Williams v Hallam Manufacturing Pty Ltd
[2016] VCC 722
•17 March 2016 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01182
| WYNN WILLIAMS | Plaintiff |
| v | |
| HALLAM MANUFACTURING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10 and 15 March 2016 | |
DATE OF JUDGMENT: | 17 March 2016 (Revised) | |
CASE MAY BE CITED AS: | Williams v Hallam Manufacturing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 722 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering and economic loss consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Mr A J Saunders | Maurice Blackburn |
| For the Defendant | Mr R Stanley | Russell Kennedy |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding seeking damages in respect to both pecuniary loss and pain and suffering consequences arising out of the workplace injury the subject of this application.
2 The relevant injury and impairment of function is that of the lumbar spine.
3 In the application, the plaintiff has filed two affidavits, dated 9 October 2014 and 24 February 2016, respectively. In addition, the plaintiff gave viva voce evidence and was cross-examined. Otherwise the parties rely upon medical reports and documents tendered by them, which comprise the bulk of the two Court Books in this instance.
4 The content of the tendered documents, the plaintiff’s affidavit evidence and the viva voce evidence are a matter of record. I do not intend to specifically refer to that material other than where it is necessary to do so in order to give context to my reasons in this instance.
5 I propose firstly to deal with the plaintiff’s application for leave to claim damages for economic loss associated with his injury in this instance, as if he succeeds in this application, it will largely determine the totality of the application.
6 The medical evidence satisfies me that the plaintiff has suffered an injury to his lumbar spine, which is appropriately described as involving an aggravation of a pre-existing asymptomatic degenerative condition in his spine of some significance, which has been variously described by the medical practitioners who have opined in this instance as involving:
· an L4-5 left-sided disc prolapse which is responsible for chronic lower back pain;[1] or
· an annular disruption at L5-S1 resulting in ongoing mechanical pain and very intermittent left radicular pain.[2]
[1]See the report of Mr Richard McArthur dated 9 July 2013
[2]See the report of Dr Robyn Horsley dated 6 January 2016
7 While various terminology has been employed by the doctors who have opined in this instance as to the specific diagnosis of the disability in his back with which the plaintiff presents, no issue arises in the medical evidence as to the fact that the plaintiff has suffered an injury to his lumbar spine, the effect of which is to:
· permanently preclude him from the unrestricted work he performed with the defendant at the time at which he sustained his injury and in other employment for many years prior to that;
· confine him to largely sedentary-type employment.
8 It is appropriate that I record my findings as to the plaintiff’s viva voce evidence. Whilst the plaintiff was cross-examined at length as to his capacity for general activity and for work, I found the plaintiff’s evidence to be generally consistent with his affidavit evidence as to these issues and in no way do I consider that his viva voce evidence detracted from his affidavit evidence as to his capacity to engage in suitable employment or to generate income.
9 Upon the issue as to his capacity for work and the generation of income, I am satisfied that the plaintiff presents as a truthful and reliable witness for the following reasons:
(i)Firstly, no medical practitioner has opined that the plaintiff presents with symptoms which are exaggerated or are not consistent with the physical injury which he has suffered;
(ii)Secondly, it is not suggested that the plaintiff has failed to make appropriate attempts to rehabilitate himself or to seek re-employment. To the contrary, the plaintiff has not only demonstrated the motivation to undergo a rehabilitation course and to largely wean himself off prescription-strength pain control (which he now employs only occasionally) but has also made numerous unsuccessful applications for part-time work;
(iii)Thirdly, on a number of occasions during his evidence the plaintiff readily volunteered concessions as to the fields in which he might be employed, potentially to his detriment;
(iv)Fourthly, the plaintiff has, without any external assistance, found part-time employment as a casual entertainer of residents in nursing homes, through which he earns income in the vicinity of $240 per week, before taking into account expenses.
10 These facts, considered in the context of the plaintiff’s long history of employment (which includes a history of suffering injury from which he made a recovery and returned to employment), satisfy me that the plaintiff was, and remains, well motivated to work and to minimise the consequences of his injury upon his life. I am further satisfied that the plaintiff has given a truthful and accurate account as to the level of his symptoms and disabilities and the impact of his symptoms upon his capacity for employment.
