Zambara v Complete Shopfitters Pty Ltd
[2013] VCC 1809
•28 November 2013
| IN THE COUNTY COURT OF VICTORIA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-03520
| ANTONIO ZAMBARA | Plaintiff |
| v | |
| COMPLETE SHOPFITTERS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2013 | |
DATE OF JUDGMENT: | 28 November 2013 | |
CASE MAY BE CITED AS: | Zambara v Complete Shopfitters Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1809 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the lower back – concession that the pain and suffering consequences are “serious” – whether the loss of earning capacity consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: The plaintiff is given leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Maurice Blackburn |
| For the Defendant | Mr P Jens | Thomsons lawyers |
HIS HONOUR:
1 Before the Court is an application brought by Originating Motion filed 20 July 2012 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 him arising out of or in the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for loss of earning capacity damages. The defendant conceded that the plaintiff’s pain and suffering consequences meet the statutory test.
3 Mr J Mighell SC appeared with Mr D Purcell of Counsel for the plaintiff and Mr P Jens of Counsel appeared for the defendant.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the lower back.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· Ms Julie Marie Verzaci gave evidence and was cross-examined;
· The plaintiff tendered his Court Book (“PCB”): Exhibit A;
· The defendant tendered its Court Book (“DCB”): Exhibit 1.
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
The statutory scheme
7 The relevant considerations which apply to such an application based upon paragraph (a) are as follows:
(a) The plaintiff must prove that he suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(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”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a), (19)(b) and (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(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)(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;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined;
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately;
(i) In conformity with Barwon Spinners, 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.
The Plaintiff’s background
8 The plaintiff was born on 1 September 1965. He has been previously married. He has two children of his former relationship. At the time he swore his first affidavit on 4 April 2012 they were eighteen and nineteen years of age respectively. He is presently living in a domestic partnership with Ms Verzaci.
9 The plaintiff was born in Italy. He migrated to Australia with his family when he was three years of age. He last attended secondary school to Year 10 level. After leaving school, he commenced and completed an apprenticeship as a cabinetmaker.
10 After the completion of his apprenticeship, the plaintiff was employed as a cabinetmaker and as a storeman. His only other qualifications are licences he holds to drive a forklift, and similar equipment requiring licensing.
11 The plaintiff commenced employment with the defendant in about December 2008. The defendant built counters and cabinets for the Coles supermarket.
The incident
12 On 6 April 2009, the plaintiff was building a cabinet. It was sitting on a workbench. It weighed about 50 kilograms. The plaintiff lifted it from the bench to ground level. In the course of doing so, he felt a twinge of pain in his lower back. Shortly following that incident, he developed pain in his lower back and pain radiating into his right leg.
The injury
13 The plaintiff saw Dr Khatoon, general practitioner, on 7 April 2009. He was referred to have physiotherapy. He was also referred to have scans of his lower back.
14 It would appear that the plaintiff was able to continue working, but on light duties. He continued working until May 2009 on light duties, when he ceased work altogether.
15 Given the concession by the defendant that the plaintiff’s pain and suffering consequences meet the statutory test, I propose to provide a short summary of the medical evidence. Doing so will isolate the relevant opinions regarding the plaintiff’s capacity for suitable employment.
The medical evidence
16 The plaintiff saw Dr Khatoon, Dr Wilk and Dr Bialylew, general practitioners, before his treatment was essentially provided by Dr Wilk. He first saw Dr Wilk in June 2009. According to the report of Dr Bialylew dated October 2013,[3] the plaintiff was referred to have an x-ray, and later a CT scan, which was undertaken on 20 April 2009. Dr Bialylew considered that the CT scan showed bulging of the L4-L5 disc, which may have been the cause of the symptoms complained of by the plaintiff of lower back pain.
