Zhang v Victorian WorkCover Authority
[2016] VCC 770
•15 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03168
| LIN ZHANG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May and 1 June 2016 | |
DATE OF JUDGMENT: | 15 June 2016 | |
CASE MAY BE CITED AS: | Zhang v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 770 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious Injury – injury to the left foot – injury to the lumbar spine – general hand – assembly of truck bodies – fell from mobile trolley – pain and suffering – loss of earning capacity – L2 compression fracture – insertion of plate and screws
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barlow v Hollis [2000] VSCA 26; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Acir v Frosster [2009] VSC 454; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted in respect to pain and suffering and loss of earning capacity damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Paul Elliot QC Mr Lachlan Allan | Henry Carus and Associates |
| For the Defendant | Mr Richard Stanley | Thomson Geer |
HER HONOUR:
Preliminary
1 The plaintiff was employed by the defendant as a general hand, assisting in the assembly of truck bodies. On 4 October 2012, he was required to clean some lights on a wall in the painting room. He stood on a mobile trolley, and was about 3 metres off the ground. In performing this task, he fell from the side of the trolley, and landed on his feet. (“the accident’) In this accident he suffered injuries to his left foot and lower back.
2This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) and the plaintiff seeks leave to claim damages for both pain and suffering and loss of earning capacity.
3Mr P Elliot QC and Mr L Allan of counsel appeared for the plaintiff and Mr R Stanley of counsel appeared for the defendant.
4The plaintiff claims two serious injuries arising from the accident. The first injury is a fracture to the left calcaneus, resulting in impairment to his left foot. The second injury is a compression fracture of the L2 vertebra, resulting in impairment to his spine. It is necessary for me to consider each injury and its consequences separately. I cannot aggregate the impairments for the purpose of determining if the plaintiff suffers one, or both serious injuries.
5The plaintiff was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions referred to in this Judgment.[1]
Background
[1]See Barlow v Hollis [2000] VSCA 26 per Chernov J at [14]-[16], and the “pathway of reasoning” per Ashley JA in Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 at [38]
6The plaintiff was born in China and is 56 years of age. He is recently widowed, following the death of his second wife in April 2015. He had one child with his first wife, but they divorced soon after she arrived in Australia in 2007.
7The plaintiff completed primary school and high school in China. He then undertook a five and a half year course in management engineering. After that, he worked in a pharmaceutical factory as a production manager for approximately two years.
8The plaintiff moved to Australia in 1989. Upon arrival, he undertook a short English course, before obtaining his first job, in a packaging factory in Sydney. For the next four years, the plaintiff worked in numerous jobs in Sydney, including as a cleaner, a kitchen hand, and in a furniture factory. From 1996 until 2000, he worked in a toy warehouse undertaking packing duties. In about 1999, after the plaintiff had been in Australia for 10 years, he completed an English course at Swinburne University.
9In approximately 2000, the plaintiff was charged with drug trafficking. He was initially on remand for seven months. He was then placed on bail, during which time he obtained employment making timber blinds. He was ultimately convicted of the offence and sentenced to four and a half years’ imprisonment. He served 11 months in jail, before his release in 2005.[2]
[2]Plaintiff’s Court Book (“PCB”) 2
10In approximately May 2005, the plaintiff obtained employment with Prestige Truck Bodies. He worked there until approximately August 2012, at which time he resigned and commenced employment in a similar position with the defendant.
11Prior to suffering injuries the subject of this claim, the plaintiff enjoyed travelling with his wife, and would go bowling with his friends and family. He had also previously enjoyed go-karting, and playing snooker and table tennis.
Injury and its consequences
12The plaintiff commenced employment with the defendant in or about 13 August 2012. He was employed as a general hand and worked 38 hours a week, with an average of five hours overtime each week.
13The day before the accident, the plaintiff had resigned his employment because he was not enjoying the job.[3] He also felt that he was being paid less than with his former employer.[4]
[3]PCB 2
[4]Transcript (“T”) 30, Line(s) L25-31, T31, L1
14The plaintiff was standing on a mobile trolley to clean wall lights, when he fell and suffered his injuries. He landed on his feet and experienced immediate sharp pain in his left foot and lower back.[5] He was taken by a co-worker to the Frankston Hospital.