11 Insofar as any challenge was made to the plaintiff upon the issue as to the timing of his complaints as to his difficulty with sleeping or his incapacity for bushwalking or kayaking, although such a challenge has no real relevance as to the plaintiff’s retained capacity for employment, it is nevertheless appropriate that I record that I accept the plaintiff’s explanation as to the reason for that timing.
12 In this application, it is put on behalf of the defendant that a process of “disentangling” is required for the purpose of identifying the organic consequences of the plaintiff’s injury upon his capacity for activity and work as distinct from the emotional consequences associated with that injury.
13 In my opinion, there is no merit in this point for the following reasons:
(i)Firstly, while the plaintiff gave evidence that on six occasions during 2013 and six occasions during 2014 he consulted a psychiatrist and was prescribed medication which he did not take, it is clear that during the same period the plaintiff was assessed on behalf of the defendant by Dr Natalie Krapivensky, psychiatrist, who concluded the plaintiff presented with no level of psychiatric impairment. While it is put on behalf of the defendant that Dr Krapivensky arrived at this diagnosis in the absence of the history that the plaintiff had sought treatment of the type to which I have previously referred, it is nevertheless clear that in the course of her examination, Dr Krapivensky undertook a medical state examination, which revealed the plaintiff to be functioning completely normally;
(ii)Secondly, there is no suggestion in any of the medical reports relied upon by the parties in this matter that the plaintiff presents with any condition other than some anxiety and depressive features which are secondary to, and caused by, the effect upon him of his physical injury. At the same time, no medical practitioner has opined that any emotional condition with which the plaintiff may present impacts adversely upon his level of physical function or influences in any way their respective assessments as to the plaintiff’s capacity for work and activity.
14 To suggest in these circumstances that the plaintiff’s evidence to the effect that in the last six weeks by reason of anxiety associated with his upcoming court case, he has had a tendency to reduce his exercise levels from walking three days a week to walking two days a week, should somehow impact upon the process I am required to undertake, which involves assessing the plaintiff’s capacity for activity and employment on the basis of the totality of the evidence in this instance, in the context of the medical evidence (all of which, with the exception of the report of Dr Horsley, was generated well outside the relevant period and described the plaintiff’s capacity for employment and as being stable) lacks any objectivity or persuasiveness.
15 Whilst dealing with aspects of the submissions made by counsel for the defendant which I find to lack persuasion, it is appropriate that I mention the position taken that the plaintiff’s receipt of a carer’s allowance demonstrates a capacity to work. Given the plaintiff’s evidence as to the activities he performs in assisting his wife, and the pace at which he performs those activities, when considered in the context of the medical evidence to which I will subsequently refer as to the plaintiff’s limited capacity for work, I find that submission to be totally unpersuasive.
16 There can be no issue that, in the course of cross-examination, the plaintiff readily accepted that:
(i)over the years there has been a reduction in his level of pain and his need to employ regular prescription-strength pain control;
(ii)he possessed a capacity to drive for 50 minutes without a break, and ride a motorcycle for up to 50 kilometres or so without a break;
(iii)he had a capacity for restricted activity around the household which included acting as a carer for his wife;
(iv)he presented with a large and varied work history and in that sense, with a significant armoury of skills which he could bring to the table as an employee.
17 Counsel for the defendant described this skillset as affording the plaintiff numerous opportunities for suitable employment. Whilst the plaintiff conceded as much, it is equally conceded by the parties that the relevant employment opportunities which have been identified for the plaintiff on behalf of the defendant after two extensive vocational assessments undertaken by the WorkFocus Australia Group, involved only the following:
(i) the plaintiff’s current employment as a professional entertainer (this occupation having been unearthed through the plaintiff’s own motivation and absent any input from WorkFocus Australia);
(ii) customer service assistant;
(iii) retail assistant; and
(iv) transport and despatch clerk.
18 I am satisfied that the evidence establishes that the plaintiff has, putting aside any physical capacity for employment, the skill, training and experience for employment as:
(i) an entertainer;
(ii) a customer service assistant; and
(iii) a retail assistant.
