Wicklander v Aus-Offal Pty Ltd
[2009] VCC 95
•12 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-00531
| DAVID GARY WICKLANDER | Plaintiff |
| v | |
| AUS-OFFAL PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27, 28 and 29 January 2009 |
| DATE OF JUDGMENT: | 12 February 2009 |
| CASE MAY BE CITED AS: | Wicklander v Aus-Offal Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0095 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act – injury to the right knee – pain and suffering – loss of earning capacity – causation – Grech v Orica Pty Ltd (2006) 14 VR 602.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Spittle with | Hounslow & Associates |
| Mr R Dyer | ||
| For the Defendant | Mr B McKenzie | Minter Ellison |
| HER HONOUR: |
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 in the course of his employment with the defendant on 24 January 2003 (‘the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by Section 134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right knee.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 in reaching my conclusions;
(xi) In conformity with Barwon Spinners, in the present case I must identify the injury and impairment arising after 20 October 1999. I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after the injury: See Petkovski v Galletti (1994) 1 VR 436;
(xii) Finally, I must determine whether the impairment meets the statutory requirements established by the Act, namely whether it is permanent and at least very considerable.
5 The plaintiff relied upon three affidavits and gave viva voce evidence. He was cross-examined. The plaintiff’s general practitioner, Dr Baker, and his treating orthopaedic surgeon, Mr Love, were required for cross examination, as were medico-legal examiners, orthopaedic surgeons, Mr Russell Miller and Mr Simm.
6 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is presently aged thirty six, having been born on 3 June 1972. He left school in the second term of Year 12 aged seventeen.
8 The plaintiff’s employment history includes four years in the Army Reserve between 1992 and 1996, work as a labourer in Queensland, twelve months as a re-fueller for National Bus Company in Doncaster, work as a trades assistant in mining maintenance for about a year, house re-blocking and site security work.
9 Before commencing work with the defendant in November 2002, the plaintiff was very fit and in good condition. He injured his right knee in a motorbike accident in 2000 and recovered after a few weeks.
10 When cross-examined about a reference by his general practitioner to knee pain on 27 December 2002, the plaintiff said he could not recall having injured or experienced pain in his right knee at that time. He did not have any time off work and he was working “full steam”.
11 The plaintiff’s work with the defendant involved delivering carcasses of meat from the defendant’s Patterson Lakes premises to various retail butcher shops.
12 On the said date, the plaintiff commenced work as normal at 2.00 am. At 5.00 am, when he was delivering meat to a butcher’s shop in Frankston, he stepped into the back of the truck and swung a hind-quarter weighing approximately 80 to 90 kilograms on his shoulder. The truck floor was slippery and he took the weight of the carcass on his shoulder. His right leg slipped and made contact with the wall of the truck. He spun around and fell down three steps at the back of the truck (“the incident”).
13 The plaintiff “heard a bad crack and a heap of pain”. His right knee immediately swelled and became very painful. He suffered cuts to his back when he fell.
14 A fellow worker completed the unloading of the truck, but as he did not have the requisite heavy vehicle licence to drive the truck, the plaintiff drove the truck back to the depot using a piece of wood to operate the accelerator.
15 Later that day, the plaintiff attended Dr Blake in North Blackburn.
16 In late January 2003, Dr Blake referred the plaintiff to Mr Bruce Love, orthopaedic surgeon, who performed a right knee arthroscopy on 4 April 2003 (“the first surgery”).
17 From about 28 January 2003, the plaintiff undertook light duties involving driving and no lifting for approximately four weeks, but he was unable to continue because of knee pain.
18 The plaintiff deposed, that after the first surgery he noticed a considerable improvement but his knee would not straighten properly. When he saw Dr Hudson on 17 April 2003, he still had pain and he was taking anti- inflammatories and Panadeine Forte.
19 The plaintiff again returned to light duties on 20 May 2003. His work involved only driving and another worker assisted with lifting duties. He denied that he had told Dr Hudson that his knee was perfect following the first surgery before a further flare-up on 2 July 2003 (“the second date”). He continued to experience knee pain and was limited in walking to 200 metres. He found it was impossible to carry anything and there were flare-ups. He denied the first surgery had solved his problems because he still has damage to his knee. It had not solved his symptoms although he would have been feeling a lot better at that stage.
20 The plaintiff disagreed he told Mr Love that he was comfortable prior to the second date as he was still in pain and taking anti-inflammatories. At the time of the July incident, he was taking between four and eight Panadeine Forte a day.
21 Whilst on light duties, the plaintiff started work at 5.00 am or 6.00 am. By the end of the day he had “had enough”. The pain was just getting worse every day. The more he kept pushing to keep trying and do 8 hours the worse the pain got. The plaintiff did not attend Dr Hudson regularly whilst on light duties as he had to travel some 50 kilometres to see him and he needed to be driven by his father who was also working at the time.
22 When the plaintiff was examined by Dr Rowe on 19 May 2003, the day before he returned to light duties, he complained of wasting and weakness in the right knee. He denied he told Dr Rowe that at that time he was looking after himself, as he was having some help from his father and stepmother. He would cook a meal but his parents did the heavier housework. He was having problems driving a car. His knee was getting basically looser and he was losing more and more support in the actual knee joint itself.
23 The plaintiff thought Mr Love renewed his medical certificate when it expired on 16 June 2003.
24 The plaintiff denied a further slipping incident after the initial incident and before the second date. He deposed, that on 13 June 2004, his right knee gave way for no particular reason and he advised the defendant he could not return to work on that day.
25 The plaintiff’s knee has been painful since the incident but since the second incident on 2 July 2003, the pain has got worse. He could not recall instability in his knee before the second date. It was not until after that time that he started using a bandage or brace.
