Whitelaw v KNS Con Pty Ltd
[2021] VCC 314
•26 March 2021
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-03826
| NICOLE JULIE WHITELAW (TAYLOR) | Plaintiff |
| v | |
| KNS CON PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 16 and 17 March 2021 | |
DATE OF JUDGMENT: | 26 March 2021 | |
CASE MAY BE CITED AS: | Whitelaw v KNS Con Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 314 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right knee – pain and suffering damages – loss of earning capacity – whether injury caused at work – whether the plaintiff has satisfied the statutory test for 40 per cent loss of earning capacity – plaintiff under twenty-six years of age at the time of injury
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; State of New South Wales v Moss (2000) 54 NSWLR 536
Judgment: Leave granted to the plaintiff to bring proceedings to recover damages for both pain and suffering and loss of earning capacity from the defendant arising from the right knee injury she suffered at her place of employment on 1 May 2014.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr M Fogarty | Arnold Dallas McPherson |
| For the Defendant | Mr A Moulds QC with Ms C Kusiak | Hall & Wilcox |
HIS HONOUR:
Introduction
1This proceeding is an application brought by Originating Motion dated 25 August 2020, by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of an incident that occurred in the course of her employment with the defendant, KNS Con Pty Ltd, trading as Deli World. The plaintiff alleges that during the course of her employment, she injured her right knee. The plaintiff relies on the injury caused to her right knee on 1 May 2014.
2The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning capacity damages. At the time of the injury to the plaintiff, she was nineteen years old.
3The following evidence was adduced or tendered during the hearing:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff tendered the following documents:
§Exhibit “A” ꟷ the plaintiff’s Court Book (“PCB”), pages 5 to 126
§Exhibit “B” – the defendant’s Court Book (“DCB”), pages 5 to 13
· The defendant tendered the following documents:
§Exhibit 1 ꟷ DCB, pages 14 to 51 inclusive.
4At the commencement of the application, Mr Moulds QC, on behalf of the defendant, stated at that the issues for consideration in this application were:
(a) whether the claimed injury to the plaintiff’s right knee occurred at work with the defendant;
(b) the plaintiff must establish that as a consequence of the injury to her right knee, that her loss of earning capacity at the present is greater than 40 per cent;
(c) the plaintiff has to prove that as a consequence of the injury to her right knee, her future earning capacity is permanently greater than 40 per cent of her “without injury” earning capacity; and
(d) in this case, there was no evidence from the plaintiff as to what her earnings would have been, but for the injury to her right knee.[1]
[1]Transcript (“T”) 9
The statutory scheme
5The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”.
6The 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 which she suffered arising out of or during the course of her employment on or after 20 October 1999;[2]
(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”;[3]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Subsection (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 being “more than ‘significant’ or ‘marked’”, and as being “at least very considerable”;
(e) 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;
(f) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners,[4] 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 ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[2] Section134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[3] Barwon Spinners (ibid) at paragraph [33]
[4]Ibid
7I am required by s134AE 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
8The plaintiff was born in June 1994. At the time of her injury at Deli World, the plaintiff was nineteen years old. She is now twenty-six.
9The plaintiff is a single woman who lives with her parents in Bonnie Doon.
10The plaintiff was educated to Year 12 at Lilydale Secondary College.[5] The plaintiff’s education to Year 12 was interrupted by a short eight-month attempt by her at a hairdressing apprenticeship. The plaintiff gave evidence that she did not like that work and returned to school to complete Year 12.
