Waterston v Hazeldene's Chicken Farm Pty Ltd
[2014] VCC 1925
•21 November 2014
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY
Case No.
| JAMES WILSON HUNTER WATERSTON | Plaintiff |
| V | |
| HAZELDENE’S CHICKEN FARM PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE CAMPTON | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 24 & 27 October 2014 | |
DATE OF JUDGMENT: | 21 November 2014 | |
CASE MAY BE CITED AS: | Waterston v Hazeldene’s Chicken Farm Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1925 | |
REASONS FOR JUDGMENT
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Subject: Serious injury-injury to the left hip-pain and suffering and loss of earning capacity
Catchwords: Serious injury – left hip – pain and suffering – loss of earning capacity.
Legislation Cited: Accident Compensation Act 1985 (Vic) s134AB.
Cases Cited: Tatiara Meat Co Pty Ltd v Tyrone Kelso [2010] VSCA 12; Peak Engineering v VWA [2014] VSCA 67.
Judgment: Leave granted for pain and suffering damages and loss of earning damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Mighell QC | Arnold Dallas McPherson |
| D Purcell | ||
| For the Defendant | W R Middleton QC R Kumar | Hall and Wilcox |
HER HONOUR:
Introduction
1 This is an application for leave to bring proceedings for damages pursuant to s 134AB(16)(b) of the Accident Compensation act 1985 (the Act ) for injury suffered by the plaintiff to his left hip in the course of his employment with the defendant on 25 May 2010.
2 The application is with respect to both pain and suffering and economic loss.
3 There is no dispute regarding that nature of the injury suffered by the plaintiff to his left hip in the course of his employment being a labral tear and aggravation of pre-existing degenerative changes in the hip.
4 However, the pain and suffering consequences of this injury were submitted by the defendant not to amount to a serious injury and while it was conceded that the plaintiff could no longer do his heavy pre-injury work it was contended that he had retained a work capacity.
5 The plaintiff relied on two affidavits sworn by him on 22 April 2014 and 5 July 2013 and on an affidavit sworn by his wife on 24 September 2014, otherwise the parties relied on the material contained in their respective court books.
Background
6 The plaintiff was born on 21 February 1961 and is 52 years old. He left school after Form 5 and commenced an apprenticeship as a fitter and machinist at Johns & Waygood Ltd of Clayton.
7 After completing his apprenticeship the plaintiff worked for the Water Board in Mornington for four years. He has also worked for Johns Perry Lifts ( a year), BHP at Hastings (nine years) and at Peninsula Pump Service, Dromana, as a Pump Technician.
8 The plaintiff married in 1990 and has four adult children. In 2009 he moved to the Bendigo area and settled on a 40 acre property at Lockwood. He commenced employment with the defendant in the same year as a labourer moving on to become a leading hand and diesel fitter.
Injury to right knee 2002-2003
9 In about 2002 or 2003 the plaintiff was working for a friend who operated a food distribution company. He twisted his right knee coming down a ladder and had pain. As a result he was off work for some time and lodged a WorkCover claim.
10 The plaintiff attended his general practitioner who referred him for an arthroscope,. After this surgery the plaintiff’s right knee recovered and he did not suffer any further incapacity at work or in his recreational activities.
Injury to Left Hip 25 May 2010
11 The defendant operates a chicken processing and distribution business and has about 250 pieces of mobile plant and equipment. On 25 May 2010 when the plaintiff was exiting a shipping container which had been modified to store spare parts a mesh platform which formed a make-shift step gave way and he “skidded out and did the splits” and landed backwards on the top of the step heavily on his left hip.[1]
[1] PCB4
12 In his affidavit of 5 July 2013 the plaintiff described feeling “immediate severe pain in his hip and thigh”. He felt like his “hip had come out of its socket.” He was unable to get up and two workers had to help him. The pain was so severe he was nearly passing out.[2]
[2] PCB5
Medical Treatment
13 An ambulance was called and the plaintiff was taken to Bendigo Hospital where he was examined and had x-rays. He was sent home with crutches and provided with Panadeine Forte.
14 The plaintiff remained off work for approximately three months. On 1 June 2010 he attended his general practice where he saw Dr Maria Adan-Bautista. By that time his left hip was still swollen and tender.
15 The plaintiff’s general practitioner referred him to Mr Dugal James, orthopaedic surgeon, and continued to provide him with WorkCover certificates. He was also referred for physiotherapy three times a week.