19 As to the activity of transport and despatch clerk, the advertised activities described in that work[3] include:
[3]Defendant’s Court Book (“DCB”) 138
· arranging internal distribution of goods received;
· organising the despatch of goods with completed documentation;
· maintaining prescribed records of goods received and despatched;
· recording customs clearance requirements and authorised collection of cargo;
· calculating storage and clearance charges and billing customers; and
· receiving details of outgoing cargo and arranging booking of freight, space and collection of goods from customers;
the performance of the bulk of which would clearly involve the application of computer skills.
20 I note that, in describing the above job, the NES assessor recommended:
“Mr Williams would be required to complete further computer retraining in order to improve his skills in this area. It is expected that Mr Williams’ computer skills would need to improve to an intermediate level in order to secure work in this area. A comprehensive computer course is recommended in order to (sic) this to be achieved.”[4]
[4]DCB 139
21 It was a consistent feature of the plaintiff’s evidence that he has no computer skills and requires the assistance of his wife even to undertake fairly basic computer activity. Given the length of time which has elapsed since the plaintiff undertook work involving activity other than physical labour, his past work history is in no way inconsistent with that evidence and I accept it.
22 The description by the plaintiff of his lack of aptitude to operate a computer, when considered in the context of his age and the opinion expressed by Dr Horsley, an occupational physician, that the plaintiff “is not a retraining or a redeployment candidate”,[5] satisfies me that it is unlikely that the plaintiff would gain computer skills of an adequate standard to meet the description of possessing computer skills of an “intermediate level”, as is required to be employed as a transport and despatch clerk.[6]
[5]Plaintiff’s Court Book (“PCB”) 63
[6]DCB 139
23 For these reasons I exclude that work as meeting the description of work which involves suitable employment pursuant to the provisions of the Act.
24 No issue was taken in this case that the plaintiff, but for his injury:
· had an intention to work to the age of seventy;
· derived considerable enjoyment from his work; and
· is depressed by reason of the fact that he has been unable to secure employment which he feels falls within his capacity for activity, notwithstanding having made numerous applications for employment on a part-time basis.
25 All of the above reinforces the view which I have expressed as to the fact that the plaintiff presents as a truthful, reliable and well-motivated witness.
26 Further, I am satisfied that my observations of the plaintiff in court as he regularly altered his posture and moved between standing and sitting as he gave evidence was consistent with the preponderance of the medical evidence and the presence of a significantly reduced tolerance for sitting and standing activities.
27 As to the medical reports in the case which opine upon the issue as to whether the plaintiff has a capacity for full-time or part-time modified duties, the medical opinion in support of the former position is in the minority.
28 In his report of 27 August 2012, Dr Ian McInnes, Clinical Associate Professor of Surgery, opined that the plaintiff was incapacitated for return to full-time pre-injury duties, but that he was fit to carry out modified duties.
29 Mr Cunningham, the plaintiff’s treating orthopaedic surgeon, made similar comments in reports of 10 July 2013 and 2 February 2016, in which he opined that the plaintiff had a capacity only for sedentary duties.[7]
[7]PCB 30 and 32
30 Neither of these two doctors opined as to whether the capacity for work identified by them was unrestricted such that it involved the capacity for full-time hours.