26 On the second date, the plaintiff suffered a flare-up of his right knee when he was filling his truck with petrol at the defendant’s premises. Whilst he was bending down putting petrol in the tank, a truck came from his right at a fast speed, very close to him. He stood up quickly facing his truck to avoid the oncoming vehicle (“the second incident”). He then felt pain in his knee as he tried to rise quickly to move out of the way. He explained that there was nowhere else for him to go. He denied he had jumped out of the way of the other truck or that it was a particularly traumatic incident, as was recorded by a number of medical examiners. He also denied that he hit his knee on the petrol tank or any other part of his truck. There was a little bit of pain when the second incident happened, but nothing major. He would have had to have done a high jump for his knee to hit the fuel tank which was at knee height. His feet did not leave the ground. He denied telling Dr Rowe he had twisted his knee in the second incident.
27 After the second date, the plaintiff had a further week off work. He then returned to work on light duties, which he continued for about six weeks, during which time he had difficulty driving and carrying loads of meat.
28 The plaintiff was referred back to Mr Love, who organised an MRI scan of his right knee. Mr Love performed a second arthroscopy on 28 January 2004 (“the second surgery”) and later carried out an anterior cruciate reconstruction on 24 March 2004 (“the third surgery”).
29 The plaintiff was under the care of Dr Hudson at Phillip Island during 2003 and re-commenced seeing Dr Blake in October 2004.
30 After the third surgery, the plaintiff’s knee worsened. It generally felt loose and unstable, with pain causing him to wake at night.
31 The plaintiff underwent a further arthroscopy on his right knee on 25 July 2007 (“the fourth surgery”). He was advised by Mr Love, subsequent to the fourth surgery, that he needed a knee replacement, but that he was too young at that stage for the procedure.
32 As of late 2007, the plaintiff usually used a stick and wore a brace on his right knee. He has worn the brace for the last three to four years. There have been many occasions when his knee has given way or felt like giving way. He has particular difficulty going up and down stairs.
33 The plaintiff’s knee starts to ache if he has to sit in one position for a long time. He finds driving difficult, but drives locally, and otherwise is assisted by his parents. He has become very anxious, frustrated and depressed.
34 The plaintiff is dependent on his father and stepmother for assistance with domestic tasks and shopping. He was initially given gardening assistance by the insurer.
35 The plaintiff presently lives on his own in a house on his parents’ property in Willow Grove, about 17 kilometres from Moe. He pays rent. His stepmother vacuums and hangs out his washing. The plaintiff cooks his own food. The plaintiff denied he moved into Willow Grove two years ago because his father had had a stroke. His father’s stroke in fact occurred in 2005 and his father only had two weeks off work.
36 If the plaintiff was capable of doing his pre injury job he would able to earn at least $1,000 gross per week as a driver and meat lumper. He enjoyed work as a meat lumper as it was heavy physical work. When he commenced work with the defendant he had discussions with the defendant about a permanent full time clerical/ office job if his employment worked out.
37 In the nine week period he worked for the defendant, the plaintiff earned $5,638, together with overtime of $2,527, averaging over $1,000 gross per week. In the week immediately preceding the incident, he earned $1,058 gross.
38 Had he continued to work with the defendant, the plaintiff would now be earning $50,000 plus per year.
39 In February 2008, the plaintiff enrolled at Yallourn Technical College in a youth worker course specialising as an alcohol/drug counsellor. He attended on 4 February 2008 but, because of the medication he was taking and his inability to concentrate, he deferred on that date.
40 The plaintiff has re-enrolled in the course and is to commence study on 9 February 2009. He believes concentration will be difficult because of the medication he is taking, but he is willing to try. He thought he had a 20 to 30 per cent chance or a 50/50 chance of actually passing the course as it was a long time since he had studied.
41 The course involves attendance four days per week at the Yallourn campus which is 15 kilometres from his home.
42 The plaintiff hopes, upon graduating, to find a part time casual position in the Latrobe Valley. He understands youth workers are engaged on a part time casual basis which he thought he could cope with because of his knee problem.
43 The plaintiff does not believe that he would be able to work full time because he cannot stand up for more than half an hour before the pain gets unbearable. He would have problems running around after children as a youth worker for eight hours a day. In addition to providing information to young people, he would have to be able to get up and down stairs. If something went wrong, he would have problems. The job may involve sleeping overnight. It could involve twisting. He might be required to lift a child. The level of physical work depended on the circumstances of the job. Because of his depression he believed he could not do the work as he felt it very difficult to concentrate when he was taking medication.
44 The plaintiff had no difficulty with reading, writing and comprehension at school, although he has problems reading now. He is “pretty bad” at computers, only being able to play Play Station. He is just learning to type at home.
45 Another youth worker, Chris Reed, who works in a youth hostel in Morwell, works three days a week, for approximately 5 to 8 hours a day, and earns approximately $26,000 per annum. The plaintiff agreed that a full time salary in this job would be $50,000 per year.
46 If he had a choice between his old job and youth work, the plaintiff would go back to meat lumping “without a problem” as he loves physical work.
47 The plaintiff agreed he would be able to work as an enquiry clerk, but he would have problems as a telemarketer with reading and concentrating. He could not do the running around that would be involved as a welfare support worker. It did not matter whether he could get up and sit down whilst working because the pain gets worse as the day goes on.
48 In January 2008, the plaintiff commenced treatment with a pain management specialist, Dr Lim, who suggested he undertake an extensive rehabilitation course. In mid 2008, the plaintiff attended the North Eastern Rehabilitation Centre to help him cope with psychological issues.
49 The plaintiff considered the course had been of assistance to his mental wellbeing. As a result of his good progress, Dr Lim reduced the amount of medication the plaintiff was taking. The plaintiff does not like taking medication. He now takes Oxycontin twice a day - 15 milligrams, and Cymbalta, an antidepressant, once a day. The plaintiff in the past has taken Panadeine Forte, Effexor, Cymbalta, Lyrica, Maxillon, Oxycontin and anti- inflammatories.
50 As of late 2008, the plaintiff was attending counselling and receiving antidepressant therapy. The plaintiff sees a psychologist, John Jakupi, who assists him, and the plaintiff no longer feels suicidal. He also attends Gippsland Physiotherapy Group for regular massage.
51 The plaintiff had a problem with his right ankle but it has improved. He had difficulty remembering problems with his left knee in October 2007 and said it had always been his right knee that was of concern.