[3]PCB 19-26
17 Dr Bialylew referred the plaintiff to Dr Patrick, rheumatologist, and later Dr Mitchell, physician. It would appear that he referred the plaintiff to both of those medical practitioners some time in May 2009. He also referred the plaintiff to have physiotherapy and hydrotherapy.
18 The plaintiff saw Dr Mitchell on 11 June 2009. He provided a report dated July 2010.[4] He performed the following treatment on the plaintiff:
[4]PCB 39-41
· 9 July 2009 – bilateral sacroiliac joint injections;
· 29 July 2009 – bilateral L3-4-5 medial branch blocks;
· 11 August 2009 – right L4-5-6 and left L5-6 medial branch blocks;
· 6 October 2009 – control blocks on the right L4-5-6 and left L5-6 medial branches;
· 25 November 2009 – radiofrequency neurotomy on the right L4-5-6-S1-2;
· 7 December 2009 – radiofrequency neurotomy on the left L5-6-S1-2.
19 Mr Mitchell was of the opinion that the treatment he provided the plaintiff had improved the plaintiff’s situation by about 20 per cent; however, he was also of the opinion that the plaintiff had significant central disc pain. He referred the plaintiff to have a further MRI scan, which was undertaken on 15 February 2010.[5] According to Dr Mitchell, it disclosed the desiccation of L4-5 with a normal looking disc at L5-6.
[5]PCB 105-106
20 Dr Mitchell referred the plaintiff to have a provocative discography, which was undertaken on 29 March 2010. He considered that the discogram was positive for the L5-6 disc being the generator of the plaintiff’s pain. Dr Mitchell offered the plaintiff an injection, a necleoplasty, or spinal surgery. The plaintiff declined to have any further treatment.
21 Dr Wilk referred the plaintiff to Mr D’Urso, neurosurgeon.
22 The plaintiff saw Mr D’Urso on 31 March 2010. He provided two reports, dated 31 May 2010[6] and 6 June 2013.[7] He reviewed the second MRI scan and the discography. After examining the plaintiff, he expressed the following opinion:
“Tony Zambara presents with a history of back pain and sciatic symptoms. This would appear to be related to an L5-L6 disc injury with an annular fissure and positive discography has been reported. Currently, Tony is persisting with medical management and percutaneous intervention for his condition. Fusion procedure has been discussed as an option should symptoms persist. Currently, Tony has no capacity for pre-injury duties and appears to have limited capacity for any type of physical activity.”
[6]PCB 54-55
[7]PCB 56
23 Mr D’Urso referred the plaintiff to have a further MRI scan, which was undertaken on 1 June 2012. He considered that the MRI scan showed a minor L5-L6 disc prolapse without nerve root impingement and some facet joint degeneration. He noted a minor right paracentral fissure at L2-3.
24 The plaintiff continues to be treated by Dr Wilk. He prescribes the plaintiff Lyrica and Panadeine Forte. He takes 150 milligrams of Lyrica in the morning and 150 milligrams in the evening. He takes Panadeine Forte as needed. His use of Panadeine Forte varies. He sometimes takes one or two tablets per day, and on other days takes five or six tablets per day.
25 Dr Wilk has provided the plaintiff with certificates of capacity. The most recent certificate was issued on 30 October 2013. After Dr Wilk examined the plaintiff on 30 October 2013, he certified him as unfit for duties from 30 October 2013 to 26 November 2013 as a result of lower back pain and probable lumbar disc disruption.[8]
[8]PCB 27a-27b
The Medico-legal opinions
26 Mr Wilde, orthopaedic surgeon, examined the plaintiff on 3 September 2013. He provided a report dated 3 September 2013.[9] He was provided with the relevant radiology and an account of the treatment the plaintiff had been provided. He expressed the following opinion:
“The diagnosis is chronic pain syndrome of mixed physical and non-organic aetiology. I do believe that Mr Zambara injured the lumbosacral disc but despite conservative care the disc has only partially healed. As a consequence of this, anxiety and depression have contributed to the development of a chronic pain syndrome. With time, the physical injury (the disc annular tear) has partially healed but the abnormal neurological response driving the pain syndrome means that the patient has not perceived a significant improvement in symptoms.