[5]PCB 3
15The plaintiff was subsequently transferred to the Alfred Hospital for specialised treatment. He was advised that he had suffered a fracture in his left foot, together with an L2 compression fracture in his lower spine.
16The plaintiff underwent surgery to his left foot on 7 October 2012, which involved the insertion of a plate and screws.
17As there was a problem with the placement of one of the screws, further surgery was performed a few days later.
18After approximately one week in hospital, the plaintiff was transferred to undergo rehabilitation at the Epworth Hospital in Camberwell. He attended there for approximately four weeks. He was given a back brace and advised not to mobilise. He said that he used a wheelchair for a month or two, and then had a cam-boot on his foot for a few months.[6]
[6]PCB 3
19The plaintiff obtained some physiotherapy treatment in early 2013. At that time, he also consulted his general practitioner, Dr Jing Pan.
20The plaintiff returned to work on light duties, working one day a week for two hours in March 2013. He performed tasks such as sorting nuts and bolts, and did some cleaning and sweeping work. He then increased this to two days a week, for three hours each day.
21The plaintiff’s left foot injury was intermittently reviewed at the Alfred Hospital. In May 2013, it was noted that he could walk approximately 2 kilometres, but that he reported pain in the hind foot after this activity.[7]
[7]PCB 29
22On 5 June 2013, the plaintiff re-attended the Alfred Hospital and was reviewed by neurosurgeon, Mr Patrick Chan, in relation to his lower back injury. At this time, the plaintiff was reassured that the healing process would take time[8] and that he should continue to increase his hours in his attempt to return to work.[9]
[8]PCB 4
[9]PCB 21
23In July 2013, the plaintiff’s wife was diagnosed with bowel cancer. At her doctor’s suggestion,[10] on 4 September 2013, the plaintiff ceased work to care for his wife. [11] At this time, the plaintiff was working three hours, two days a week.[12] The plaintiff said he was struggling with his work duties. He gave the example of drilling a hole, which required him to exert force, causing pain to both his left foot and lower back.[13]
[10]T47, L2-5
[11]PCB 26
[12]Defendant’s Court Book (“DCB”) 17N and T 39, L 14-25
[13]T93, L13-31, T94, L1-7
24Prior to ceasing work, the plaintiff’s return to work officer was encouraging him to increase his hours in the coming months. He suggested four hours, five days a week, increasing to five hours, five days a week by the middle of October 2013. While Dr Pan agreed to this proposal, the plaintiff did not.[14]
[14]DCB 17,T3 and T42, L20-31, T43, L1-11
25On 19 September 2013, the plaintiff re-attended the Alfred Hospital and, on this occasion, consulted Dr Hamish Curry. At this appointment, Dr Curry recommended the removal of the plate from the plaintiff’s foot.
26The plaintiff returned to the Alfred Hospital on 13 February 2014. While it was again recommended that he have the plate in his foot removed, the plaintiff indicated that he did not wish to undergo the procedure, as he was caring for his wife. In his viva voce evidence, he also said that he was concerned about who would care for him in his recovery period.[15]
[15]T50, L18-23
27The plaintiff ceased attending Dr Pan in September 2013. He denied that he stopped seeing her because she was encouraging him to increase his hours at work.[16]
[16]T47, L11-16
28From March 2014, the plaintiff attended upon general practitioner, Dr Ronald Ling.