[5]T13
11The plaintiff had then completed an arboriculture course and obtained a Certificate II in that field.[6] The plaintiff then commenced an early childhood development course with an organisation known as Sage. That business went bankrupt and consequently the plaintiff could not complete her early childhood development course.[7]
[6]T13
[7]T15
12In 2016, the plaintiff commenced employment at Aurrum Aged Care as a laundry assistant. The plaintiff continued in that employment until September 2017, when she could no longer continue with her work as a laundry assistant due to her knee injury.[8] In the period between September 2017 and the current time, the plaintiff has had numerous medical procedures and investigations into the condition of her right knee. Nevertheless, the plaintiff commenced a nutrition course at VAST Fitness Academy in December 2020. The course is a twelve-month course which she is paying for herself.[9]
[8]T16
[9]T17
Injury with the Defendant
13At the commencement of the proceeding, the issue of causation was in dispute between the parties. The plaintiff described the occurrence of her injury with the defendant as a café worker at Deli World in Chirnside Park Shopping Centre in the following terms:
“On 1 May 2014 I suffered injury to my right knee in the course of my employment with the Defendant. I slipped on wet tiles and fell whilst walking from the storeroom fridge to the cash register.
I had immediate, severe pain in my right knee. Co-workers came to my assistance. I put ice on my knee. My parents came and picked me up. They assisted me to the car as I was struggling to walk.
The following day I went to see a GP at Lakeside Medical Clinic in Lilydale. My right knee was swollen and bruised. I had an x-ray. I was on crutches for a number of weeks.”[10]
[10]PCB 15-16
14The plaintiff, when she attended her general practitioner, gave a history that did not involve a falling incident at her place of employment. Subsequent evidence in this case provided a valid explanation as to why the plaintiff gave the general practitioner an incorrect history the day immediately after her work accident.
15The plaintiff also relied upon the evidence of Alisha Dinola, who stated as follows in her affidavit dated 28 January 2021:
“I worked with Nicole Whitelaw at DeliWorld in approximately 2013 - 2014. I worked with her on Thursday nights.
I was at work at DeliWorld on 1 May 2014 when she had an accident at work. We were closing up the cafe. The floors in the kitchen area had been mopped. I saw Nicole on the floor at the back of the kitchen area. She looked in pain. She couldn’t get up. She had one leg stretched out. She was crouched over. She was holding on to her leg in pain.
With three other workers, I helped her get up. She had difficulty walking.”[11]
[11]PCB 38
16This evidence is corroborative evidence of the plaintiff’s version of how she was injured at her place of employment.
17The plaintiff’s mother, Julie Whitelaw, also swore an affidavit in this matter, dated 24 February 2021. In that affidavit, Mrs Whitelaw deposed to being called by her daughter, the plaintiff in this case, to attend and pick her up after an accident at Deli World. She stated as follows:
“I recall a Thursday evening in May 2014. I wasn’t working that night. I was at home with my husband, Dean. We were living at Seville East about 20 minutes’ drive from Deliworld. I received a phone call around 8:30 pm ꟷ 9:00 pm from a female employee at Deliworld. She told me that Nicole had fallen over at work and that | would need to come and get her. I told her that we would drive there straight away.”[12]
[12]PCB 40-41
18Mrs Whitelaw also gave an explanation as to why the history to the general practitioner the next day was not accurate. Mrs Whitelaw stated as follows:
“The next morning, I had a conversation with Nicole in her bedroom. Nicole said she would go to the doctor. She queried with me what she should tell the doctor. We were both worried because we thought we might both lose our jobs. I was panicking because I was not on the books and Deliworld had a high turnover of staff. I thought if they had thought Nicole would do something like make a Workcover claim, she would get the sack. I told Nicole to tell the doctor that it happened at home. I regret telling Nicole that because she now has an ongoing injury. I didn’t think her injury would be as bad as it became.”[13]
[13]PCB 41
19I accept that the accident as described by the plaintiff occurred at her place of employment with the defendant in the manner that she has described. The aftermath of the accident was witnessed by Alisha Dinola, and her mother confirms that she attended to pick her up after she was injured at work.
20For completeness, I note that the defendant did not concede that the injury has occurred at work, but at the time of the final submissions the issue was not argued by the defendant.