16 On 8 June 2010 the plaintiff attended Mr James, who advised him to continue using crutches and to have an MRI scan. The scan which was performed on 10 June 2010 revealed that he had a labral tear on the left hip and features consistent with femoro acetabulum impingement.[3]
[3] PCB 38
17 The plaintiff continued physiotherapy and had hydrotherapy and acupuncture two to three times per week for about six months. After some months using the crutches he commenced to use a single crutch. Three months after the accident he returned to work on light duties starting two hours per day and progressing to three hours a day.
18 Dr Shalendra Sharma took over the plaintiff’s care on 25 August . After the plaintiff had been in his care for a few months Dr Sharma noticed no further improvements in his hip symptoms.[4]
[4] PCB42
19 On 6 October 2010, the plaintiff was referred back to Mr James who on 29 November 2010, reported that the plaintiff still had a mild limp evident and that the hip was mildly irritable on examination. Mr James recommended a intra-articular steroid injection and they discussed the prospect of an arthroscopic inspection if there was no improvement after the injection.[5]. This injection which took place on 18/11/2010 did not relieve the plaintiff ‘s hip pain.
[5] DCB53
Further Injury to Right Knee
20 On 29 June 2011 the plaintiff suffered a further injury to his right knee. In his affidavit of 24 September 2014 the plaintiff described this incident as occurring when he was wheeling some tyres from a truck and a wheel got away from him. His left hip gave way and he fell and as he fell he “heard a crack in his right knee which then swelled up”.[6]
[6] PCB25.
21 The plaintiff was referred back to Mr James who in his report of 28 March 2012 referred to the plaintiff representing for “a new injury which had occurred to the left knee.” However, it is clear that this is simply a typo as in the same paragraph Mr James described the plaintiff as loosing purchase on the tyres and in the process of trying to regain control twisting on his “right knee and feeling significant pain at the lateral aspect of that knee.”[7]
[7] PCB40.
22 The plaintiff was cross-examined about the fact that in Mr James report of 28 March there was no reference to the left hip giving way. Nor was there any reference to this happening in Dr Yong’s reports and the injury claim form of 29 July 2011.
23 The plaintiff was “pretty sure” that he had told Mr James about his left hip giving way. With respect to the injury claim form the plaintiff thought that he probably told the person who filled in the claim form “but she failed to write it down”.[8]
[8] T25-27.
24 I note that in his report of 18 July 2014 Dr Murphy took a history that the plaintiff’s left hip “felt weak and gave way which caused him to fall”.[9] It is not necessary for the purposes of this application to determine this issue. I found the plaintiff to be an genuine and honest witness. Irrespective of whether or not his left hip actually gave way I accept that this is his honest recollection of the event.
[9] PCB48.
25 An MIR on 18 August 2011, revealed a lateral meniscal tear [10]. On 14 September 2011, Mr James performed an arthroscopic inspection and debridgement and “found as expected chondral damage over both aspects of the patellofemoral joint and the medial femoral chondyle. There was a tear at the posterior third of the medial meniscus which was debrided and chondroplasty was performed.”[11]
[10] PCB 40.
[11] PCB 40.
26 In his affidavit of 5 July 2013 the plaintiff described this surgery as “being successful and as relieving his pain”. He was able to return to walking and modified duties at work . However, although it had largely recovered his knee was still a problem “when he shifted his weight to the right”.[12]
[12] PCB 26.
27 In his report of 28 March 2012 Mr James referred to the plaintiff’s recovery from the knee procedure as “satisfactory and uneventful.” He considered that his impairment and future disability related to the cartilage tear and chondral damage were likely to be minimal.[13]
[13] PCB 41.
28 In same report Mr James also stated with respect to the plaintiff’s right knee that “following the injury the pain has persisted and he has been left with a prominent limp”. However, it is clear from the context in which this statement was made that Mr James was referring to the situation prior to the operation.[14]
[14] PCB 40.
