White v Murray Goulburn Co-Operative Co Limited and
[2010] VCC 578
•28 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-01546
| HEATHER MAY WHITE | Plaintiff |
| v | |
| MURRAY GOULBURN CO-OPERATIVE CO LIMITED | First Defendant |
| AND | |
| GIO WORKERS’ COMPENSATION (VICTORIA) LTD | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 and 21 May 2010 |
| DATE OF JUDGMENT: | 28 May 2010 |
| CASE MAY BE CITED AS: | White v Murray Goulburn Co-Operative Co Limited and GIO Worker’s Compensation (Victoria) Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0578 |
REASONS FOR JUDGMENT
---
Catchwords: ACCIDENT COMPENSATION – plaintiff suffered a lower back injury – whether the pain and suffering consequences and the loss of earning capacity consequences were at least very considerable: section 134AB(37)(a) and (38)(b) and (c).
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with | Williams Winter |
| Mr G Wicks | ||
| For the Defendants | Mr A Moulds | Wisewould Mahony |
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 15 April 2009 by which the plaintiff applies for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") to bring proceedings to recover damages for injuries suffered by her arising out of the course of her employment with the first defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering and loss of earning capacity.
3 Mr P O'Dwyer QC appeared with Mr G Wicks of counsel for the plaintiff, and Mr A Moulds of counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is her lower back.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • Dr Dumitrescu gave evidence and was cross-examined. • The plaintiff tendered her Court Book ("PCB"), pages 27-108: Exhibit A. • The defendant tendered its Court Book ("DCB"), pages 1-96: Exhibit 1. 6 The application is brought under the definition of “serious injury” contained in sub-s(37)(a) of the Act which requires the plaintiff to prove that she has suffered a permanent serious impairment or loss of a body function.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that she has suffered a compensable injury, that is an injury she suffered arising out of or in the course of her employment on or after 20 October 1999.
(b)
The injury and the impairment must be permanent, that is permanent in the sense that it is likely to last for the foreseeable future.
(c)
Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as more than “significant” or “marked” and as being at least “very considerable”.
(d)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(e)
In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] (2005) 14 VR 622 at paragraph 11
8 I am required by s.134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff's Background and the Incident
9 The plaintiff was born on 23 February 1957. She is now fifty-four years of age. She is a married woman with four adult children.
10 The plaintiff left school when she was sixteen years of age after completing Year 11 at Colac High school. She subsequently worked as a nursing aide and a state enrolled nurse in Colac for about seven years.
11 The plaintiff then married. At first the plaintiff and her husband ran a dairy farm at Koo-Wee-Rup in South Gippsland for about three years. They left the dairy farm and went to Donald, where they ran an hotel for about two years. They then purchased 330 acres of land near Barooga, which they ran as a dairy farmer.
12 The plaintiff and her husband hit upon financial difficulties. They sold 300 acres of land. It would appear that was in about 2007. They retain 30 acres of land on which their farmhouse is situated. The farmhouse has been left vacant. They bought an hotel in Tocumwal, which they continue to run.
13 The plaintiff commenced employment with the first defendant in about April 2001 as a result of the financial difficulties which she and her husband were experiencing. She worked full-time, undertaking four 12-hour shifts per week.
14 On 2 March 2005, the plaintiff was attempting to place a roll of plastic film weighing about 70 kilograms onto a machine. The roll of film was on a trolley. She took the weight of the roll of film on one of her legs in order to lower it down to the height of the machine. In the course of doing so, her foot slipped or gave way, resulting in her suffering immediate severe pain in her right thigh. The pain extended beyond her right thigh into her lower back, right buttock, extending down her right leg through her calf into her right foot, with numbness in her toes.
The Plaintiff's Medical Treatment
15 The plaintiff did not seek medical treatment immediately. She took annual leave over July/August 2005. It was not until 8 August 2005 that she saw Dr Lew, general practitioner.[2]
[2] PCB 60 and 105
16 Dr Lew referred the plaintiff to have a CT scan which was undertaken on 9 August 2005.[3] Dr Lew agreed with the conclusions reached by the radiologist that the plaintiff had suffered a disc lesion at L5-S1, with the possibility that the disc was partially sequestrated.