31 The most robust of the medical opinions as to the plaintiff’s capacity for work is that of Dr Malcolm Brown, an occupational physician, who examined the plaintiff on behalf of the defendant on 13 May 2014. Mr Brown opined that the plaintiff had a capacity for suitable duties on a full-time basis, which avoided constant standing and frequent bending and heavy lifting.[8]
[8]DCB 36
32 Mr Richard McArthur, orthopaedic surgeon, who has examined the plaintiff on two occasions on behalf of the defendant, opined, as at 9 July 2013, that the plaintiff’s current capacity for work was limited to work of a sedentary nature, which could be initially undertaken at the rate of 20 hours per week, but with satisfactory progress, could be increased to 38 hours per week.[9]
[9]DCB 23 – 24
33 Professor Richard Bittar, a neurosurgeon, in a medico-legal report on behalf on the plaintiff, commented that the plaintiff had minimal current capacity for work and opined that it was doubtful that the plaintiff would be able to work more than two hours per day in a reliable and consistent fashion.[10]
[10]PCB 39
34 Dr Daniel O’Donovan, the plaintiff’s treating medical practitioner, opined that the plaintiff had a capacity for activity in modified duties undertaken for three days per week at four hours per day.[11]
[11]PCB 28
35 Dr Robyn Horsley, an occupational physician, in a report dated 6 January 2016, opined that the plaintiff possessed a capacity for work in a sedentary role of somewhere between 15 and 20 hours per week.[12]
[12]PCB 63
36 The plaintiff, in his affidavit evidence and in the course of his viva voce evidence, maintained that he had a capacity for suitable employment, but that given the aggravation of his symptoms associated with:
· sitting for long periods;
· standing for long periods; and
· car travel;
he would be able to tolerate working in his current employment as an entertainer of aged and infirmed residents of nursing homes for three sessions per week and further, that his limited tolerance for sitting or standing were such as to limit his employment opportunities for part-time employment to approximately 15 hours per week.
37 I am satisfied, having regard to the plaintiff’s evidence as to the enjoyment he derived from his employment and the fact that he has, through his own initiative, been able to find employment which he is fit to undertake, that the plaintiff wants to work and is doing his best to exercise the true capacity which he has for employment-related activity. It follows that I am satisfied that the plaintiff’s evidence as to his physical tolerance for that activity is reliable and that it is limited to part-time work.
38 This evidence is in turn supported by, and is consistent, with the significant body of the medical opinion in this instance to the effect that the plaintiff has a capacity only for part-time work.
39 For the reasons set out above, I find that evidence to be more persuasive than the limited evidence which opines unequivocally that the plaintiff possesses a capacity for full-time work.
40 As to the body of the medical opinion to the effect that the plaintiff has a capacity only for part-time work, the most robust of those opinions is that of Mr Richard McArthur to the effect that the plaintiff’s capacity should be fixed at a high point of 20 hours per week, or perhaps more should he demonstrate a capacity to cope with such work. The most conservative is that of Professor Bittar to the effect that the plaintiff’s tolerance for work would be limited to 10 hours per week.
41 I am satisfied that the plaintiff’s current work is not ideal for him, in that it involves driving, an activity which the plaintiff gave evidence (which I accept) aggravates his symptoms. I accept the plaintiff’s evidence as to his capacity for employment as an entertainer is a maximum three sessions per week. I do so accepting the plaintiff’s evidence as to that capacity which is in turn reinforced by the plaintiff’s evidence, which was not challenged, that he had advised his agent that he was limited to local work in this type of employment.
42 In assessing the extent of the plaintiff’s retrained capacity for part-time work, I do so taking into account the consensus of medical opinion which identifies sedentary-type work as being most suitable for the plaintiff.
43 In her report of 3 March 2016,[13] Ms Katrine Green identified the activities associated in both the work of a customer services assistant and as a retail assistant as involving prolonged standing. It follows that each of these occupations involve a large component of activity which falls outside the range of activity generally recommended as being suitable for the plaintiff, namely, sedentary activity.
[13]PCB 81 – 86
44 I am satisfied in these circumstances that it is likely that in part-time employment in these fields, the plaintiff would have a tolerance for activity which fell towards the lower range of the opinions voiced as to the plaintiff’s tolerance for part-time work.
45 For this reason I am satisfied that I should fix the plaintiff’s capacity for part-time employment in the occupations of customer service assistant or retail assistant at fifteen hours per week.
46 It follows that I am satisfied that the plaintiff has established, in this instance, that he has lost the capacity to generate income which exceeds the threshold level fixed by the Act.
47 Given my acceptance of the plaintiff’s evidence that he intended to work until he attained the age of seventy and the satisfaction which he derived from his employment, I am satisfied that this loss meets the statutory definition of an impairment which is more than significant or marked, and as being at least very considerable.
48 It follows that the plaintiff is entitled to the leave sought in this proceeding.
49 I will hear the parties as to the order to be made in this instance and also upon the issue of costs.
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