29The plaintiff cared for his wife until she passed away in April 2015. He said that after a few months he then contemplated a return to work and made some job applications by telephone.[17] In about September 2015, he was referred by Centrelink to the Bridge Program,[18] under which he is required to submit at least 10 job searches per month and undertake either work or retraining of 15 hours per week. As part of this program, the plaintiff also commenced an English and computer skills course with Skills Plus, which he is currently undertaking in Springvale for approximately three hours, two days per week.[19] He said that during this course, he required breaks for approximately 30 to 40 minutes to lie down on a bed in a rest area, and after such a break, he felt able to return to the course.[20]
[17]T59, L28-31, T60, L1-7
[18]PCB 89-95
[19]PCB 10 and T56, L25-29
[20]PCB 10
30The plaintiff has applied for many jobs, including ones he has seen advertised in the Chinese newspaper.[21] The plaintiff estimated that he has applied for about 100 jobs, and been offered one, as a packer. The offer was withdrawn the following day, however, as the prospective employer did not consider that he would be reliable without a motorcar.[22]
[21]PCB 11 and T58, L18-22, T61, L8-14
[22]PCB 11
31In cross-examination, the plaintiff was asked if this job was full-time or part-time, and he said he did not know.[23] However, in circumstances where the Bridge Program helped prepare the plaintiff’s resume; stating that he was looking for part-time work, and subsequently arranged the job for him, I consider it probable that it was a part-time position.
[23]T61, L12-20
32The plaintiff also approached a friend who owns a business supplying glass for construction sites. However, his friend was not prepared to employ him, as he could not trust him carrying the smaller packages of glass.[24]
[24]PCB 11
33The plaintiff takes some pain medication for his left foot and lower back pain, but generally tries to avoid it as, when he was raised in China, he was discouraged from taking medication.[25] Further, the plaintiff stated that he does not like the effect it has on him, and believes that it only temporarily masks any condition he has.[26]
[25]PCB 4
[26]PCB 9
34The plaintiff said that as a consequence of his left foot and lower back pain, there are many recreational activities he is no longer able to enjoy, including playing pool, bowling and table tennis.[27]
[27]PCB 6
35The plaintiff also suffers pain in his right ankle. An x-ray taken in September 2015 showed early degenerative changes.[28] The plaintiff said that the right ankle troubles him on an ongoing basis, but is not as bad as the left ankle.[29]
[28]PCB 46
[29]T52, L9-12, T54, L25-27
36At the end of the plaintiff’s re-examination, I asked him when this right ankle pain had first occurred. He said that it was a couple of months before the accident.[30] Mr O’Brien had taken a history that it came two or three months after his accident.[31] Whether the right ankle pain existed before or after the accident, the plaintiff said it became “worse, much worse”[32] after the accident. Dr Ling refers to the right ankle pain in his report, in the context of overcompensation for the left foot injury.[33]
[30]T104, L7
[31]PCB 32
[32]T104, L16-18
[33]PCB 28a
37The plaintiff also suffers a reactive anxiety depression, which Dr Ling related to his wife’s terminal illness, as well as the plaintiff’s work related injuries and chronic pain.[34] The plaintiff’s anxiety condition is associated with feelings of hopelessness, as well as obsessive thoughts and paranoia.[35] The plaintiff agreed his physical injuries have caused him to lose confidence and this has impacted upon his job seeking efforts.[36]
[34]PCB 28b
[35]PCB 28b
[36]T102, L22-24
38Dr Ling has prescribed the plaintiff antidepressant, Aropax,[37] which the plaintiff takes intermittently.[38]
Medical evidence
[37]PCB 28b
[38]PCB 9
39The plaintiff was treated conservatively in relation to his lower back injury at the Alfred Hospital. He has had two surgical procedures performed on his left foot, both undertaken at the Alfred Hospital a short time after the accident. He has not proceeded to have the plate surgically removed.
40In cross-examination, the plaintiff said that he had been told by the doctors at the hospital that it was his choice to have the plate removed, and that he was not told it would result in a reduction in his pain levels.[39]
[39]T51, L19-28
41The plaintiff was initially managed by general practitioner, Dr Pan. The plaintiff transferred his care to Dr Ronald Ling in March 2014. The plaintiff has continued to consult Dr Ling since this time, and consults him a few times each month. At some of the consultations, Dr Ling performs manipulation on the plaintiff’s left foot and back, which offers him some pain relief.[40] He has also prescribed Mobic, Panadeine Forte and Lyrica for pain relief.[41]
[40]PCB 8
[41]PCB 28a
42Dr Ling is of the opinion that the plaintiff currently has a capacity to work three days, four hours per day, with five minutes of rest as required.[42] In his report of November 2015, he stated that the restrictions on his work include: no prolonged standing/walking; no climbing, pulling or pushing; and no lifting of more than 3 kilograms. In providing this opinion, Dr Ling does not distinguish between the restrictions imposed by the left foot injury, and those imposed by the lower back injury.