The prognosis is poor. As I expect he will continue to report substantial pain in his lower back and proximal legs for many years to come.
…
I do not think Mr Zambara can return to work as a hands-on cabinetmaker in the foreseeable future. He should look at retraining into alternative work such as teaching positions in cabinet making at a TAFE.”
[9]PCB 57-63
27 Mr Wilde considered the question of surgery. He did not believe that spinal fusion would assist the plaintiff. He considered that a spinal fusion might be successful, but it would not remove the consequences of the pain syndrome.
28 Dr Sutcliffe, occupational physician, examined the plaintiff on 12 September 2013. She provided a report dated 9 October 2013.[10] She was provided with the relevant radiology and an account of the treatment the plaintiff had been provided. She expressed the following opinion:
“ From the history obtained and following examination and perusal of the accompanying documentation and that reported together with the documentation assessed I believe that Mr Zambara sustained disc arrangement at L5/6 level with the onset of neuropathic pain in the right lower limb as a result.”
[10]PCB 64-75
29 In relation to the plaintiff’s capacity for work, she expressed the following opinion:
“I believe that Mr Zambara has no capacity to undertake pre-injury, suitable or alternate duties when a realistic assessment of capacity for work is undertaken, and I believe that he could not work in a reliable, permanent or consistent basis as a result of the injury sustained.
At this stage I believe he could not work in protected employment because of the intensity of the symptoms and the current impairment and capacity.”
30 Dr Sutcliffe considered that the plaintiff’s prognosis was poor. She believed that he would be troubled by persisting symptoms into the future, and by inference, the same level of incapacity for suitable employment into the future.
31 The defendant had the plaintiff examined by three medical practitioners. The first was Mr Nye, neurosurgeon, who examined the plaintiff on 12 October 2010. He provided three reports, dated 12 October 2010,[11] 23 November 2010[12] and 27 January 2011.[13] Mr Nye was at a disadvantage when he examined the plaintiff. He was only provided with the last MRI scan, which he considered demonstrated degenerative changes in the L4-5 disc, and a very modest central and left-sided disc bulge at that level, which he did not consider was associated with an annular tear.
[11]DCB 1-6
[12]DCB 7-8
[13]DCB 9-10
32 Mr Nye expressed the opinion that the plaintiff had suffered an injury to his lower back. It would appear that the major question posed for his consideration was whether the plaintiff was a candidate for the surgery proposed by Mr D’Urso. Mr Nye was doubtful that the surgery would ameliorate the plaintiff’s lower back condition. He considered that there would be a permanent requirement for modification in the plaintiff’s employment with the exclusion of repeated bending, twisting, prolonged unrelieved periods of standing or sitting, and that the plaintiff should not lift more than 5 kilograms from below waist level.
33 In his subsequent report, he was provided with the lumbar discography, but not all of the results associated with it. He was provided with some other information regarding transforaminal injections which the plaintiff underwent. After he reviewed that additional information, he said that none of it persuaded him to change his previously expressed opinion. He was subsequently provided with information regarding suitable alternative employment, namely, supervisor cabinetmaker, sales representative, sales assistant and vocational education teacher. He considered that they were suitable employment alternatives for the plaintiff. He discounted forklift driving as being suitable.
34 Dr Ho, occupational health consultant, examined the plaintiff on 24 February 2010, 4 December 2012 and 1 October 2013. He provided four reports, dated 26 February 2010,[14] 1 March 2010,[15] 10 December 2012,[16] 19 December 2012[17] and 4 October 2013.[18] Dr Ho also conducted a work site assessment on 26 February 2010. After his last examination of the plaintiff, he expressed the opinion that the plaintiff had suffered a disc strain and an aggravation of degenerative changes from which he had recovered well. He was also of the opinion that the plaintiff could return to the employment referred to in a report of Work Able Consulting Pty Ltd dated 7 July 2010.[19] It identified supervisor-cabinetmaker, sales representative, sales assistant (hardware), vocational education teacher and forklift driver as suitable employment for the plaintiff.