[3] PCB 50o
17 The plaintiff saw Dr Moncrieff, general practitioner, a colleague of Dr Lew, at the Cobram Medical Clinic, who referred the plaintiff to Mr Chew, orthopaedic surgeon, because the plaintiff continued to complain of pain and numbness in her right leg.
18 The plaintiff first saw Mr Chew 19 October 2005. By that stage the plaintiff was undertaking hydrotherapy and physiotherapy and had been prescribed painkilling and anti-inflammatory medication. The major complaint she made to Mr Chew on that occasion was pain radiating down her right leg with numbness in her toes.
19 Mr Chew referred the plaintiff to have an MRI scan, which was taken on 1 November 2005.[4] He also organised for the plaintiff to have a plain x-ray and recommended that she undergo an epidural injection. The radiologist reported the appearance of a large right paracentral L5-S1 disc extrusion compressing and posteriorly displacing the right S1 nerve root. Mr Chew did not comment on whether he agreed with the radiologist or not, but by inference it would appear that he did.
[4] PCB 51
20 The plaintiff underwent an epidural injection on 29 November 2005. She was subsequently reviewed by Mr Chew. As a result of the plaintiff continuing to complain of pain, Mr Chew referred her to Mr Brighton-Knight, orthopaedic surgeon.
21 The plaintiff first saw Mr Brighton-Knight in January 2006.[5] On that occasion Mr Brighton Knight diagnosed that the plaintiff was not having right leg pain as such, but numbness and dysesthesia, which was slowly improving. He was of the opinion that she was suffering from bilateral lower back pain which was radiating into her buttocks. He concluded that the plaintiff was suffering from a mechanical lower back problem without any neurological involvement.
[5] PCB 54
22 The plaintiff persevered with conservative treatment until she suffered a dramatic deterioration in the level of the pain she was experiencing. The plaintiff saw Dr Dumitrescu, general practitioner, also a medical practitioner at the Cobram Medical Clinic, on 1 May 2007, complaining of more severe pain over the preceding week.[6]
[6] PCB 100
23 Dr Dumitrescu referred the plaintiff to have a CT scan which was taken on 2 May 2007.[7] The plaintiff was referred back to see Mr Brighton-Knight. She saw him in June 2007. On that occasion Mr Brighton-Knight had the results of the CT scan.
[7] PCB 52
24 Mr Brighton-Knight was of the opinion that his clinical impression, together with the conclusions of the radiologist who took the CT scan, were consistent with a progression of degenerative disease in the plaintiff’s lower back. Furthermore, he was of the opinion that the L5-S1 disc had probably worn out, leaving bone on bone articulation at L5-S1. He added that the L4/L5 disc was undergoing the same process. He concluded that the plaintiff was condemned to ongoing persistent low-back pain with occasional flare-ups.[8]
[8] PCB 56-57
25 Mr Brighton-Knight postulated, presumably for the benefit of Dr Dumitrescu in treating the plaintiff, that if the plaintiff had pain one day which resolved the following day that would not be a problem, but if she had pain which caused disability for a week or so, then that would be evidence of that activity being too much for the plaintiff and it would need to be avoided. Dr Lew referred the plaintiff back to Mr Brighton-Knight in June 2009 for a further opinion, because the plaintiff was continuing to complain of pain in her lower back. He did not recommend that the plaintiff have any treatment.[9]
[9] PCB 108
26 The plaintiff has not had any other specialist treatment. She has been treated by the medical practitioners at the Cobram Medical Centre, and principally by Dr Dumitrescu.[10]
[10] PCB 94-105
27 The plaintiff's current regime of treatment comprises having hydrotherapy, occasional weekly use of Panadeine Forte and Panadol and rest.[11]
[11] Transcript 10-11
The Other Medical Evidence
28 Mr O'Dwyer opened the plaintiff's application by informing me that there was little controversy in the medical evidence regarding the diagnosis of the plaintiff's injury. Mr Moulds essentially agreed, although Mr Moulds submitted that the medical evidence points to the plaintiff not having pain and suffering consequences or loss of earning capacity consequences which could meet the statutory test.