[42]PCB 28b
43Dr Ling is of the opinion that the plaintiff is unable to undertake labour or manual work and that his limited English and computer skills will make it hard to train and employ him. He considers the plaintiff’s prognosis is poor to fair, due to the chronic pain in both his left foot and lower back.[43]
[43]PCB 28b
44The plaintiff’s solicitors arranged for him to be examined by orthopaedic surgeon, Mr John O’Brien, on three occasions. The first examination was in May 2014.[44] Mr O’Brien obtained a history of the accident, the injuries suffered and the treatment provided. He also obtained a history of the right ankle pain.
[44]PCB 31-36
45Mr O’Brien asked the plaintiff to rate his pain on a scale of 0 to 10. He noted that the plaintiff described his left foot pain as being 8 out of 10, his right ankle pain as being on the same scale, and his lower back pain as being 6 out of 10 and fluctuating in severity. He noted that the plaintiff’s lower back pain improved when he lay down.
46Mr O’Brien was of the opinion that the left calcaneal fracture had united with good alignment. He noted post-traumatic arthritis of the subtalar joint. Mr O’Brien agreed with the recommendation that the plate be surgically removed.
47In relation to the plaintiff’s lower back injury, Mr O’Brien noted restriction of lumbar movement without any signs of radiculopathy.
48Mr O’Brien re-examined the plaintiff in September 2015.[45] He noted that the plaintiff complained of constant pain on both sides of his left heel. With rest, the pain was mild. However, when the plaintiff was weight-bearing, his left foot pain was significantly aggravated and he rated it as being 6-7 out of 10. Mr O’Brien commented that removal of the plate may improve the heel pain which the plaintiff experienced when wearing shoes. However Mr O’Brien was of the opinion that such surgery would not totally resolve his ongoing symptoms, which he believed predominantly related to the post-traumatic arthritis in the subtalar joint.
[45]PCB 37-43
49Mr O’Brien also recorded that the plaintiff experienced constant pain in his right ankle, which was aggravated by walking.
50Mr O’Brien examined the plaintiff’s lower back and noted that his lumbar flexion was limited to 40 degrees, accompanied by the complaint of low back pain with some 15 degrees of extension and 20 degrees of lateral flexion.[46] Mr O’Brien noted that the plaintiff’s ongoing intermittent lower back pain was aggravated by prolonged sitting, as well as bending and lifting.
[46]PCB 45-46
51In his final report, dated February 2016, Mr O’Brien again referred to the left foot and lower back injuries, as well as the complaints of right ankle pain.[47] In relation to the plaintiff’s left foot pain, Mr O’Brien recorded that the plaintiff described his pain as being 5 out of 10. He said that such pain was significantly aggravated by standing and walking and that after weight-bearing, the severity of pain would reach 8-9 out of 10. The plaintiff did not complain of any significant night pain, but said that when he got out of bed in the morning he would experience severe pain in his left foot. Mr O’Brien considered that there was continuing evidence of post-traumatic arthritis, which was the underlying cause of the left foot pain.
[47]PCB 44-47
52In relation to the right ankle pain, Mr O’Brien noted this was a constant pain, aggravated by weight-bearing. He further noted that an x-ray of the ankle taken in September 2015 demonstrated early degenerative change in the ankle joint.
53In relation to the plaintiff’s lower back pain, Mr O’Brien noted that it was intermittent and was precipitated by prolonged sitting.
54In his conclusion, Mr O’Brien was of the opinion that the plaintiff’s limited weight-bearing function rendered him incapable of returning to his pre-injury duties and incapable of undertaking employment involving manual-type duties. He stated that the aggravation of symptoms by weight-bearing and sitting made it unlikely that suitable employment, accommodating such restrictions, could be found.
55The plaintiff’s solicitors also arranged for the plaintiff to be examined by occupational physician, Dr Amanda Sillcock, in April 2016.[48] Dr Sillcock obtained a history of the accident, the injuries suffered and the treatment provided. She did not obtain any history of the right ankle pain, although she referred to the x-ray of the right ankle in September 2015.