Medical treatment
21The plaintiff attended her general practitioner at the Lakeside Medical Clinic on 2 May 2014. The plaintiff was seen by a Dr O’Connell, who no longer works at that clinic.[14]
[14]PCB 43
22On 12 May 2014, the plaintiff had an x-ray of her right knee and patella. The finding of that x-ray examination was:
“… A recent patellar dislocation and relocation is suspected as there is an osteochondral lesion adjacent to the medial inferior pole of the patella, Further workup is advised.”[15]
[15]PCB 48
23The plaintiff was then referred to the Maroondah Hospital Orthopaedic Clinic for examination of her right knee. The plaintiff attended on 20 May 2014, 6 October 2014 and 25 May 2015.[16]
[16]PCB 86
24On 28 July 2015, the plaintiff had an arthroscopic operation on her right knee.[17]
[17]PCB 50
25The plaintiff re-attended the Maroondah Hospital in February 2017.[18] The plaintiff then had an MRI examination of her right knee on 27 September 2017. No findings were made on the plaintiff’s right knee at that time. The plaintiff then had a further MRI examination of her right knee on 23 May 2018. The conclusion from that examination was as follows:
“1. No meniscal tear or cruciate ligament injury.
2.Small area of partial thickness chondral thinning of the mid median patellar ridge and minor chondral surface fissuring/fraying.”[19]
[18]PCB 86
[19]PCB 57
26The plaintiff then attended at the Accident and Emergency Department of the Maroondah Hospital on 5 August 2018. The diagnosis at that time was a recurrent right patellar subluxation query dislocation. The plaintiff gave a history of walking down the stairs at a hotel when her knee gave way. She felt that the knee dislocated and relocated itself, and she was in pain and had swelling in her right knee.[20]
[20]PCB 65
27On 3 January 2019, the plaintiff underwent a further MRI scan of her right knee. On this occasion, the results of the MRI scan were:
“… Acute rupture of the anterior cruciate ligament. 2. Associated pivot shift pattern impaction of the lateral femoral condyle and lateral tibial plateau. 3. No meniscal or collateral ligament tear.”[21]
[21]PCB 60
28I note in the Eastern Health report dated 7 September 2020, that the plaintiff gave a history of her attendance at the Emergency Department of Maroondah Hospital on 4 January 2019 as being a ruptured anterior cruciate ligament of the right knee after falling in a paddock some days previous. She was discharged home with crutches and referred to the Orthopaedic Clinic.[22]
[22]PCB 87
29On 3 June 2019, the plaintiff underwent a reconstruction of her right knee anterior cruciate ligament. This was performed by Mr Nathan White.[23] The plaintiff had two further MRI examinations on 26 May 2020 and 3 March 2021. The findings of the most recent MRI examination are as follows:
“1. Status post ACL reconstruction. No evidence of a retear.
2. Development of focal oedema at the base of the medial tibial spine, this is favoured to be due to focal chondral fissuring in this region. The differential would be mechanical stress from the adjacent ACL graft.
3. Unchanged areas of grade 3 focal chondral loss both in the lateral compartment and patellofemoral joint.”[24]
[23]PCB 87
[24]PCB 83
30The MRI scan of 26 May 2020 confirmed the progression of the plaintiff’s chondromalacia compared to the MRI scans of her right knee taken in 2014.[25]
[25]PCB 87
31The plaintiff is due to be reviewed by Mr White in April 2021.
32The plaintiff has had two separate medical procedures to her right knee. She continues to have pain in that right knee and the medical treatment is ongoing. The medical treatment includes ongoing physiotherapy treatment, together with medical supervision by Mr White and the plaintiff’s general practitioner, Dr Berghofen.
Medical opinions
The Plaintiff’s doctors
Dr Monika Berghofen
33Dr Berghofen prepared a report dated 10 March 2021. This was Dr Berghofen’s latest report. She had previously prepared a report dated 9 June 2020 for the Accident Compensation Conciliation Service. In the most recent report, Dr Berghofen gave the following opinion:
“The patient is currently not able to do any type of employment until intensive physiotherapy of the right knee is improving the pain level and functioning level of the right knee.