29 I have reviewed the medical evidence on both sides and have concluded that there is so little controversy in the medical evidence as to the diagnosis of the plaintiff's injury that I can accept that the plaintiff suffered a disc injury at L5-S1, which resulted in nerve root compression of the S1 nerve root producing right leg pain.[12]
[12] Apart from the medical opinions already discussed: Mr King, orthopaedic surgeon, at PCB 68 and 70c; Mr Westh, orthopaedic surgeon, at PCB 73; Mr Dohrmann, neurosurgeon, at PCB 77; Dr Horsley, occupational physician, at PCB 87-88; Mr Leitl, orthopaedic surgeon, at DCB 5; Dr Barton, consultant occupational physician, at DCB 8 (although Dr Barton simply accepted the diagnoses); Dr Brown, occupational physician, at DCB 15, and Mr Jones, orthopaedic surgeon, at DCB 25
The Issues
30 Mr Moulds submitted:
[13] Transcript 25-26
• that the clinical notes of the Cobram Medical Clinic demonstrate that there were occasions when the plaintiff was pain-free; • that the plaintiff admitted having no right leg pain any longer;[13] • that the plaintiff increased her hours to full-time work in alternative duties in February 2008, evidencing a capacity to function well generally, and certainly in work. 31 Mr Moulds submitted that the aggregate effect of the foregoing must mean that the plaintiff has good function in her lower back for non-work and work activities which militate against the plaintiff being able establish pain and suffering consequences and loss of earning capacity consequences which meet the statutory test.
32 It seemed to me, during the addresses made by Mr O'Dwyer and Mr Moulds, that the application boiled down to those issues.
The Evidence of Dr Dumitrescu
33 Dr Dumitrescu was required for cross-examination. The larger part of Mr Moulds’ cross-examination of her was directed to entries in the clinical notes of the Cobram Medical Clinic.
34 Mr Moulds concentrated principally on the following entries in support of his submission that the plaintiff was occasionally pain-free:
•
26 October 2006 - Dr Lew noted that the plaintiff was working a 40-hour week without heavy lifting, and that her back was relatively comfortable.[14]
•
12 December 2006 - Dr Lew noted that the plaintiff was relatively comfortable in her current working environment collecting cheese samples.[15]
•
13 June 2007 - Dr Dumitrescu noted that the plaintiff was happy with medical restrictions which were to be imposed on her in relation to the work that she was undertaking.[16]
•
11 September 2007 - Dr Lew noted that the plaintiff was not having any trouble with the work she was undertaking, and was happy to increase her work by one hour per day.[17]
•
7 January 2008 - Dr Dumitrescu noted that the plaintiff was not experiencing any back pain and that the plaintiff could work towards working full-time with restrictions on lifting.[18]
•
13 February 2008 - Dr Dumitrescu noted that the plaintiff was increasing her hours. The plaintiff reported being very tired but experiencing no pain.[19]
[14] PCB 101
[15] PCB 101
[16] PCB 99
[17] PCB 99
[18] PCB 97
[19] PCB 97
35 Mr Moulds submitted that the foregoing entries, among others, demonstrated that the plaintiff was not having persistent pain, but pain which was manageable at various times, and indeed, on occasions she had no pain at all.
36 Mr Moulds cross-examined the plaintiff concerning what she said in her second affidavit sworn 3 August 2009, that not only was she no longer suffering right leg pain, that there were times when she had no pain at all, and therefore, the frequency of the pain she was experiencing was intermittent.[20]
[20] PCB 40
37 The plaintiff gave contradictory evidence regarding the frequency of the pain she has experienced. In evidence-in-chief, she said she had pain all the time.[21] During cross-examination, and in particular, when Mr Moulds quoted from her second affidavit, the plaintiff repeated her evidence-in-chief, that she had pain all the time, but when confronted by what she said in her second affidavit, she said that her affidavit was the correct account.[22]
[21] PCB 10
[22] Transcript 26
38 Mr Moulds sought to establish that the medical records and the conduct of the plaintiff in February 2008 demonstrated that the plaintiff was not suffering from persistent pain, but intermittent pain. By February 2008, she had made a sufficient recovery, enabling her to increase her hours of work to full-time. She then resigned. Her reasons for resigning were unconnected with her capacity to work.
39 However, the whole of the evidence paints a rather different picture. Firstly, there were other entries in the clinical notes of the Cobram Medical Clinic which point to the plaintiff having persisting trouble with her lower back, and on occasions, significant deterioration.[23]
[23] The entries of 24 October 2005 at PCB 104; 31 March 2006 at PCB 103; 24 August 2006 at PCB 102; 24 November 2006 at PCB 101; 5 March 2007 at PCB 100; 1 May 2007 at PCB 100; 15 October 2007 at PCB 98, and 6 March 2008 at PCB 97.
