Vitkauskas v Total Logistic Solutions
[2013] VCC 867
•14 June 2013
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01623
| KENNETH LYLE VITKAUSKAS | Plaintiff |
| v | |
| TOTAL LOGISTIC SOLUTIONS AUST PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 13 and 14 June 2013 | |
DATE OF JUDGMENT: | 14 June 2013 | |
CASE MAY BE CITED AS: | Vitkauskas v Total Logistic Solutions & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 867 | |
REASONS FOR JUDGMENTS
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering and loss of earning capacity damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted to the plaintiff to institute proceedings for the recovery of pain and suffering and pecuniary loss damages arising out of injury sustained in his employment with the defendant in October and November 2007.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T J Seccull with Mr N R Dubrow | Saines & Partners |
| For the Defendants | Mr P B Jens with Mr S A Smith | Herbert Geer |
HIS HONOUR:
1 I have before me an application for leave to commence a proceeding seeking damages for both the pain and suffering and economic loss consequences of injuries suffered by the plaintiff in the course of his employment with the defendant.
2 It is appropriate that I deal with the matter by firstly considering the plaintiff's claim with respect to his capacity for remunerative employment. If the plaintiff is successful with respect to that aspect of the application it follows that the plaintiff is entitled to leave to commence a proceeding claiming damages for both pain and suffering and economic loss.
3 There is no issue that the plaintiff suffered an injury to his lumbar spine in the course of his employment with the defendant. Whilst the plaintiff may well have had some symptoms of back pain prior to the injury the subject of this application, I am satisfied that at the time at which he suffered injury the subject of this application, he had a capacity to undertake a full range of unrestricted employment and that any prior incapacity to his back was not one which was continuing at that time.
4 In these circumstances I am satisfied that the injury suffered by the plaintiff to his back, the subject of this application, is a substantial and material contributor to his current incapacity.
5 The plaintiff has undergone surgery. The outcome of the surgery was opined upon by the treating neurosurgeon, Mr de La Harpe, in March 2013 in the following terms:
“I don’t believe that Ken has a capacity to return to any form of manual labour. It may be possible for him to return to only a sedentary occupation depending on his skills and education background. There is a small likelihood of a deterioration of his condition with increasing degeneration of the lumbar discs.”
6 A number of medical reports are relied upon by the parties. Those which are not current and do not deal with the plaintiff’s condition at the present time are of no great assistance to me.
7 I note that the plaintiff was seen on a number of occasions by Dr Capes, an industrial physician, who, in his most recent report of June 2012, opined:
· that the plaintiff had no capacity for any form of work; and
· that he thought the plaintiff’s incapacity was likely to continue for the foreseeable future.
8 A similar opinion was expressed by Mr Schofield, an orthopaedic surgeon, at the time of his assessment of the plaintiff as at 19 December 2012.
9 I should say that these assessments of the plaintiff were undertaken on the basis that each of the assessors accepted that the plaintiff presented as a genuine historian who gave an accurate account of his symptoms and capacity.
10 I am satisfied that the plaintiff does present in that manner. I am further satisfied that the descriptions by the plaintiff in his affidavits as to his incapacity are truly representative of that incapacity and that he is a reliable witness who is motivated to work, if he was able to within his physical capacity.
11 There are a number of medical reports relied upon by the defendants which opine as to the plaintiff’s capacity, not for his pre-injury duties, but for light alternative work.
12 In my opinion, those reports need to be considered in the context of the fact that in this instance the plaintiff presents as a man:
·who left school at a young age;
·who has spent his life working in what can be described as generally unskilled manual labour and who has lost the capacity for that form of work.
13 I am satisfied in these circumstances, that absent undergoing successful retraining for employment, the plaintiff has lost any capacity for employment within his now limited employment fields, namely those involving light duties.
14 With respect to his prospects for retraining, the starting position as to the analysis of that issue is that the defendants must take the plaintiff as they find him, namely a person:
· who has a history of unskilled work and limited education; and
· who presents with what has been described by Dr Jager and Dr Kornan as a Major Depressive Disorder, to some extent associated with effects of this condition, but equally associated in a primary and significant sense in the opinion of Dr Kornan with the plaintiff’s pre-existing presentation and personality.
15 Dr Jager, who last assessed the plaintiff in January 2011, opined at that time that the plaintiff was unfit for retraining. He expressed that opinion primarily on the basis of the plaintiff’s presentation with respect to his emotional state.
16 My interpretation of Dr Kornan’s position as at the time of his assessment of the plaintiff most recently on 22 November 2012, is that by reason of the plaintiff’s urgent need of treatment to deal with his emotional presentation, rehabilitation was not an option for him at this stage.
17 When one considers the question of rehabilitation, it is not to be lost:
· that the plaintiff suffered his injury in 2007;
· that three years have elapsed since the plaintiff’s surgery and that no rehabilitation has been effective in returning him to employment.
18 Taking into account the opinions expressed by Mr Jager and Mr Kornan, in my view, the prospect that the plaintiff may recover in terms of his emotional state, such that he would be fit to undergo rehabilitation in the future, is purely speculative.
19 In the circumstances I am satisfied that the plaintiff presents with a permanent incapacity for all forms of employment, and that in these circumstances he is entitled to the leave which he seeks in this proceeding.
- - -
0
0
0