I would wish for the patient to have a second opinion of a private orthopaedic surgeon for assessment and further management in regards of best medical treatment that the patient at last can start working … .”[26]
[26]PCB 81
34Dr Berghofen does not give an opinion about how long or what level of permanency the right knee injury would have for the plaintiff’s capacity to return to employment.
Dr Joseph Slesenger
35Dr Slesenger, a specialist occupational physician, prepared two reports in respect of the plaintiff. The first report was dated 8 July 2020 and the second report was dated 23 February 2021. In his first report, Dr Slesenger diagnosed the plaintiff’s right knee condition in the following terms:
“…
o Soft tissue injury.
o Patellar dislocation and patellofemoral joint sprain, for which she was initially treated conservatively and subsequently underwent a right knee arthroscopic repair (the nature of the initial surgery is uncertain).
o Recurrent right knee dislocation, resulting in falls and subsequent ACL rupture, for which she has undergone an ACL repair (please note I have not seen copies of the operation note).
o Chronic right knee pain with evidence of ACL dysfunction and a medial meniscal injury (please note I have not seen copies of the most recent MRI scan performed in May/June 2020).”[27]
[27]PCB 96
36In Dr Slesenger’s opinion, he stated that the plaintiff was only suitable for sedentary duties only.
37In a more recent report dated 23 February 2021, Dr Slesenger confirmed his previous diagnosis and opinion that the plaintiff was only suitable for sedentary duties. He noted that the plaintiff continued to take Tramadol, 50 milligrams, two or three times a week. At the time of this examination in February 2021, the plaintiff had ceased taking Ibuprofen.
38Dr Slesenger stated that the plaintiff’s present capacity for employment is best described as follows:
“At this stage, I am of the opinion that Ms Taylor [the plaintiff] retains capacity for work with restrictions, namely:
· Sedentary duties only.
· Avoid climbing, squatting and bending.
· Avoid walking on uneven ground.
· Limited walking.
·Working 4 hours a day, 4 days per week.”[28]
[28]PCB 108
39Dr Slesenger went on to state that, in his opinion, his prognosis for the plaintiff was guarded, given the length of time of the impairment and disability, and her poor response to treatment to date. He also noted the risk of degenerative disease in the plaintiff’s right knee. In his opinion, given the plaintiff still complained of right knee pain, he was not satisfied that the plaintiff’s condition had stabilised, and that there was a risk of further deterioration.[29]
[29]PCB 109
Mr Russell Miller, orthopaedic surgeon
40The plaintiff was seen by Mr Miller for medico-legal reporting purposes. Mr Miller prepared a report dated 20 July 2020. Mr Miller set out his diagnosis for the plaintiff’s right knee condition as follows:
“There has been complex pathology in the knee, involving initially the patello femoral joint and subsequently the anterior cruciate ligament, for which two operations have been performed.
First Operation - July 2015
Surgery was performed by Mr Shane Blackmore, orthopaedic surgeon, at Eastern Health, as outlined in the operative record dated 28 July 2015. Findings included a large osteochondritis dissecans fragment in fat pad which was removed and a corresponding area of fibrocartilage on the lateral femoral condyle. No other pathology was identified. The anterior cruciate ligament was noted to be intact.
Second Operation - June 2019
There was a further surgery which the client believes was an anterior cruciate ligament repair, performed by Mr Nathan White on 3 June 2019. Completion of this report would require a copy of the operation report.
The ongoing symptoms in the right knee are attributed to the problems with the patella femoral joint and anterior cruciate ligament, and subsequent development of a chronic regional pain syndrome, and the prognosis for the knee is only fair.”[30]
[30]PCB 115
41Mr Miller was of the opinion that the clinical status of the plaintiff was explained by a defined organic disease.
42Mr Miller gave his opinion as to the plaintiff’s capacity to work in the following terms:
“From the point of view of the right knee, she will have difficulty with work that involves prolonged standing, walking, twisting, turning, kneeling, and squatting.