40 On my assessment of the clinical notes there seemed to be as many occasions when the plaintiff saw a medical practitioner for trouble she was experiencing with her back as occasions when it was noted that the plaintiff was coping tolerably well. My overall impression is that whilst the plaintiff might have been pain-free on some occasions, that she was in all probability suffering from pain more often than not.
41 After suffering the injury to her lower back, the plaintiff was absent from her employment with the first defendant for about twelve months. She subsequently returned to work performing light duties for about three months, before being assigned to undertake laboratory work for the first defendant.[24]
[24] Transcript 16-17
42 Both Mr O'Dwyer and Mr Moulds referred to correspondence and reports produced by an organisation known as NabEnet[25] which refer to the hours which the plaintiff worked in the laboratory at various times.
[25] The plaintiff was referred to NabEnet by the second defendant for the purpose of supervising the plaintiff's return to work.
43 The correspondence and reports demonstrate that the plaintiff was working the following hours on the following occasions:
•
In August 2007, the plaintiff was working 16 hours per week, and by inference had been working those hours for some time since she commenced laboratory work.[26]
•
In September, October, November and December 2007, the plaintiff was working 20 hours per week in the laboratory.[27]
•
On 18 December 2007, an offer of suitable employment was made to the plaintiff to increase her hours to 40 hours per week by increasing her hours from 20 hours per week to 24 hours per week on 7 January 2008, and then increasing her hours to 40 hours per week commencing on 4 February 2008.[28]
• In February 2008, the plaintiff was increasing her hours.[29] •
On 20 February 2008, the plaintiff resigned from her employment with the first defendant. She had resumed full-time work, that is, 40 hours per week, on 4 February 2008 in accordance with the offer of suitable employment.[30]
[26] DCB 69
[27] DCB 70, 75-78
[28] DCB 79-81
[29] DCB 82
[30] DCB 83
44 In re-examination, the plaintiff explained the reasons why she resigned:
"Q: … Can you remember whether or not you were having any trouble with the increased hours at that time, that is, shortly before you finished work?--- A: I was having more - more pain in the back. Q: You finally resigned, is that correct?--- A: Yes. Q: Why was it that you resigned?--- A: Because I was getting more aches and pains in the back."[31] [31] Transcript 40- 41
45 Mr Moulds cross-examined Dr Dumitrescu at length on the entries in the clinical notes in an attempt to establish that the plaintiff ultimately returned to full-time work in the laboratory in February 2008, because she was capable of undertaking that work, and that her resignation had nothing to do with her capacity to undertake that work.
46 However, my impression of the evidence of Dr Dumitrescu was that she doubted that the plaintiff had the capacity to return to full-time work. She was of the opinion that the plaintiff's desire to return to work was unrealistic.
47 The following excerpts from Dr Dumitrescu's evidence encapsulate the opinion she held about whether the plaintiff was being realistic in her desire to return to work:
"Q:
Then you made this note, and this I'd ask you to tell me whether this accurate or not. ‘Problem more in keeping with lacking in confidence and assertiveness.’ Is that an accurate summary of your opinion at that time?---
A:
I think Heather White has had trouble with lack of assertiveness and I think this is partly why she always returns back to work. I think that was part of the whole picture, that there was - there was an anxiety relating to both wanting to please and wanting to go back to work. And I really wanted her to talk to somebody about her anxieties and her assertiveness and in order to make a - to be able to make a decision about whether she was going back to work because, as you pointed out, there has been a lot of to-ing and fro-ing between staying away from work and then trying to go back to work. But I think consistently overall these (sic) year, the back pain had returned with windows of no pain."[32]
[32] Transcript 72
48 Furthermore, she said:
[33] Transcript 73
"Q: What did you mean?--- A: I meant that her problem - so the very long chat again was about the fact that she seemed to have difficulty in remembering the pain when she didn't have pain, and that when she would have a window of being almost pain-free, or pain-free, which was very short-lived, she would then be optimistic, or unrealistic as it turns out, in wanting to return back to work. And given previous history, I was really concerned that she would go back to work and work towards full-time, have severe pain again and that would have other repercussions. She needed to talk to somebody about how she defined herself and how she - whether she needed to be gainfully employed full-time in order to feel that she was a worthy human being, so no, this certainly has nothing to do with the pain, this certainly is to do with the fact that I didn't think that she was going to do it. Again I didn't write it down."[33]