52 The plaintiff can no longer run, enjoy martial arts, recreational boxing or other recreational pursuits he formerly enjoyed. At the time of the incident, he was running and he hoped that if he got the office job offered he would have been able to return to his more aggressive time consuming sports. He had not done martial arts for a week and a half before starting work in November 2002.
53 In October 2008, VicRoads granted the plaintiff a restricted licence to drive with a left foot accelerator. Despite the VWA having agreed to pay for these modifications to his vehicle, they have yet to be carried out. When his 1990 automatic Ford panel van is modified, the plaintiff will be able to go to physiotherapy. It will make it easier for him to get around as he will also be able to go to TAFE and hydrotherapy. He presently drives without that modification with some difficulty. The plaintiff considers the modified car would make a “massive difference” to his life.
The Plaintiff’s Medical Evidence
54 The plaintiff first attended Dr Blake in April 2002. He attended Dr Blake on the day of the incident when he told him that he had slipped at work carrying meat that day. On the said date, Dr Blake also recorded that the plaintiff had hurt his right knee at work on 27 December 2002. Dr Blake noted that after the December incident the plaintiff’s right knee recovered on its own.
55 On 29 January 2003, Dr Blake referred the plaintiff to Mr Love, orthopaedic surgeon. Dr Blake did not see the plaintiff again until 29 October 2004. He was not consulted about the July 2003 injury. He has seen the plaintiff on a regular basis since that time. The plaintiff drives to his appointments.
56 In his most recent report dated 22 October 2008, Dr Blake concluded that the plaintiff’s whole knee situation had its fundamental causation in the incident and maybe in the later July 2003 injury of which he had no knowledge. In his view, the plaintiff’s inability to return to his pre-injury duties was predominantly the result of him sustaining the injury to his right knee in the incident. Dr Blake deferred to the views of Mr Love in determining the significance of events other than the incident. Dr Blake confirmed that he saw the incident as playing a role in the current symptomology
57 Dr Blake considered that with appropriate re-training the plaintiff would be qualified to pursue employment in his preferred field of youth work. He thought that there was no impediment from the knee point of view to the plaintiff completing youth worker studies and he could see no reason, once qualified, why the plaintiff could not work in that field. He hoped he could do so on a full time basis.
58 In his view, the plaintiff would most likely have a continuing painful knee which may need further surgical intervention, but with appropriate management he should be able to cope. He presently prescribes 15 milligrams of Oxycontin, which the plaintiff takes daily. He has also prescribed the antidepressant, Cymbalta, since July. The plaintiff had problems with his concentration when taking Lyrica when he first enrolled in the course in 2008. No adverse side effects have been shown by the plaintiff whilst taking Oxycontin.
59 Dr Blake hoped the plaintiff would be able to continue his studies and complete them, even if he was still taking Oxycontin. In Dr Blake’s view, the plaintiff would still be able to work as a social worker, youth worker or perhaps answer enquiries. He could work full time in a telemarketer’s job if he had the job and the inclination. Dr Blake agreed that working as an inquiry clerk, subject to some job training, if the plaintiff wanted to do it, was a job that he could perform right now. The plaintiff’s suitability for various jobs would depend upon the circumstances of each job such as the amount of sitting and standing involved.
60 The plaintiff was referred by Dr Blake to Mr Love, orthopaedic surgeon, in January 2003. The plaintiff told him of the incident. Mr Love made a provisional diagnosis of a medial meniscus tear and he performed a meniscectomy on 4 April 2003.
61 Mr Love noted the operation report of 4 April 2003 mentioned the plaintiff had a bucket handle tear. He considered that tear inherently makes the knee stable by virtue of the torn cartilage jamming the knee. In those circumstances, it was probable any examination of the knee would not have revealed any instability.
62 On 30 April 2003, Mr Love noted the plaintiff was feeling “OK”. He recorded that the plaintiff told him he was comfortable and that he felt the procedure had solved his symptoms. At that time he anticipated the plaintiff would return to work forthwith on a graduated basis.
63 Mr Love reviewed the plaintiff on 10 July 2003. He recorded that the plaintiff told him that he suffered further injury at work in July 2003 when he was standing in the yard where he worked. Another truck, which entered the yard at some speed, did not strike him but he jumped in fright and struck the tank on his truck with his right knee- a circumstance which in Mr Love’s view could result in injury to the anterior cruciate ligament. After this incident, the plaintiff’s knee became acutely swollen and remained painful.
64 On examination, the plaintiff complained of quite a lot of pain in the medial aspect of the knee.
65 Mr Love organised an MRI on 28 August 2003 which showed a complete disruption of the anterior cruciate ligament with a subtle tear of the posterior horn of the medial meniscus. At arthroscopy on 28 January 2004, the anterior cruciate was in visual continuity and the medial meniscus tear was resected. Examination at the time of this surgery revealed a positive pivot shift and positive Lachman’s sign.
66 Despite his finding on arthroscopy that the anterior cruciate ligament was in visual continuity, Mr Love suspected that an in-substance tear occurred in the incident and the ligament was non-functional or only partially functional from that time onwards. He noted, if he was correct, that in the second incident the plaintiff suffered a subluxation of the anterior cruciate deficient knee as a result of his sudden movement.
67 He disagreed that he would have detected a sign of anterior cruciate ligament insufficiency on arthroscopy if it in fact was present.
68 On 24 March 2004, Mr Love decided to proceed to anterior cruciate ligament reconstruction to remove the non-functional ligament and replace it with a cruciate ligament graft.
69 In August 2004, Mr Love noted the plaintiff complained of ongoing symptoms since the third procedure. He suggested the plaintiff had a capacity for modified employment. He noted the plaintiff continued to complain of knee pain on examination in July 2004, September and October 2004, January and February 2005, and November 2005.
70 On 25 July 2007, Mr Love performed a third arthroscopy (“the fourth procedure”). Following that procedure, Mr Love thought the plaintiff’s response was reasonable.
71 When he last saw the plaintiff in December 2007, the plaintiff was complaining of ongoing pain. Mr Love was not able to detect any sign leading to a precise diagnosis as to the cause of the plaintiff’s pain, and he referred the plaintiff to pain management.