29 With respect to the plaintiff’s hip Mr James commented that he “seemed to recover well from his original hip injury.” The plaintiff agreed that his hip got better .He described it as plateauing to a certain point in 2011 but being worst now than it was back then.[15]
[15] T32
30 In his report of 29 May 2012 Dr Sharma described the plaintiff’s hip symptoms as being “about the same as before.” He also reported that the plaintiff was still “troubled by how much he could do at home”. However, he described the plaintiff as being happily back on full time modified duties. (no bending, stretching, heavy lifting avoiding prolonged and excessive hip movements).[16]
[16] PCB44
31 The plaintiff managed to work full time Monday to Friday 8am to 4pm as a small engine mechanic in a job he described as being “made up” for him. He continued to struggle with his left hip which caused pain and clicking. The pain in his hip was such that he was taking about 10 Panadeine per week and anti-inflammatory medication of around 6-8 a week.[17]
[17] PCB25
32 On 22 November 2012 the plaintiff was made redundant and he has not worked since then. He claims that since his employment was terminated he has applied for about 25 to 30 jobs. Although he did not know if he had the physical capacity to do the jobs he wanted to try .He has been rejected in all these applications.[18]
[18] PCB29
33 On 9 September 2013, Dr Sharma reported that the plaintiff continued to have an abnormal gait with left hip pains with restricted movements. He found it difficult to do anything that involved prolonged weight bearing with repetitive movements of the left hip. He lived on acreage in Lockwood South and “has found that he struggles with a lot of physical work that he could do easily before the injury”.[19]
[19] PCB45
Finding Regarding Injury34
Causation
35 The nature and cause of the plaintiff’s injury is not disputed. The medical opinion supports a finding that on 25 May 2010 in the course of his employment with the defendant the plaintiff suffered a labral tear on the left hip and aggravation of pre-existing degenerative change in the hip.[20]
Pain and suffering Consequences 36
[20] Mr James, Dr Murphy, Mr Kossmann, Dr Young and the MIR of 10 June 2010.
37 In Hayden Engineering v McKinnon [2010] President Maxwell set out guidelines regarding the evidentiary basis of pain assessment. It is not only what the plaintiff sais about pain, it is what he does about pain in terms of medication and resting, and it is what the doctors say about the extent and intensity of pain and, finally what the objective evidence shows about the disabling effect of pain.
38 In his affidavit of 24 September 2014 the plaintiff stated that the pain in his left hip is much the same as when he swore the first affidavit. If anything the pain was getting worse. He was still physically limited in what he could and could not do and remained restricted. He had good and bad days with his hip and it hip ached constantly. On bad days his hip joint was very tender, walking was painful and movement was restricted. He had about three to four bad days a week.[21]
[21] PCB31-32.
39 He saw his GP every month and his medication included Mersydol (four a week at a minimum eight at a maximum ) and Ibuprofen. The Mersydol replaced prescribed Panadeine Forte when he had difficulties concentrating especially when driving.
40 In his closing address Counsel for defendant relied on Tatiara Meat Co Pty v Tyrone Kelso [2010] VSCA 12 when submitting that the mere fact that the plaintiff complained of pain did not justify the finding of a serious injury. In particular in circumstances where the plaintiff:
· Complained of a lot of pain but did little about it;
·Only went to the doctor once a month;
·Had a low level of medication.;
·Did not ask Mr James to perform an arthroscopy see whether the condition had advanced.;
·Had chosen to have surgery his right knee but not his left hip;
· Had returned to work and completed modified full time duties.
41 The defendant also relied on Peak Engineering v VWA [2014] VSCA 67 in submitting that it was necessary to separate consequences attributable to the hip injury from consequences attributable to the knee injury.
42 With respect firstly to the plaintiff’s right knee I accept the plaintiff’s evidence that he gets “an occasional crick but no pain.”[22] In addition that while in the past from time to time it felt weak like it might give way and there was occasional pain and swelling “now it is good”.
[22] T38.
43 While it is possible that the plaintiff may suffer from further episodes of swelling or weakness I accept that any impairment will be only temporary and that it will not have much effect on his life. In making this finding I have taken into account that Mr James was of the opinion that any impairment and future disability related to the knee injury were likely to be minimal.[23]
[23] DCB 41.
44 Returning to his left hip the plaintiff struck me as being a genuine and straight forward witness and I accept his evidence that he has not been free of left hip pain since 25 May 2010 and that the hip pain is getting worst.
45 With respect to his hip it appears to me that the plaintiff is trying his best to cope with the pain taking by doing his recommended exercises at home and taking medication (Mersyndol and Ibuprofen) which does not impair his concentration. [24] While he was previously taking Panadeine Forte it affected him quite severely to the extent that he could not drive.[25]
[24] T55-56.