49 And during re-examination, she said:
[34] Transcript 79
"Q: Mr Moulds was also asking you about the entry on 7 January 2008 in combination with that entry on 13 February 2008, and suggesting to you that she was working up to full-time and then later at full-time without complaint of pain. There is the note that you make on 7 January 2008, that's ‘I think can work towards full- time with lifting restrictions’, and Mr Moulds conceded you weren't saying she could but you thought you (sic) could work toward that. In retrospect, and particularly in the context of the entry that you make on 6 March 2008, three months later with that exacerbation while vacuuming, in retrospect what do you think about that suggestion that you thought she could work towards full-time with restriction?--- A: I don't think it needs to be retrospectively. I thought that at the time, that she was probably being unrealistic but that she can work towards going full-time. Given her past history, I could predict that there were going to be problems, but if she was willing to try and work towards it and cope, then I was very happy to be encouraging, given the fact that she had mechanical pain and she wasn't going to injure herself."[34]
50 Dr Dumitrescu acknowledged that the clinical notes did not reflect the more extensive evidence she gave of her impressions of the plaintiff and her opinion as to the plaintiff's capacity to work.
51 However, I think it is a grave mistake to assume that clinical notes made by a busy general practitioner comprise the whole of a consultation. The very nature of the clinical notes in this case demonstrate that the notes are cryptic in nature and designed to serve the purpose of the treating general practitioner, that is, to record sufficient to remind the general practitioner of the nature of the complaints made by the patient, the opinion of the general practitioner and the treatment afforded to the patient.
52 It seems to me that the submissions made by Mr Moulds, that I should be cautious in accepting the whole of the evidence of Dr Dumitrescu, have to be measured by, firstly, my impressions of Dr Dumitrescu and whether she was being an advocate for the plaintiff, and, secondly, whether the oral evidence of Dr Dumitrescu is at such odds with the clinical notes that I should prefer the clinical notes because of the strong likelihood that the clinical notes are a correct record of what occurred in the consulting room at the time of the relevant consultation.
53 My overall impression of Dr Dumitrescu was of a very articulate medical practitioner who was completely aware of the facts relevant to the treatment of the plaintiff. I considered that her evidence was just about the best evidence I have heard from a general practitioner in the time I have been a judge. Her evidence was marked by clarity, logic and a common sense evaluation of the plaintiff.
54 Dr Dumitrescu's impressions of the plaintiff marry up with my own. I was urged by Mr O'Dwyer to conclude that the plaintiff had a tendency to agree with the cross-examination conducted by Mr Moulds far too readily. I think there was an element of that in the way in which she gave her evidence. She struck me as being very quiet, reserved and reluctant to resist propositions put to her even where they were against her interests.
55 However, it is difficult to draw the line where I should be cautious about accepting the plaintiff's evidence during cross-examination given the fact that she gave answers to questions which were fairly put to her which he was entitled to answer in any way she pleased so long as answers were responsive. I will deal with what I accept of the plaintiff’s evidence later.
Serious Injury
Pain and Suffering
56 After reviewing all of the medical evidence, there is no doubt in my mind that the plaintiff suffered a dramatic, and initially severe, discal injury at L5-S1 with nerve root compression on the L5 nerve root, resulting in right-sided sciatic pain.
57 I equally have no doubt that the injury has caused a permanent impairment of the function of the plaintiff’s lower back which has consequences for her in terms of both pain and suffering and loss of earning capacity.
58 There is no doubt that the medical evidence demonstrates that the plaintiff’s lower back injury is active and productive of pain and limitation of movement.
59 The amalgam of the evidence of the plaintiff and Dr Dumitrescu has convinced me that the plaintiff unrealistically pursued full-time work in February 2008. Dr Dumitrescu’s evidence is persuasive of that issue. In effect, she predicted that the plaintiff would come to grief issue return to full- time work.
60 Although the plaintiff said, when cross-examined, that she resigned from her employment with the first defendant, I accept her evidence that she did so because of increasing pain and an increasing inability to cope with full-time hours.