[14]DCB 11-14
[15]DCB 15-20
[16]DCB 21-27
[17]DCB 28-29
[18]DCB 30-34
[19]DCB 54-57. The actual requirements of each of those forms of employment is referred to in its early report at DCB 42-50
35 Mr Dooley, orthopaedic surgeon, examined the plaintiff on 26 April 2012 and 29 October 2013. He provided two reports, dated 16 May 2012[20] and 8 November 2013.[21] After his first examination, he expressed the opinion that the plaintiff had suffered an aggravation of underlying degenerative disc disease in his lumbar spine. He observed that the plaintiff would note ongoing intermittent lower back pain and lower limb pain, which he considered would interfere with the plaintiff’s capacity to engage in a range of employment, domestic and leisure activities. He did not consider that the plaintiff required any orthopaedic treatment.
[20]DCB 35-38
[21]DCB 39-41
36 After his second examination of the plaintiff, Mr Dooley altered his diagnosis from an aggravation of underlying disc degenerative disease to a soft-tissue injury. He considered that the plaintiff’s complaints of pain and disablement were greater than what he had expected to see. He considered that treating the plaintiff’s pain as though it was organically based would only lead to disappointment for the plaintiff. He repeated his previously stated opinion regarding the pain that the plaintiff was likely to note and its interference with his capacity to engage in employment, domestic and leisure activities. He was provided with a report of Work Able Consulting Pty Ltd dated 16 April 2010.[22] He expressed the opinion that the plaintiff could work in employment as a supervisor-cabinetmaker, sales representative, sales assistant (hardware) and vocational education teacher. He did not refer to forklift driving. I infer that he did not consider that the plaintiff was fit for work as a forklift driver.
[22]DCB 42-50
The Plaintiff’s evidence
37 The plaintiff swore two affidavits on 6 November 2013[23] and 14 November 2013.[24] The plaintiff described the pain and disablement he has suffered as follows:
[23]PCB 8-18
[24]PCB 18a-18c
· Fluctuating levels of pain in his lower back and right leg;
· The need for rest, either in his bed or on a couch;
· Difficulty getting comfortable. Sitting for too long increases the pain in his lower back;
· Broken sleep by pain in his lower back, resulting in difficulty getting back to sleep;
· His relationship with Ms Verzaci has been detrimentally affected;
· Disinclination to socialise;
· Loss of contact with his mates from work;
· Inability to engage in sporting and recreational activities with his sons, such as fishing, golf, social cricket and similar activities;
· Inability to go fishing with his mates from work;
· Limitation on driving a car for more than 30 minutes;
· The need for medical treatment and the medication which I referred to in paragraph 23 above.[25]
[25]PCB 13-14 and 17-18 and Transcript 9
38 In his second affidavit, the plaintiff said that his lower back injury prevents him from working. He has no transferable skills, and cannot see himself getting back to work.
39 Under cross-examination, the plaintiff said that he has not taken any steps to investigate alternative employment, believing that the nature and extent of his lower back injury will prevent him from obtaining employment for which he is qualified by education, training and experience.[26] He said he has limited computer skills. He described his reading and writing skills as poor. He can write better than he can read.[27] Under re-examination, he said he might be able to work, but he would be unreliable. He might be able to attend for one day, but might not be able to attend the next.[28]
[26]Transcript
[27]Transcript 26
[28]Transcript 26
Findings
40 I will firstly turn to the plaintiff’s evidence. The plaintiff gave his evidence in a very straightforward and uncomplicated manner. My strong impression is that he was doing his best to give a good account of himself and to answer the questions put to him directly and truthfully.
