocus Australia Job Seeking Review dated 28 November 2019
– WorkFocus Australia Job Seeking Review dated 25 February 2020
(all such material found at pages 71-136 of the DCB).
Exhibit “C”
– 2019 Enrolment Form, dated 13 August 2019
– 2019 Pre-Training review evaluation form dated 13 August 2019
– Pre-Training Review Report
– Certificate IV in Training and Assessment dated 13 August 2019
– Statement of Attainment – Trainer Presentation Skills, Short Course Program 2019
– Statement of Attainment Certificate IV in Training and Assessment from 2019
– Course Withdrawal Form, dated 30 March 2020
– an email from Stephen Hoggan regarding rehabilitation services dated 23 June 2020
(all such material found at pages 235-251 DCB).
- - -
0
6
0