61 A simple exercise of the vacuuming was sufficient to bring the plaintiff undone in February 2008. The clinical notes of 6 March 2008 demonstrate that the plaintiff was vacuuming at her home two days after resigning, which produced an exacerbation of pain, with left leg pain described as sciatic pain.[35]
[35] PCB 97
62 Although the plaintiff subsequently worked in the hotel with her husband and daughter, what she was capable of doing was very light work, and little more than administrative work. At the time of trial she was not doing any hands-on manual work.[36] Her daughter undertakes a lot of work at the hotel,[37] and assists the plaintiff in undertaking domestic chores around the plaintiff's home.[38]
[36] Transcript 36-37
[37] Transcript 36-37
[38] Transcript 43
63 In my opinion, the picture painted by the evidence is not one of the plaintiff coping at all well with the consequences of the impairment of function of her lower back, but rather struggling along in a stoical way, entirely consistent with the impression I have of the plaintiff as being a very hardworking uncomplaining person who put up with her lot until she was no longer able to.
64 The plaintiff has sworn three affidavits which set out the pain and suffering consequences on which she relies to demonstrate that she has suffered a serious injury. I accept the plaintiff’s evidence, both in her affidavits and her oral evidence.
65 It seems to me that the pain and suffering consequences suffered by plaintiff bear all of the characteristics of being “at least very considerable”.
66 The plaintiff has a demonstrably significant injury which has required a lot of medical treatment, and fairly constant supervision by her general practitioners. It has caused her a persistent impairment of the function of her lower back. Although she may have had some occasions without pain, those occasions are insignificant when compared with what she has endured over the past five years. She is reliant upon intermittent use of medication. She is quite plainly unable to resume her previous job, and has struggled to maintain her hold on her alternative job with the first defendant. She is quite obviously unable to engage in a variety of social, domestic and general activities because of her injury.
67 Therefore, I find that the plaintiff suffered an injury to her lower back which resulted in an impairment of function of her lower back which is permanent and which has consequences for her in terms of pain and suffering which are deserving of the description “at the least very considerable”. I have reached that conclusion after making the comparison with other cases in the range of possible impairments or losses of a body function, as the case may be, which may fairly be described as being more than significant or marked and as being least very considerable.
Loss of Earning Capacity
68 Essentially, Mr Moulds submitted that the fact that the plaintiff was able to return to work in an alternative job, and the fact that she was able to perform work full-time by February 2008, means that the plaintiff cannot succeed in proving loss of earning capacity which satisfies the statutory test.
69 I have dealt sufficiently with the issue of the plaintiff's capacity to work full-time which does not require repetition in this part of my reasons, save to say the following to put my conclusions into context.
70 I do not accept the submission that the plaintiff is capable of working full-time in the laboratory of the first defendant, nor do I accept that the plaintiff has undertaken work at the hotel other than the simplest administrative work.
71 I find that the plaintiff is probably fit for work in the laboratory doing up to 20 hours per week which is consistent with her pattern of work up until January/February 2008.
72 Ms Denise Chasemore, human resource coordinator of the first defendant, swore an affidavit on 21 May 2010. She said that the current pay rate for the level at which the plaintiff was employed is $22.56 gross per hour. In a 20-hour week the annualised gross income is $23,462.40.
73 Ms Chasemore also referred to two other workers who are accepted as being comparable employees to the plaintiff. One is McQualter and the other is Lucas. In the three years “with injury” it is agreed that they would be earning $73,134 and $80,364 gross per annum, respectively.
74 Firstly, I find that the plaintiff is only capable of working up to 20 hours per week. Secondly, I accept that McQualter and Lucas are comparable employees. Thirdly, a simple arithmetic calculation of the plaintiff’s annualised income of $23,462.40 as a percentage of the gross income of McQualter and Lucas is 32 per cent relevant to McQualter's gross income and 29 percent relevant to Lucas's gross income.[39]
[39] I have rounded the figures to the nearest whole number.
75 Therefore, I find that the plaintiff has suffered a loss of 40 per cent or more and loss of earning capacity consequences which are permanent and are at the least very considerable when making the same comparison as described in paragraph 67 above.
Conclusion
76 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Act to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the defendant on or about 2 March 2005.
77 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
- - -
0