41 I have carefully read the plaintiff’s affidavits and compared what he said in those affidavits with his oral evidence, and the histories he gave to examining medical practitioners. My strong impression is that he has given a consistent account of the injury and its pain and suffering consequences and loss of earning capacity consequences. That fortifies me in accepting that the plaintiff is a creditworthy and reliable witness.
42 Therefore, I have little hesitation in accepting the plaintiff’s evidence, which I have summarised in paragraphs 37 top 39 above.
43 I will now turn to the medical evidence. I do not accept the opinion of Dr Ho, because it is seriously out of keeping with all the other medical evidence. He expressed the opinion that the plaintiff has recovered from his injury. Dr Mitchell, Mr D’Urso, Mr Wilde, Dr Sutcliffe, Mr Nye and Mr Dooley disagree. They found that the plaintiff has suffered an injury to his lower back. The more recent opinions of Mr Wilde, Dr Sutcliffe and Mr Dooley point to the plaintiff having an organic basis to support his complaints of persisting pain and disablement.
44 Dr Mitchell, Mr D’Urso, Mr Wilde and Dr Sutcliffe expressed the opinion that the plaintiff suffered a disc injury at L5-6. Dr Mitchell and Mr D’Urso described the source of the pain arising from the L5-6 disc. Mr Wilde and Dr Sutcliffe described the source of the plaintiff’s pain arising from the lumbosacral disc, which I infer means that they accept that the relevant level is L5-6.
45 The foregoing persuasively points to the plaintiff having an injury to the lumbosacral disc as the source of his pain. However, the critical examination of the medical evidence relied upon by the defendant demonstrates a very different view.
46 Mr Nye was obviously at a disadvantage which he made clear in his first two medical reports; however, he considered that the abnormality in the plaintiff’s lower spine was at L4-5 when it would appear that it is at L5-6.
47 Mr Dooley did not refer to the level of the plaintiff’s lumbosacral spine in any of his reports. He appears to have been at a serious disadvantage, like Mr Nye. When he first examined the plaintiff, he had a plain x-ray and an MRI scan. He considered that the plain x-ray showed lumbarisation of the first sacral segment, and that the MRI scan showed mild degenerative changes at the lumbar spine. He did not identify that the plaintiff had an additional level in his spine, being at L5-6, although he later described the plaintiff has having mild degenerative disease of the lower lumbar spine. I am not confident that his reports disclose an identification of an L5-6 level.
48 Therefore, I do not accept the opinion of Mr Dooley, because all I can make of his reports is that he did not identify the L5-6 level. That may be because he was not provided with the relevant radiology and other investigations that other medical practitioners had been provided. Furthermore, in his first report, he was of the opinion that the plaintiff had suffered aggravation of an underlying degenerative disease, and in his second report, he altered his opinion to describe the injury as soft tissue. The two are very different pathological processes.
49 The fact that Mr Dooley did not identify the disc injury identified by Dr Mitchell, Mr D’Urso, Mr Wilde and Dr Sutcliffe is very likely to be the reason why he considered that the plaintiff had a rather more modest injury and could return to work in all the occupations he referred to in his later reports. I think as a matter of logic and reason, a disc injury is more serious and sinister that an aggravation of underlying degenerative disease or a soft-tissue injury.
50 The aggregate of the opinions of Dr Wilk, Dr Mitchell, Mr D’Urso and Dr Sutcliffe are based upon identifiable pathology in the plaintiff’s lower back. Mr Wilde identified the same pathology, but considered that the plaintiff was suffering from a psychological condition which was contributing to the consequences of his lower back injury. Mr Dooley was of a similar opinion to Mr Wilde, that the plaintiff was suffering from a psychological condition which was also contributing to the consequences of his lower back injury.