72 In Mr Love’s view, any person who has a cruciate ligament injury or a meniscal injury will at some point in the future have a high probability of a total knee replacement.
73 Mr Love concluded that the injury sustained in the incident and the sequelae of the surgical treatment of the plaintiff’s two knee injuries materially contributed to his current condition, his requirement for surgery and his incapacity.
74 In his view, most probably the anterior cruciate ligament was weakened as a result of the first incident and the second incident was, as it were, the “straw that broke the camel’s back” – that was the injury that ultimately led to full disruption of the ligament.
75 Mr Love considered that the original injury as described to him was a very severe one. In his view, a bucket handle tear of the medial meniscus is a very significant injury and therefore his interpretation of events was that that probably led to some weakness of the anterior cruciate ligament and the second incident “sort of completed the injury”, leading ultimately to the diagnosis.
76 As at December 2007, Mr Love thought the plaintiff had a capacity for some relatively sedentary work. From a physical view he considered the plaintiff would be able to work full time as an enquiry clerk. He could do sedentary work that did not involve twisting, bending, lifting and turning. Mr Love agreed full time work was reasonable provided it was sedentary and did not breach any of those restrictions.
77 The plaintiff commenced treatment at Gippsland Physiotherapy Group in August 2007 under the care of Damian Rowe, physiotherapist. The plaintiff has been treated with local soft tissue and electrotherapeutic techniques and he also been encouraged to continue with hydrotherapy.
78 Mr Love referred the plaintiff to Dr Lim, consultant in rehabilitation and pain medicine, in January 2008. The plaintiff complained to Dr Lim of persistent knee pain localised over his patella on the medial part of his knee exacerbated on weight bearing. The plaintiff had a limited active range of movement between full extension and 90 degrees of flexion. He also had an extremely wasted quadriceps muscle, and he felt that his knee was not as stable, even though on examination the various ligaments were intact.
79 Dr Lim suggested the plaintiff would benefit from a pain rehabilitation program at North Eastern Rehabilitation Centre(“NERC”). When the plaintiff enrolled in that program in June 2008 his sitting tolerance was 30 minutes; standing, 20 minutes; walking, 200 metres, and driving, two and a half hours with four rest periods.
80 Correspondence from NERC dated 25 June 2008 noted the plaintiff was extremely motivated and that he had the physical capacity to return to some form of work or study. As part of his therapy, the occupational therapist encouraged the plaintiff to be proactive in self seeking work and exploring other types of employment he could be suited to given his physical limitations.
81 On discharge on 29 September 2008, the plaintiff’s standing tolerance had increased to 30 minutes and he could walk on the treadmill for 500 metres. His driving tolerance was unchanged. It was concluded the plaintiff was ready for a return to work/ study.
82 In mid 2008, when the plaintiff was about to complete the program, Dr Lim decided to substitute Oxycontin for Panadeine Forte. When Dr Lim reviewed the plaintiff on 3 July 2008, he reported the plaintiff was doing relatively well, self treating, self managing his pain and controlling it. At that stage he commenced weaning the plaintiff off Oxycontin.
83 Dr Lim prescribed Cymbalta, an antidepressant, which he considered would also help the plaintiff, who suffered from regional central sensitisation which had similar mechanisms to fibromyalgia affecting his right lower limb and centred around his knee.
84 In a letter to Dr Blake dated 31 July 2008, Dr Lim said the next step was for the plaintiff to increase his activity levels, and he noted the plaintiff was planning in the near future to attend a youth worker course so that he could seek employment in that area.
85 On examination on 28 August 2008, Dr Lim noted that the plaintiff was doing extremely well. He was walking only with the knee brace more for psychological than biomechanical reasons. When he last reviewed the plaintiff towards the end of September 2008, he planned to have him wean off his right knee brace which in Dr Lim’s view was serving no purpose at that time except to reduce his anxiety.
86 Dr James Rowe examined the plaintiff on 19 May 2003, the day before he returned to light duties.
87 The plaintiff complained to Dr Rowe that he still had pain in his knee, the right quadricep was weak and he had difficulty walking any distance. He was able to walk 200 metres at a time. The plaintiff was then taking between four and ten Panadeine Forte a day for pain. He was under the care of Dr Hudson but had not started physiotherapy.
88 On examination, Dr Rowe noted that the plaintiff’s knee was slightly swollen. The plaintiff was sensitive and tender about the knee. Patellofemoral movements were uncomfortable and the plaintiff was tender about the lateral joint line of the knee. He had limited range of movement and could not extend his knee. There was 2-centimetre wasting in the right quadricep and the plaintiff could not squat or kneel.
89 Dr Rowe thought the plaintiff was not fit for normal duties because of the requirements to lift, but that he was fit for alternative duties.
90 Dr Rowe re-examined the plaintiff on 29 June 2004. He recorded the plaintiff told him that in July 2003 he jumped out of the way of another truck and he twisted his right knee and felt something give.
91 At the time of this re-examination, the plaintiff’s knee was slightly swollen and he could not bend it properly. He could not walk up and down stairs, nor walk any distance or run. There was a 4-centimetre difference between the quadriceps. Patellofemoral movements were uncomfortable.
92 Dr Rowe concluded the plaintiff had a further injury to his knee in July 2003 which was a separate matter.
93 Mr Simm, orthopaedic surgeon, examined the plaintiff on 5 September 2005. The plaintiff gave him a version of the two incidents similar to his oral evidence.
94 Mr Simm diagnosed a torn right medial meniscus treated by arthroscopic resection on 4 April 2003 and a torn right anterior cruciate ligament treated by reconstruction on 24 March 2004. He noted that in the absence of additional pathology, one would have expected a good return of function following surgery.
95 Mr Simm considered the plaintiff presented with ongoing pain which restricted his activities. He noted the plaintiff continued to use analgesic medication and a knee brace. Physical examination showed quite marked restriction of knee flexion. Mr Simm thought it was evident that the plaintiff had had an adverse pain response to his injuries. He noted that none of the injuries to the right knee had run the typical course of a ruptured anterior cruciate ligament. He concluded the most likely injury that caused the rupture was the incident.