…
These restrictions are likely to be permanent and work related.”[31]
[31]PCB 116
Mr Austin Vo, orthopaedic surgeon
43The plaintiff was seen by Mr Vo for the purpose of medico-legal reporting. Mr Vo prepared a report dated 1 February 2021. Mr Vo’s opinion is that the plaintiff suffered initial right knee acute traumatic patellar dislocation while at work in 2014, subsequently requiring surgery, involving the removal of loose bodies.[32] Mr Vo went on to state:
“… She has unfortunately had a further injury to the same knee, when her knee gave way and she injured her ACL, for which she has also had surgery.
Her current issues relate to ongoing pain and weakness in her knee which is limiting not only her daily activities, but also her recreational and occupational pursuits.”[33]
[32]PCB 123
[33]PCB 123
44Mr Vo gave his opinion in respect of the plaintiff’s employment capacity as follows:
“The injuries do restrict her ability to perform pre-injury employment or other suitable employment, involving her to be standing on her feet for prolonged periods of time due to her ongoing pain and weakness in her right knee.”[34]
[34]PCB 124
45Mr Vo expressed the opinion that the plaintiff’s prognosis is guarded, as her right knee symptoms are yet to be stabilised by undergoing two surgical procedures to date.[35]
[35]PCB 125
Dr David Vivian, musculoskeletal physician
46Dr Vivian examined the plaintiff on behalf of the defendant and prepared a report dated 27 April 2020. The defendant did not rely upon this report in this application. The plaintiff tendered this report as part of her case.
47Dr Vivian’s diagnosis was that initially there was an internal disruption of the right knee, starting with the patellar dislocation and femoral chondral injury, leading to the current disability leading to the ACL rupture. He also was of the view the plaintiff suffered from a Complex Regional Pain Syndrome. Dr Vivian, while not an occupational physician, gave the opinion that the plaintiff was unfit for all work at the present time; that is, at the time of his examination of the plaintiff. He then went on to opine that the incapacity for employment was lifelong.
48In that opinion, Dr Vivian is on his own in respect of all the medical examiners in this case. He is the only medical examiner that states the plaintiff’s incapacity for work is total and lifelong.
The Defendant’s doctors
Dr David Love, orthopaedic surgeon
49Dr Love examined the plaintiff on behalf of the defendant for medico-legal reporting purposes. He prepared two reports, dated 5 October 2020 and 8 December 2020. He also prepared a supplementary report dated 9 March 2021. In his initial report, Dr Love expressed some concern about the connection between the ACL reconstruction surgery with the initial injury.
50In his report dated 8 December 2020, Dr Love gave his diagnosis as follows:
“At this stage her likely diagnosis is one of early degenerative change in the lateral compartment of the knee and the patellofemoral joint as indicated by the description of cartilage damage from the arthroscopy of 2015. It is my opinion that this is the cause of her sensations of instability.”[36]
[36]DCB 18
51Later on in his report, Dr Love noted as follows:
“The pain that she is reporting now is consistent with the pathology as defined from the original arthroscopy and subsequent surgery. Unfortunately she now has a degenerative condition that is likely to deteriorate with time.”[37]
[37]DCB 19
52Dr Love noted that, for the longer term, the plaintiff’s resolution of her pain is going to be poor. He did not expect the plaintiff to have a pain-free future.[38]
[38]DCB 20
53Dr Love assessed the plaintiff as capable of undertaking suitable employment. He noted that she was capable of doing a job that was mainly sedentary, with minimal working, and with no heavy laborious component. He said the plaintiff was capable of working full time in an appropriately suitable and sedentary job.[39]
[39]DCB 20
54Dr Love was subsequently supplied with the IPAR Vocational Assessment Report dated 24 February 2021. In his addendum or supplementary report dated 9 March 2021, Dr Love expressed his opinion as follows:
“In my opinion, she is capable of performing some of the proposed employment options. These include the role of an administration officer, receptionist, call centre operator and/or data entry/word processing operator. All of these roles are mostly sedentary. While they may require small amounts of walking, those walking parameters will be relatively short and potentially could be restricted in her case, there is no significant heavy lifting or carrying of heavy loads.