[48]PCB 49-61
56Dr Sillcock ultimately concluded that the plaintiff’s capacity for work has been adversely affected, in that he is unable to perform work which requires prolonged standing or walking, and is limited in regards to work which requires bending and lifting. She was of the opinion that the plaintiff is not fit to do the semi-skilled labouring-type work he has always undertaken.
57The plaintiff also relied upon a report from recruitment specialist, Marlene Tyquin.[49] In her report dated May 2016, she summarised the medical material relating to the plaintiff, and ultimately concluded that the plaintiff will have difficulty in sufficiently performing alternative employment given the above-mentioned medical restrictions.
[49]PCB 62-75
58The defendant arranged for the plaintiff to be examined by orthopaedic surgeon, Mr Clive Jones, in April 2016.[50] Mr Jones also obtained a history of the accident, the injuries suffered and the treatment provided. He made no reference in his report to the right ankle pain.
[50]DCB 1-5
59Mr Jones was of the opinion that the plaintiff continued to suffer symptoms as a consequence of the left heel fracture and the compression fracture of the lumbar vertebrae. He considered it likely that the plaintiff’s symptoms will be ongoing.
60In relation to the impact the injuries have upon the plaintiff’s capacity for work, Mr O’Brien stated that the foot injury prevents the plaintiff from walking over rough ground, standing for long periods and climbing stairs and ladders. In relation to his back injury, he is of the opinion that it prevents him handling weights in excess of 5 kilograms or undertaking repeated bending or lifting. He ultimately concludes that the plaintiff is capable of light part-time work, and specifically states that the plaintiff would be capable of doing some sorting activities, provided the restrictions detailed above were adhered to.[51]
[51]DCB 5
61The defendant’s solicitors also arranged for the plaintiff to be examined by occupational physician, Mr Dominic Yong, in May 2016.[52] Dr Yong obtained a history of equal pain in both feet, and noted that the plaintiff also experienced discomfort in his back if he sits for too long. He obtained an occupational history from the plaintiff, and ultimately concluded that the plaintiff has a current capacity to perform tasks, with the following restrictions:
·avoid repeated bending and twisting of the back;
·avoid repeated pushing or pulling;
·avoid lifting more than 5 kilograms on a repeated basis;
·avoid repeated climbing duties;
·avoid prolonged walking or standing tasks;
·avoid repeated squatting or kneeling tasks.[53]
[52]DCB 6-17
[53]DCB 15
62Dr Yong was of the opinion that the plaintiff would initially require a reduction in working hours, as he attempted a graduated return to work. He believed the plaintiff could undertake a job involving sorting nuts, washers and bolts whilst in a seated position and whilst handling minimal weights.[54] He thought that other jobs would be possible, but that they would require an individual assessment to ensure compliance with the restrictions detailed above.
[54]DCB 16
63The defendant also obtained a report from vocational assessor, Nicholas Janides, from Healthework in May 2016.[55] Mr Janides did not examine or interview the plaintiff and was only provided with two medical reports from 2013. He proposed two possible jobs for the plaintiff; an assembler of small components or a sunglass cleaner/product inspector. He stated that these jobs required the ability to frequently sit, stand and walk to the stock room to pick out parts. He also detailed the average earnings associated with such work.
[55]DCB 18-26
Credibility
64The defendant relied upon video surveillance taken of the plaintiff on 16 and 17 May 2016.[56] Mr Stanley said this footage was inconsistent with what the plaintiff had claimed in his evidence, and with what he had told the doctors.
[56]Exhibit 2 – “Surveillance footage of the plaintiff taken on 16 and 17 May 2016”
65In the initial footage, the plaintiff bent forward to obtain radiological films from the boot of his car. The plaintiff conceded that this was further than he had been able to bend when examined by numerous medico-legal doctors.[57] However, he explained that he does not do this often,[58] and that it was necessary for him to get the films from the car.
[57]T75, L19-21
[58]T75, L22-26
66The footage then shows the plaintiff walking into a medical clinic. He walks at a relatively slow pace.