96 In Mr Simm’s view, an in-substance tear may have been present at the time of the arthroscopy. He conceded that in his practice he has missed the presence of such a tear. He explained that the cruciate ligament is in a sleeve of synovial tissue. It may rupture but not sufficiently to tear the sleeve and the sleeve remains intact. Therefore, on casual examination of the ligament you might believe the ligament to be intact but in fact the rope or the ligament inside the sleeve has disrupted. This is called an injury in continuity because the ligament appears to be intact but in fact it is not.
97 Mr Simm confirmed the circumstances of the incident were consistent with an anterior cruciate injury where there was a twisting of the knee under load. He confirmed that in isolation the second incident would be unlikely to cause symptoms or to injure the knee and that the subsequent course of events suggested the knee was compromised by the incident, and as a result of the second incident there was further injury to the compromised knee.
98 Mr Simm explained that if the plaintiff struck his knee on the truck or tank he would rupture the posterior cruciate, not the anterior cruciate ligament. If the plaintiff jumped suddenly and twisted it would be an unusual course to rupture the anterior cruciate ligament unless he jumped high enough and landed awkwardly enough that on landing and twisting he could rupture his anterior cruciate – a common mechanism in basketball or netball where people jump high. If the plaintiff simply jumped away it would be an unusual mechanism to rupture the anterior cruciate ligament.
99 Mr Simm thought Mr Dunin’s views were plausible, but they differed from his own. Mr Simm did not accept, as had Mr Dunin, that there was a straight forward arthroscopically resected meniscus as the plaintiff had pain symptoms and analgesic requirements when he saw Dr James Rowe on 19 May 2003.
100 In his view, the two incidents seem to have been quite different and the first was a far more significant injury than suddenly standing up whilst squatting or jumping out of the way of a truck or striking one’s knee on the front of the truck. He did not expect to see 2-centimetres of quadricep wasting from a torn medial meniscus treated arthroscopically.
101 Mr Simm did not think there was any doubt the plaintiff had a physical problem but he agreed there was some symptom amplification when he examined him.
102 The plaintiff was examined by Mr Russell Miller, orthopaedic surgeon, on 3 December 2008. The plaintiff gave a history of the two incidents consistent with his viva voce evidence.
103 On examination, Mr Miller noted there was marked “quadriceps wasting and an effusion in the knee”. There was also irritability with knee movement. Mr Miller thought there was residual laxity in the knee and that the long-term prognosis was fair to poor and that there was significant risk of developing arthritic disease.
104 Mr Miller concluded the major knee injury was in the incident where the plaintiff suffered a meniscal tear and very likely suffered a sub-clinical injury to the anterior cruciate ligament just as it was functioning reasonably well and appeared in good condition arthroscopically.
105 Mr Miller believed, however, it was likely that the ligament was weakened by the incident and that the plaintiff further injured it in the second incident. He believed therefore the plaintiff’s current clinical status reflected the effects of the two injuries, but predominantly the incident.
106 Mr Miller considered the plaintiff was clearly not fit for his pre-injury work, nor work that involved prolonged standing, walking, twisting, turning or knee agility. In his view, the plaintiff was only basically suitable for work in a seated position and a return to work would be problematic due to his work-related injury. He was supportive of a graduated supervised return to work program with the plaintiff eventually resuming full time duties.
107 Mr Miller concluded that the incident weakened the plaintiff’s knee and subsequently made it susceptible for further injury. He confirmed his view that the plaintiff’s symptoms related predominantly to physical injury to the right knee. Whilst there were some features of a chronic pain syndrome which were magnifying the plaintiff’s symptoms, excluding that as best he was able, he believed the plaintiff’s symptoms and incapacity related predominantly to the physical injury to the right knee.
108 In Mr Miller’s view, striking of the knee was not a common way to injure or rupture the anterior cruciate ligament and it was unlikely in such circumstances that the ligament would rupture. A rupture was more likely and nearly always occurred when there was twisting or turning of the knee under load. When he took the plaintiff’s history he was mindful of that distinction.
109 Mr Miller disagreed that any problem with the anterior cruciate ligament would have necessarily been found on arthroscope. In his view there could have been a sub clinical injury to the anterior cruciate ligament. Though the ligament is damaged it still functions quite well. It can arthroscopically look close to normal or even be presumed to be normal when the knee is examined and the knee feels stable, and then over a period of time the ligament has in fact been damaged, the substance of the ligament and the ligament breaks down and degenerates and ultimately either stretches or re- tears.
110 Mr Miller thought that is what happened in this case and that the ligament re- tore in the second incident. He put a relative weighting on the energy of the incidents, noting that the incident was a twisting of the knee in a loaded position with an additional load and that the plaintiff heard a crack and that was highly significant in terms of a ligament injury. It was his understanding the second incident did not involve twisting under load.
111 In Mr Miller’s view the plaintiff had not recovered from the incident. It was his understanding the plaintiff had not returned to full normal duties or sport or “other sorts of things.” He would have thought if he was treating the plaintiff and he had made a full recovery, assuming the plaintiff wanted to return to normal duties, then he would have expected him to do so. He thought that would be an objective marker of a level of knee function. He did not think the plaintiff had reached that level of knee function
112 The plaintiff was examined by Mr Jonathan Hooper on 15 January 2008. The plaintiff told him of the circumstances of the incident and he also described the second incident when he was squatting and then when “he pulled up” he had sudden severe pain in his knee.
113 Mr Hooper believed that a combination of the injuries in January and July 2003 had been the cause of the plaintiff’s problems and it may well be that the plaintiff partially tore his cruciate ligament in the incident and then completed the tear in the second incident but there was no way of knowing in retrospect.
114 Mr Hooper believed the plaintiff needed to see a pain management specialist. He offered a very pessimistic prognosis about the plaintiff getting back to manual work in the foreseeable future and he could not see him ever returning to his pre injury duties of truck driving/meat lumper.
115 The plaintiff was examined for medico-legal purposes by Dr Dharwadkar, psychiatrist, on 2 August 2005. Dr Dharwadkar diagnosed a mild adjustment disorder with anxiety and depressive symptoms and unresolved anger issues.