[25] T16.
46 I accept that towards the end of 2011 was the last time he had physiotherapy or hydrotherapy. However, that when he left the physiotherapy place they said that they’d done pretty much all they could do for him.[26]
[26] T36.
47 With respect to the plaintiff’s choice not to have an arthroscopy or hip replacement procedure I accept that he is anxious about such medical procedures. When the plaintiff was cross-examined as to why he had not taken up the arthroscopy option with Mr James he said that he “was’nt ready for him to dive into his hip.”[27]
[27] T33.
48 With respect to having surgery on his hip the plaintiff’s evidence was essentially that although he had a lot of pain in his left hip he was frightened to have the operation at this stage in time.[28]
[28] T16.
49 While he had an arthroscopy on his knee he said that this was because he could not bend his knee and it was a case of “either walking with crutches or walking without crutches”.[29]
[29] T16.
50 However, in the particular circumstances of this case it is probably fair to say that the stronger aspect of the plaintiff’s case is with respect to the effect of his hip injury on his mobility and ability to perform the tasks on the farm In addition on his recreational activities.
51 In his affidavit of 5 July 2013 the plaintiff claimed that prior to suffering the injury to his hip he was extremely fit and active. He loved performing the whole range of farm activities on his property. He performed almost all the work required with 20 sheep, 5 cows and the horses. He also worked very hard putting up fences.[30]
[30] PCB 19-30.
52 He was an avid water skier and took pleasure in tinkering with vehicles and servicing cars. He owned a motor home and the family regularly went on long walks to Cape Shank and along beaches.[31]
[31] PCB 19-30.
53 The plaintiff and his wife had a house built on their property. The house was built with a view to the plaintiff doing a significant amount of finishing work around the property particularly outside verandahs and landscaping of the garden.[32]
[32] PCB 19-30.
54 The plaintiff is still able to do some work around the house and farm. He can feed the cows most days but he is helped by his wife. He checks and repairs fences and is able to do some mowing and slashing. ( he has a ride-on mower. ) Every six weeks or so he has a tractor he can use.
55 However, I accept that as a consequence of his hip injury and the physical limitations it causes him the plaintiff can no longer enjoy the farming activities as he once did and that his enjoyment of life is significantly reduced .In particular I accept that due to his left hip injury and excluding his knee injury that the plaintiff:
· Has been unable to complete the outside verandah and landscaping;[33]
[33] PCB33.
· Can no longer water ski which was once a passion; [34]
[34] PCB26-27.
· Has sold his motor home because he had difficulty climbing up the stairs and getting into bed;[35]
[35] PCB 27.
· Had to sell the sheep because handling them caused his pain to worsen;[36]
[36] PCB 27.
· Finds it difficult to tinker with vehicles due to severe hip pain when he twists or turns or reaches up to do the work.;[37]
[37] PCB 27.
· Has to rely on others and wait for his sons to help with tasks which are heavy;[38]
[38] PCB 28.
· Has gained a lot of weight (25 kilograms).[39]
· Has difficulty in sleeping due to hip pain and on a good night he wakes twice in discomfort and on a bad night barely gets any sleep at all[40]
· On occasion’s has problems getting his underwear and shoes on.[41]
[39] PCB 52&28.
[40] PCB 32.
[41] PCB 28.
56 The plaintiff’s claims regarding the problems that he now has with physical work are supported by Dr Sharma’s who on 9 September 2013 , reported that he lived on acreage in Lockwood South and has found that he struggles with a lot of physical work that he could do easily before the injury.[42]
[42] PCB 45.
57 There was no video evidence which was inconsistent with the plaintiff’s claims and they were supported by his wife who in her affidavit sworn on 24 September 2014.[43]
[43] PCB 35-37.
58 While the plaintiff was able to return to work on light modified duties he is not able return to his pre-injury manual work.
59 With respect to the plaintiff’s prognosis:
· Mr Kossman considered that it was poor as the natural history of symptomatic FAI with a labral tear in the setting of established hip osteoarthritis was of a progressive nature.[44]
[44] PCB55.
· Dr Sharma described the plaintiffs incapacities as likely to be long term.[45]
· Dr Murphy was of the opinion that in the short –medium term the prognosis was reasonable but that the plaintiff had a lesion which would predispose him to develop early osteoarthritis to the left hip. The plaintiff had a substantial chance to undergo a total hip replacement within the next ten years.[46]
· Dr Yong described him as having a significant functional reduction from his continuing condition and given the clinical progress over the past two years was of the opinion that the plaintiff should consider surgery
[45] PCB 46.