Although she does describe some discomfort with prolonged sitting in the IPAR report she potentially would be able to have regular breaks that would allow her to move her legs to improve comfort. Please note that this is based on her physical injuries alone.
Finally, I suspect that she would be able to do this, at least initially, on a part-time basis, most likely starting … [at half] hours per week with a plan to work up to full hours over a prolonged period of time.”[40]
[40]DCB 23
Vocational Assessment Report
55The defendant relied upon an IPAR report dated 24 February 2021. The IPAR report was prepared by Ms Chloe Mutimer, an occupational rehabilitation consultant. Ms Mutimer identified the following roles as suitable employment options for the plaintiff:
· Administration officer or general clerk
· Receptionist
· Call centre operator
· Data entry or word processing operator.
56Each of these employment opportunities are described as sedentary employment. There is an analysis in the report of the amount of sitting, walking and other movement required during the course of those particular employments. I note that the plaintiff has never worked in that type of employment in the past, and the fact that while she is young, she has in the past shown signs of seeking to improve her employability by doing courses. In the course of giving her evidence, the plaintiff was clearly doing the best she could to give honest answers.
Credit of the Plaintiff
57I accept that the plaintiff is an honest and truthful witness. The plaintiff has engaged in a number of courses since her injury in an attempt to improve her employment prospects. She clearly would be unable to continue with employment in the arborist area of work. The plaintiff was unable to complete her childcare course, as the education facility went bankrupt and she lost her money for the tuition fees. While there was no direct evidence of the plaintiff’s capacity to work in a childcare setting, it was clear from the IPAR report that was not a form of employment open to the plaintiff, given her current physical incapacities.
58I accept that the plaintiff is willing to engage in as much employment and proper activity as she can physically manage. Unfortunately for her, the pain levels that she suffers, even after two surgeries, limits her to various sedentary employment and the amount of time that she can do that sedentary employment.
59The plaintiff’s credit was not shaken during the course of the cross-examination and I accept her as a witness of truth.
Pain and suffering consequences
60The plaintiff relied upon three affidavits, sworn 23 April 2020, 21 December 2020 and 11 March 2021, to set out the consequences to her as a result of the injury to her right knee during the course of her employment with the defendant.
61The plaintiff has, from the day of that injury to the present time, continued to suffer unrelenting pain in her right knee. As a result of that pain, the plaintiff has had two separate surgical procedures in order to alleviate the symptoms to her right knee. Nevertheless, the pain continues to affect her every day. The plaintiff gave evidence of the pain from her right knee interrupting her sleep on a regular basis.[41]
[41]PCB 24
62The plaintiff takes medication to alleviate the pain symptoms and in particular, she takes Tramadol three times a week. She also takes Ibuprofen three to four times a week, and as a result of which is not a direct consequence of the injury to her right knee, she takes Cymbalta to deal with her depressed mood.[42] The plaintiff is noted to limp during the course of the medical examinations by the practitioners in this case. The plaintiff has had to give away any ambitions to play any sport as a result of the injury to her right knee.
[42]PCB 23
63Most importantly, the plaintiff has been unable to work since 2017. On the plaintiff’s inability to work, I note that she attempted to return to work, both immediately after the initial injury, to her employment with the defendant, and also subsequently has had a number of attempts to gain employment. Unfortunately for her, due to the pain to her right knee and her inability to be mobile, she has not been able to work since 2017 and subsequent operations have occurred since then.
64The plaintiff has ongoing medical treatment in the form of physiotherapy and, of course, she has a review with the knee surgeon, Mr White, in the near future.[43] All of the medical examiners agree that the plaintiff’s prognosis for her right knee is guarded and that as a young woman she can expect things to deteriorate significantly over time.