Non Medical Evidence
116 By letter dated 16 April 2003, NRMA Workers Compensation accepted the plaintiff’s claim for weekly payments relating to the incident. Liability was later accepted for his knee reconstruction surgery as part of this initial claim.
117 By letter dated 5 October 2005, the plaintiff’s claim, pursuant to s.98C, in relation to his right knee, right ankle and psychological injury suffered in the incident was accepted.
The Defendant’s Medical Evidence
118 The plaintiff was examined by Mr Dunin, orthopaedic surgeon, on 2 September 2005 for the purposes of an impairment assessment.
119 Having been provided with further documents, Mr Dunin reported on 22 January 2009 that the plaintiff had suffered a soft tissue injury to the right knee in the incident. He noted, on the basis of Mr Love’s report, it appeared as though the plaintiff sustained a tear of the medial meniscus from which he had made a good recovery following arthroscopic surgery.
120 Mr Dunin noted that in July 2003, the plaintiff had a twisting injury as he tried to avoid the truck coming towards him. In his view, it appeared as though the plaintiff sustained a tear of the anterior cruciate ligament in the second incident.
121 When asked whether the incident appeared to weaken the plaintiff’s knee, such that the July injury would not have occurred but for the incident, having noted the plaintiff appeared to have made a satisfactory recovery following the arthroscopic surgery, Mr Dunin considered, on the balance of probabilities, that the injury in July 2003 was a new injury. He thought there may have been some very minor residual loss of muscle tone that may have been a minor contribution to the July injury but, on the balance of probabilities, he considered that the tear of the anterior cruciate ligament injury would have occurred if the plaintiff had not had the previous injury in the incident.
122 It was therefore his opinion that any contribution by the incident to the new injury in July 2003 was minimal, at best. Further, he did not consider that the July 2003 injury was rendered more serious because of the previous injury in the incident.
123 Mr Dunin considered there was minimal connection between the injuries in the incident and those suffered in the second incident. He thought the previous knee surgery may have caused some loss of muscle tone in the right lower limb which may have slightly increased the risk of further injury. He considered that the prognosis for the incident injury was very good. Following any procedure involving a medial meniscectomy, he considered the risk of post-traumatic osteoarthritis in years to come increased.
124 Mr Hooper, who examined the plaintiff at the request of his solicitors in January 2008, was asked to consider whether the incidents were related. He was told by the defendant’s solicitors that the plaintiff’s accounts as to the second incident varied and included having to jump out of the way of a turning truck and also hitting the truck with his knee.
125 Mr Hooper concluded it was absolutely impossible to state definitely one way or another. He noted, on the basis of the views of Dr Blake and Mr Love, the plaintiff was considered, following the incident, to have only a meniscal tear. This tear was attended to surgically and the plaintiff was certified fit to go back to work in May prior to re-injuring his knee in July.
126 Being the devil’s advocate, however, Mr Hooper thought it was possible that the plaintiff partially tore his cruciate ligament in the incident and the further major episode in the second incident further damaged an already weakened ligament. He noted it was also possible that the plaintiff’s knee was not fully rehabilitated and the muscle control was not sufficient to stabilise the knee following the July incident. He noted they were theoretical concepts only and it was impossible to give a definite answer as it really depended on the severity of both of the injuries. He noted he had seen people rupture their cruciate ligaments from a simple fall, as in the July incident. He had also seen people rupture that ligament by a sudden contraction of muscles without any major incident.
127 Based on the material from the plaintiff’s treating doctors, Mr Hooper thought it was not unreasonable to conclude that the two incidents were unrelated. He noted that if one has an uncomplicated medial meniscal tear and works hard with rehabilitation, the knee can be very functional again after about three or four months.
128 Mr Hooper concluded it was likely that there were two separate incidents based on the evidence given to him by the plaintiff’s treating doctors, but it was theoretically possible the plaintiff may have damaged his anterior cruciate ligament in the incident. In his view, there was absolutely no way of knowing this and he thought one must draw conclusions based on evidence, not only hypotheticals.
129 The defendant relied upon extracts from the clinical notes of Dr Hudson, who treated the plaintiff between 13 March 2003 and 4 December 2003. On examination on 13 March 2003, Dr Hudson recorded that the plaintiff, twisted his right knee at work on 24 January and was awaiting an arthroscopy. Dr Hudson last saw the plaintiff prior to the second incident on 15 May 2003. On that date, Dr Hudson certified the plaintiff fit for modified duties from 20 May 2003 to 16 June 2003.
130 Dr Hudson recorded on 2 July 2003 that - “The right knee had been perfect but there was an accident at work this am – things were going well – had to jump out of the way of a turning truck – the bad knee hit the truck”. He noted that the plaintiff complained of pain under the patellofemoral ligament of the right knee.
131 The defendant also relied on extracts from the clinical notes of the plaintiff’s current treating general practitioner, Dr Blake. In particular, Dr Blake recorded an attendance on 24 January 2003 where the plaintiff complained of being injured at work – “today slipped while carrying meat”. On that date a note was also made that the plaintiff slipped at work on 27 December 2002. Dr Blake did not see the plaintiff between 29 January 2003 and October 2004.
Compensable Injury
132 Section 134AB(1) of the Act permits the bringing of proceedings only in respect of compensable injuries “arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999”.
133 Thus, it is incumbent on the plaintiff to establish by probative evidence and with some specificity:
(a) what injury is relied upon; (b) further, that that injury is referable to employment on or after 20 October 1999. 134 Counsel for the plaintiff submitted there was a compensable injury on the said date in this case. He relied upon the decision of Ashley JA in Grech v Orica Australia Pty Ltd (2006) 14 VR 602, and referred in particular to paragraphs 45, 54, 58, 67 and 68.
135 At para 58, Ashley JA said that a consequence may have a multiplicity of causes including a multiplicity of compensable injuries. The words “results from” have been construed to require much less than that injury be the sole cause of a consequence.
136 At para 65, Ashley JA noted that in principle the question to be resolved is - did the compensable injury result in or materially contribute to the incapacitating consequences?