[46] PCB50.
60 While back in 2012 Mr James considered that the plaintiff seemed to have recovered well from his hip injury I accept that due to the progressive nature of the hip injury it has deteriorated since then and that it is likely to last for the foreseeable future .
61 I find that the pain and suffering consequences of the right hip injury are such that when judged in comparison with other cases in the range of possible impairments or losses of body function they can be fairly described as more than significant or marked and as being at least very considerable.
62 I grant leave for the plaintiff to bring proceedings at common lawto recover damages for pain and suffering.
Work Capacity
63 The plaintiff must establish a permanent loss of earning capacity of 40 per cent or more. The test is comparison between the income that the worker was earning or was capable of earning during that part of the period or within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.[47]
[47] Section 134AB(38)(e) Accident Compensation Act 1985 (Vic)
64 There is no loss of earning capacity if the plaintiff has or would have, after retraining or rehabilitation, and taking into account the worker’s capacity for suitable employment after injury and the reasonableness of the worker’s attempts to participate in any retraining or rehabilitation, the capacity for any employment including alternative employment, which, if exercised, would result in him earning more than 60 per cent of his gross income had the injury not occurred.
Case for the Plaintiff
65 The case for the plaintiff is that given his back ground history in manual work and his age realistically he is without transferrable skills and there is no suitable employment for him. Alternatively that if there is suitable employment for him it is at best limited to part-time work 15 hours per week .
Medical opinion relied on by Plaintiff
66 The plaintiff relies on the following medical opinion regarding his work capacity:
Dr Sharma
67 He has limited capacity and could start work part-time, about three days a week, with restrictions with heavy lifting work that involved kneeling down, crawling, climbing and frequent bending. [48]
[48] PCB 45.
68 Light part time work. avoiding repetitive knee joint involvement, prolonged and excessive weight bearing , jobs that include kneeling crawling, heavy lifting and repetitive hip movements.[49]
[49] PCB46.
Dr Murphy
· He was unfit to return to his pre-injury employment
· He may be fit for alternative employment of a sedentary nature but needed frequent breaks because of his symptoms.
· The maximum hours he could reliably work would be 15 hours per week in in work which did not involve standing or walking more than half an hour at a time or work which involved squatting, kneeling, walking downstairs or walking over rough ground repetitively.
· However, given his age and previous work experience, the plaintiff did not have a realistic capacity for employment.[50]
Mr Kossmann
[50] PCB47-50.
69 He was not fit for his pre-injury employment. He was fit for alternative employment of a sedentary nature. However, he might need frequent breaks because of his symptoms.[51]
Vocational Assessment report relied upon by Plaintiff
[51] PCB51-55.
70 The plaintiff relied on the Evidex report by Ms George who is an occupational therapist. In her opinion further extensive retraining would be required to qualify the plaintiff for a new occupation within his limited functional capacity. However, due to his limited clerical and computer skills, his reduced functional capacity and his lack of experience in high level study, the provision of occupational rehabilitation and retraining in the future was unlikely to lead to a suitable recognised occupation in the open labour market for the plaintiff.[52]
Case for the Defendant
Medical opinion relied on by defendant
[52] PCB 58.
71 The case for the defendant is that the plaintiff has the physical capacity for full time work in the jobs suggested as being suitable in the Vocational Assessments contained in the defendants court book with the restrictions referred to by Dr Yong .
72 The defendant relies on the fact that the plaintiff returned to work on modified duties after he suffered the left hip injury and then again after the injury to his right knee.
Dr Yong
Report 18 May 2012
73 The plaintiff had been successfully redeployed into a role with reduced manual handling requirements. The employment options in the vocational assessment were suitable[53]
[53] DCB 33.
74 In his report of 29 July 2014 Dr Yong was of the opinion that the plaintiff had a current capacity for work with the following (note that he did not have the most recent x-ray) restrictions
· Avoid firm pushing and pulling.
· Avoid squatting or repetitive climbing duties.
· Avoid prolonged standing or walking tasks.
· Avoid lifting more than eight kilograms on a repetitive.
75 The job options (referred to below) identified in the defendants NES vocational assessments complied with the above restrictions and therefore would be reasonable[54]
[54] DCB 42.