[43]PCB 23
65While the above is a brief summary of all of the consequences arising from the right knee injury suffered by the plaintiff in the course of her employment, they amount to a proper description of being “more than significant or marked” and being “at least very considerable” pain and suffering consequences for the plaintiff.
Loss of earning capacity
66In order to establish that the plaintiff be given leave in respect of loss of earning capacity, she must establish that:
(a) at the date of hearing, she has a loss of earning capacity of 40 per cent or more pursuant to s134AB(38)(e)(i); and also
(b) after the date of hearing, that relevant loss of earning capacity will continue permanently pursuant to s134AB(38)(e)(ii).
67The plaintiff was under the age of twenty-six years as at the date of her injury. The statutory prescriptions of measuring the loss of earning capacity set out in s134AB(38)(f) is not relevant in this proceeding. The calculation of loss of earning capacity in this case is to be done in accordance with the common law principles enunciated by Heydon JA (as he then was) in the case of State of New South Wales v Moss.[44] A summary of these principles is as follows:
(i) evidence of past economic loss is some, though not conclusive, of reduced earning capacity;
(ii) it is generally desirable to have precise evidence of what the plaintiff would have been likely to have earned before the injury and what she is likely to have earned after it;
(iii) in a case where the plaintiff has suffered a significantly disabling injury which affects the range and nature of the work she can perform, the court can, without specific evidence of what other persons with this kind of disability can earn, make a judgement and assessment on a percentage basis, or otherwise, of the value of loss of capacity;
(iv) the compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of a financial loss. It is an issue of calculating the damage to a capacity to carry out various careers. It is an exercise of possibilities, not proof of probabilities;
(v) the mere fact that the quantum of damages is difficult to assess does not mean the plaintiff is only entitled to a nominal sum; and
(vi) the task of the tryer of fact is to perform a discretionary judgement by reference to not wholly determinative criteria within fairly wide parameters or fairly broad parameters.[45]
[44](2000) 54 NSWLR 536
[45]New South Wales v Moss (supra) at paragraphs [69-[87]
68I have previously referred to the medical opinions in this case. The only occupational physician who has prepared a report in respect of the plaintiff’s ability to currently perform work and work into the future, is Dr Slesenger. In his opinion, the plaintiff’s capacity is four hours a day and four days a week. That is a total of sixteen hours per week out of an average working week of thirty-eight hours per week. While there was no dollar calculation precisely done to reflect exactly what the financial loss is for the plaintiff, it is clear on her incapacity to work, greater than sixteen hours per week, which I accept, and that she has incurred a greater than 40 per cent reduction in her ability to earn income.
69All of the medical opinions, except Dr Vivian, say that the plaintiff is only capable of performing sedentary employment. Dr Love, in his final report, states that the plaintiff would have capacity, at this time, to perform half hours in a sedentary role. He also notes that the plaintiff’s physical condition is likely to deteriorate. I do not accept that it is possible for the plaintiff to increase her hours beyond the current capacity of half hours or, alternatively, sixteen hours per week.
70I accept that the suitable employment options set out in the IPAR report are appropriate. The difficulty for the plaintiff is that she can only work part time and, in my assessment, sixteen hours per week or, at the most, half the hours of normal working hours, is the limit of her capacity, both now and permanently into the future.
71In conclusion, I accept that the plaintiff has satisfied the Court that her loss of earning capacity, both presently and into the future, on a permanent basis has been reduced by more than 40 per cent from her “without injury” earning capacity. The plaintiff, at the time of her injury, was a nineteen-year-old woman, who was capable of doing all types of employment, and willing to do all types of employment.
72I grant leave to the plaintiff to bring proceedings to recover damages for both pain and suffering and loss of earning capacity from the defendant arising from the right knee injury she suffered at her place of employment on 1 May 2014.
73I will hear the parties on costs.
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