137 Thus, provided that the plaintiff establishes that the subject compensable injury on the said date materially contributed to the impairment and its consequences, and will continue to do so permanently, then the role of the other injuries, resulting from the second incident, does not preclude a court concluding that there was an appropriate causal link between the compensable injury on the one hand, and consequences relied upon on the other.
138 Counsel for the defendant submitted the primary point was there are two discrete incidents: the first in January 2003; the second in July 2003. It was submitted that the plaintiff’s account of what happened in the second incident had changed substantially over time and that he had sought to downplay the significance of those events and change what was a dramatic incident to something more benign.
139 Counsel for the defendant relied upon a number of histories of the second incident taken by the plaintiff’s treating doctors and medico-legal examiners. These included:
ƒ Mr Love’s note of the plaintiff’s description of the second incident taken on 10 July 2003 of the plaintiff jumping in fright and striking his knee on the tank on the truck. ƒ Dr Hudson’s entry of 2 July 2003 that: “Right has been perfect but accident at work this am. Things were going well. Had to jump out of the way of a turning truck. The bad knee hit the truck.”
ƒ On 29 June 2004, Dr Rowe recorded that the plaintiff jumped out of the
way of a truck, twisted his knee and felt something give.ƒ On 2 August 2005, Dr Dharwadkar noted that the plaintiff had to jump out
of the way of a speeding truck and re-damaged his knee.140 It was submitted these histories differed from the plaintiff’s evidence and they suggested the second incident was of greater significance than the plaintiff was prepared to concede.
141 Counsel for the defendant also submitted that the plaintiff apparently recovered after the first surgery, relying upon Dr Hudson’s note of 2 July 2003 that his right knee has been perfect, the fact the last certificate of incapacity expired on 16 June 2003, the plaintiff only attended his general practitioner three times between the incident and the second date (the last visit being on 15 May) and no medication was prescribed during that time.
142 In such circumstances, it was submitted that a real cloud was cast over the plaintiff’s maintenance of symptoms and difficulties associated with his right knee between the incidents.
143 In response counsel for the plaintiff submitted that the plaintiff’s version of the incident was unchallenged. It was a significant event with a great amount of weight being taken on the plaintiff’s knee. He twisted and hit his knee on the truck and then fell down the stairs landing on his back – the twisting being a classic situation that can implicate an anterior cruciate tear. Further, he required assistance to drive the truck after he fell.
144 It was submitted that the plaintiff was still experiencing problems with his knee at the time of the second incident. He was taking 4 to 8 Panadeine Forte per day, he was still experiencing pain and flare-ups. His right quadriceps was weak and he had difficulties walking. He was working on restricted duties with no lifting and he had not been certified fit to return to his pre-injury heavy normal duties.
145 Counsel for the plaintiff also relied upon medical opinion as to this issue.
146 Mr Love, Mr Miller and Mr Simm agreed there was a subclinical injury/in substance tear resulting from the incident which was not detected on the first arthroscopy.
147 Mr Love felt the plaintiff suffered a bucket handle tear of the medial meniscus in the incident which inherently made the plaintiff’s knee stable by virtue of the torn cartilage jamming the knee. This tear, in his view, was a very significant injury and probably led to some weakness of the anterior cruciate ligament. Mr Love thought the plaintiff’s current situation was principally a consequence of the incident.
148 Further, Mr Simm thought it was unlikely an anterior cruciate injury would be suffered through direct trauma rather then twisting under load – a view shared by Mr Miller. In such circumstances, a posterior tear would be more likely. Mr Simm considered that the second incident in isolation would not be sufficient to result in an anterior cruciate tear. He considered the incident materially contributed to the plaintiff’s current condition.
149 Mr Miller thought the plaintiff’s current clinical status reflected the effects of both incidents but predominantly the incident.
150 Mr Hooper, upon whom the defendant relied, initially thought there may have been a tear of the anterior cruciate ligament in the incident. Having been told of a version of the second incident that the plaintiff denied – namely jumping out of the way and hitting the truck with his knee – he still thought it theoretically possible the incident had resulted in a tear.
151 Mr Dunin based his view that there was no relationship between the incident and the plaintiff’s present condition on an acceptance that the plaintiff had completely recovered from his knee injury suffered in the incident as of the second date.
152 Accepting the plaintiff’s evidence as to circumstances of the incident and his ongoing knee pain thereafter, and taking into account the preponderance of medical evidence in this regard, I accept the plaintiff suffered a compensable injury to his right knee in the incident which is a cause of his present impairment.
153 I accept that the plaintiff suffered a physically based impairment to his right knee in the incident. Counsel for the defendant pointed out that, notwithstanding the raising of some issues relating to non organic factors – such as Mr Simm, Mr Dunin and Mr Miller commenting about pain behaviour or symptoms of chronic pain syndrome – the defendant has not sought to cloud the issues in this case by making issue of non organic factors.
154 It was submitted that whilst this was an issue in the background of the case, the real issue was one of causation. It was submitted inorganic factors otherwise went to the plaintiff’s credit and whether his evidence as to the incident and his level of disability should be accepted.
155 The nature of the impairment to the right knee was described in some detail by counsel for the plaintiff as “internal derangement of the right knee involving a torn medial meniscus necessitating arthroscopy and medial meniscectomy and subclinical injury to the anterior cruciate namely partial and/or in substance tear of the anterior cruciate ligament”.
Ansett v Taylor
156 I am mindful of the fact that the defendant accepted liability for the payment of the costs of the third surgery. Further, the plaintiff’s impairment claim relating to the incident lodged in October 2004 was accepted in October 2005 and he also received ongoing benefits pursuant to the incident claim.
157 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admissions should ordinarily be regarded as very significant ”… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct”.
158 Counsel for the defendant submitted there had been some attempt by virtue of the affidavit of Sudhir Reddy to explain why liability was accepted against the incident claim.
159 Ms Reddy deposed that in hindsight, given that the need for the third surgery arose out of a further incident (not the January incident for which liability had been accepted), it was evident that liability, and indeed further payments of compensation, ought not to have been accepted against the original claim. It was submitted her evidence cast some doubt over the value of an admission that could be sought to be made or extracted on the Ansett v Taylor basis.