76 In his report of 23 October 2014 Dr Yong was of the opinion that The jobs identified (referred to below ) in the Co Work Vocational Assessment were likely to comply with the restrictions and would be suitable. The recommendation was for the plaintiff to start working three full days per week to increase to pre-injury hours over a 2 month period.[55]
[55] DCB 43D.
Vocational Assessment reports relied upon by the defendant
(1) NES Vocational Assessments
The defendant relied on the NES Vocational Assessment Reports of 15 May 2012 and 25 May 2013. The Job options considered to be suitable were:
· Water quality manager.
· Trade teacher.
· Spare parts interpreter.
· Warehousing and Logistics clerk.
· Forklift driver.
(2) Co Work Vocational Assessment
In addition on the Co Work Vocational Assessment report, dated 10 October 2014, as identifying same suitable employment options for the plaintiff. with the addition of Customer Service Officer.
Finding
77 While the plaintiff can no longer do his pre-injury work and manual work of a heavy nature I accept that he has a physical capacity to do work of a lighter nature similar to the one set up for him by the defendant.
78 I consider that most of the other jobs suggested as being suitable employment are unrealistic given his age, the physical requirements and his lack of clerical experience and computer skills.
79 The Evidex Report indicates that routine functions of a water and wastewater plant operator would require the plaintiff to engage in daily physical exertion, including bending, twisting, lifting, climbing, pulling and carrying. This renders the job inappropriate for the plaintiff.[56]
[56] PCB 69.
80 In the same report, it was claimed that the position of vocational education teacher was inappropriate for the plaintiff due to demands it would place on the plaintiff for clerical and IT skills to complete assessments, lesson plans, and teaching materials.[57]
[57] PCB 66.
81 In addition I accept the medical opinion of Dr Murphy and Dr Sharma that he could only work part time. In accepting Dr Sharma’s opinion I have taken into account that he has treated that plaintiff since 25 August 2010. I consider that as his treating practitioner Dr Sharma he is well qualified to make a fair and measured assessment of the plaintiff’s working capacity.
82 It was submitted for the defendant that both Dr Sharma and Dr Murphy took into account the plaintiff’s knee injury when prescribing their work restrictions.. However, other than the requirement that he avoid repetitive knee joint involvement (Dr Sharma) I consider that as a matter of commen sense the other restrictions would still apply even if there had been no knee injury.
83 Dr Sharma is not alone in his opinion that the plaintiff can only work part time as Mr Murphy also considers that the plaintiff is limited in the hours he can work being 15 hours reliably. Their opinion is consistent with the plaintiffs evidence regarding the difficulties he was experiencing prior to his retrenchment .
84 While the plaintiff was working full time up until his retrenchment his evidence was that :
· His job was self- paced and he could sit or stand when he wanted to.
· His hip was causing him difficulty and that it was getting worst slowly.[58]
· He was not always able to compete his tasks and he experienced difficulties in servicing equipment away from the bench as he was unable to get underneath to complete the service.[59]
· On the day he was retrenched he was in the usual pain with his hip and he was going to his GP to get a letter for shorter hours[60]
[58] T55.
[59] T55.
[60] T45 &46.
85 While the plaintiff agreed that after his retrenchment he had applied for some 30 jobs without success I accept that he was” desperate for money to try and keep them afloat “[61]and he was “applying for everything and anything.”[62]
[61] T48.
[62] T48.
86 The figures provided with respect to the plaintiffs pre-injury earnings revealed that in the year ending 30 June 2011, gross earnings of $50,847 which equates to an average of $977 a week. The 60% threshold of pre-injury earnings is therefore $586 per week.
87 The role of metal engineering process worker was reported to have an average full-time gross weekly earnings for a 53 year old of $1,334. At 16 hours per week, this role would have therefore netted $533.60 per week.
88 There was a letter from Flexipersonnel[63], dated 20 October 2014, based on a worker employed and paid under the Manufacturing and Associated Industries and Occupations Award 2010 as a light hand packer/process worker was $17 - $35 gross per hour. Respectively, these roles would net $272 and $560 per week.
[63] DCB79.
89 On these figures, working part time 16 hours per week, the plaintiff has established that he has the requisite loss of earning capacity. Consequently I grant leave for the plaintiff to bring proceedings at common law to bring proceedings to recover damages for economic loss.
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