51 To the extent that the opinions of Mr Wilde and Mr Dooley requires the plaintiff to undertake the so-called disentangling, it appears to me that the disentangling has been undertaken by Dr Wilk, who provided a medical certificate dated 30 October 2013 certifying the plaintiff is unfit for any employment by reason of lower back pain probably caused by a lumbar disc disruption. It would appear that Dr Wilk has treated the plaintiff for a considerable period of time, and I infer he is in a very good position to make an assessment of the causes of the plaintiff’s pain and disablement. He is not prescribing the plaintiff any anti-depressants or similar medication to control any psychological/psychiatric condition, which I think is significant.
52 In any event, the other medical practitioners who found that the plaintiff has an identifiable pathological basis for a diagnosis of a physical injury do not share the opinions of Mr Wilde and Mr Dooley that there is a psychological condition present of the magnitude described.
53 In conclusion, I accept that the plaintiff suffered a disc injury at L5-6 for which serious consideration was given that he needed surgery. The plaintiff accepted the advice of Mr D’Urso that he needed surgery; however, the insurance agent and the Medical Panel disagreed. Funding for the surgery was denied.[29]
[29]Transcript 4
54 I accept the plaintiff’s evidence that he suffers from the consequences summarised in paragraphs 37 to 39. I am fortified in accepting his evidence because of the evidence of Ms Verzaci in her affidavits sworn 14 November 2013.[30] Under cross-examination, she gave an entirely plausible account of what she has observed to be the plaintiff’s pain and disablement.
[30]PCB 18a-18c
55 I prefer the evidence of Dr Wilk, Dr Mitchell, Mr D’Urso, Mr Wilde and Dr Sutcliffe, and in particular, the evidence of Dr Sutcliffe regarding the plaintiff’s capacity to undertake suitable employment. She has the particular specialty of occupational medicine which must equip her with specialist knowledge to make a determination whether the plaintiff is a serious candidate to return to suitable employment or not. I think her opinion is very persuasive and based upon a history given by the plaintiff of his injury and its consequences, his general background, his working history and what residual capacity he has been left with.
56 The plaintiff struck me as being a modestly educated man. He has had little secondary education. He entered into the workforce at an early age, undertaking manual work. He has a modest capacity to read and write, with his writing being better than his reading. He has a modest understanding of the use of a computer.
57 I accept the critical analysis made by Mr Mighell of the descriptions of the alleged suitable employment referred to in the report of Work Able Consulting Pty Ltd dated 16 April 2010:
· The plaintiff does not have the educational background to undertake work as a vocational education teacher.[31] It requires a Bachelor’s Degree or higher qualification and five years of experience.
[31]DCB 46
· The job of supervisor-cabinetmaker[32] involves manual work which would place unacceptable stress and strain on the plaintiff’s lower back, for example marking out, cutting and shaping wood; making fittings for boats, caravans and other items, and assembling parts to form sections of furniture and completed articles, among other physical tasks.
[32]DCB 47
· The plaintiff does not have the educational background to undertake work as a sales representative. The plaintiff would need an understanding of quoting prices, credit terms and keeping financial records, but it would require him to monitor clients’ changing needs and competitor activity. It sounds to me like it requires significant marketing skills which the plaintiff does not possess, and I think would have difficulty acquiring.
· The job of sales assistant[33] requires the plaintiff to stack and display items for sale, wrap and pack goods for sale, and prepare products, such as sawn timber or other items to customers’ specifications. They are manual tasks which would place unacceptable stress and strain on the plaintiff’s lower back.
· Although forklift driving[34] is referred to, it seems to have been discounted by Mr Nye and Mr Dooley. I do not propose, therefore, to analyse it any further.
[33]DCB 48
[34]DCB 49
58 On the basis of my acceptance of the plaintiff’s evidence and a body of persuasive medical evidence, I do not accept that the plaintiff has a residual capacity for work in suitable employment. Therefore, I find that the plaintiff has suffered a serious permanent impairment of his capacity for suitable employment.
Conclusion
59 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for loss of earning capacity arising out of his employment with the defendant.
60 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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