160 Further reliance was placed upon Mr Love’s comments to Allianz in correspondence dated 4 September 2003 where he requested liability should be accepted for the third surgery as he assumed that the injury suffered in the second incident was what produced the instability.
161 Whilst this evidence may provide some explanation for the acceptance of liability for the surgery and also the impairment claim, having found there is a compensable injury in this case, I am not required to consider this issue further.
Is it Serious?
162 Section 134AB(37) defines “serious injury” as a permanent serious impairment or loss of body function.
163 To satisfy the test under the Act the impairment in relation to each of pain and suffering and loss of earning capacity must have consequences that when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
164 The impairment must be permanent, in that it is likely to last into the foreseeable future.
165 The statutory test requires a judgment based on an evaluation of all the evidence.
166 The term “serious” requires the impairment and its consequences to this particular plaintiff to be reviewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA at para 29.
167 Counsel for the defendant submitted that the impairment did not meet the test of seriousness. The surgery undergone by the plaintiff had been relatively minor and was not as significant as spinal surgery. It was submitted that the possibility (high probability) of a knee replacement is fourteen years from now and is by no means a certainty.
168 It was submitted that the plaintiff’s treatment had been fairly conservative with some physiotherapy and medication. Any adverse effects from medication had ceased when the plaintiff stopped taking Lyrica in 2008. It was submitted that the plaintiff’s situation was not one of constant pain but one of pain aggravated by activity.
169 Whilst counsel for the defendant conceded that the fact the plaintiff has some restrictions associated with former vigorous activity cannot be avoided, it was submitted the plaintiff was not boxing or engaged in martial arts when he started work. Further, any problems he may have in relation to the performance of domestic or household tasks do not meet the definition of serious injury.
170 Taking into account all the evidence, I accept that the plaintiff’s impairment is serious and permanent.
171 I accept the plaintiff’s evidence as to the level of his pain and incapacity in the performance of his pre injury work, domestic and social activities.
172 The plaintiff’s evidence in this regard was unchallenged.
173 I accept that the plaintiff has never been free of knee pain, albeit of varying degrees since the incident.
174 The most significant consequence for the plaintiff is his inability to return to full time unrestricted manual work as a meat lumper or in another similarly physical job – a view shared by all treating doctors and medico-legal examiners involved in this case.
175 The plaintiff is unable to sit or stand for prolonged periods of 30 minutes or more. He can walk for 20 minutes two to three times a day. His complaints to Mr Miller in December 2008 of aching, pain and discomfort in his knee, together with swelling and a feeling of giving way and weakness, were unchallenged. He walks with a limp and has difficulty going up and down stairs.
176 The plaintiff has problems driving and cannot do so safely with his right foot. He is unable to perform domestic tasks without pain and difficulty. He is a relatively young man who cannot run or engage in sporting or recreational pursuits.
177 His sleeping is often disturbed by pain and he continues to require significant pain medication.
178 I am of the view that the plaintiff suffered a serious injury to his right knee in the incident. When judged by comparison with other cases in the range of possible impairments, the impairment to his right knee may be fairly described as more than significant or marked and as being at least very considerable.
179 Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
Loss of Earning Capacity
180 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing he has a loss of earning capacity of 40 per cent or more – S.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 181 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 182 The former must be calculated by reference to the six year period specified in s 134AB(38)(f).
183 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
184 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
185 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
186 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect.
187 Whilst counsel for the defendant initially suggested a lower figure involving an average of the plaintiff’s earnings in the three years prior to the incident, he did not disagree strongly with the figure of $50,314 put by plaintiff’s counsel. 60 per cent of that figure is $32,526.
188 The lower figure initially put by counsel for the defendant included earnings of a total of $6,911 in the 2001/2002 financial year from Centrelink - a situation not accepted by the plaintiff, who believed he had worked in that period.
189 At the time of this hearing the plaintiff’s gross earnings from personal exertion are nil.
190 The next enquiry is what the plaintiff is capable of earning in suitable employment as defined in Section 5 of the Act.
191 Whilst it was conceded by counsel for the defendant that the plaintiff is incapable of performing unrestricted heavy labouring work, it was submitted that he had the capacity for suitable employment, such as a youth worker or in a related field or clerical position.
192 Counsel for the plaintiff submitted that given the plaintiff’s evidence of his concerns at being able to complete the Youth Worker course, and also his view as to his inability to work full time, it should be accepted that he has the requisite loss of earning capacity and that he will continue to do so permanently.
193 Whilst it was submitted that the availability of work in his local area was a relevant consideration, it is the plaintiff’s physical capacity that I am required to consider.
194 Although Mr Miller thought a return to full time sedentary work would be problematic due to his work-related injury, he, together with Dr Blake, Mr Love and Mr Hooper, considered the plaintiff had a capacity for full time sedentary duties not involving bending, twisting, lifting or bending.
195 I accept the preponderance of evidence that the plaintiff has the capacity to complete the youth worker course and upon so doing he has a capacity for full time duties.
196 The plaintiff is a relatively young man who has shown an interest in youth work as a result, to some extent, of his own experiences as a young person. The plaintiff has no particular difficulties with reading or comprehension, having attended school until starting Year 12. According to Dr Blake, the medication the plaintiff is presently taking will not have any adverse effect on his ability to study or work.
197 If the plaintiff obtained full time work as a youth worker he could, on his own evidence, expect to earn approximately $50,000 per annum. Gross annual earnings for full time work in the clerical fields suggested by the defendant, such as enquiry clerk, would exceed $40,000 per year – both amounts are clearly in excess of the threshold of $32,526.
198 In the circumstances, I am not satisfied by the plaintiff that any incapacity for employment resulting in loss of earning capacity of 40 per cent or more is permanent.
199 I believe that the plaintiff has the capacity to earn in suitable employment 60 per cent or more of his gross income as determined by the formula in sub section (f).
200 In light of my findings as to sub section (f), the plaintiff has also not discharged the onus pursuant to sub section (g) in relation to retraining and rehabilitation.
201 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and I dismiss the plaintiff’s claim in relation to loss of earning capacity.
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