67The following day the plaintiff is seen at his local supermarket, carrying a shopping basket, which he fills with numerous items. He is then seen carrying some plastic shopping bags to a car. During this shopping trip he is seen walking for about 10 minutes at a normal pace.
68I do not regard the video surveillance as substantially impacting upon the plaintiff’s credit. While he does bend forward further than he demonstrated in the medical examinations, it was only for a short period of time.
Permanent
69In order to satisfy the definition of serious injury, the plaintiff must prove that the injury and its consequences are both serious and permanent. The authorities have defined the latter to mean “likely to last for the foreseeable future”.[59]
[59]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34]
70I am satisfied that the plaintiff’s left foot injury and the consequences which flow are permanent. It has been recommended to the plaintiff that he have the internal plate surgically removed from his left foot. He has not committed to undertake such surgery.
71Mr O’Brien felt that the removal of the plate may assist in the pain which the plaintiff experiences when wearing shoes, but otherwise felt that the surgery would not result in a resolution of the symptoms related to post-traumatic arthritis in the subtalar joint. Mr Jones made no comment in relation to the need for such surgery, and considered that the plaintiff’s condition is stable. I also note that the insurer accepted and determined the plaintiff’s claim for lump-sum compensation under s98C of the Act, and I consider this an indication of its acceptance that the plaintiff’s left foot impairment is permanent.
72In relation to the plaintiff’s lower back injury, I am also satisfied that this injury and the consequences which flow are permanent. There is no surgical treatment recommended, and the doctors all accept the lower back injury is stable.
73Having thus accepted that both injuries are permanent, I must now consider whether the plaintiff’s injuries result in one or more serious injuries.
Loss of earning capacity
74To succeed in his application, the plaintiff has the onus of satisfying me that as at the date of hearing, that as a consequence of either his left foot or lower back injury, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In assessing this, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
75The definition of suitable employment is an objective test which looks at the plaintiff’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether or not the work is a reasonable distance from the plaintiff’s place of residence.[60]
[60]Barwon Spinners Pty Ltd & Ors v Podolak at [25] and [28]
76In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
(a) the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b) the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.[61]
[61]s134AB(38)(f)
77 In the three financial years before the accident, the plaintiff worked full-time with Prestige Truck Bodies and earned the following gross annual income:
·Financial year ending 30 June 2010: $44,913
·Financial year ending 30 June 2011: $37,350
·Financial year ending 30 June 2012: $37,039
78 The plaintiff commenced with the defendant in August 2012, approximately seven weeks before the accident. In that period, the plaintiff earned on average $819 per week, including five hours of overtime. This equated to a projected gross annual income of $42,588.
79The plaintiff said he resigned his employment the day before the accident, in part because he was not being paid as well as he had been in his previous employment. It is difficult to reconcile this with the income he had earned in the previous two years. However, for the purpose of assessing the plaintiff’s claim for loss of earning capacity, I consider the figure that most fairly reflects the plaintiff’s pre-injury earning capacity, to be the amount he was earning at the time of his injury, that being $819 per week.
80 Applying the statutory test, I must be satisfied the plaintiff is incapable of earning no more than $491.40 per week, and that such a restriction on his earning capacity will be permanent.
81Relevant to the plaintiff’s loss of earning capacity, both in relation to his left foot injury and lower back injury, is his limited English language skills. The plaintiff has previously undertaken two English language courses, and is currently undertaking another. He agreed that his English is improving.[62] Although he used an interpreter to give evidence, he was, at times able to give short answers in English, and for at least two examinations arranged for the purpose of this case, he attended the appointment without an interpreter. The plaintiff agreed that in his previous workplaces he was able to cope with his limited English language skills, as the other co-workers or employer had been Chinese.
[62]T57, L19
82 I accept that the plaintiff’s English is sufficient to enable him to work in an environment in which he is required to follow basic instructions. However, I do not consider it realistic that the plaintiff’s current course in English and computer skills, will provide him with sufficient skills to enable him to obtain employment in any office, clerical or managerial positions. Further, such jobs are inconsistent with his prior experience in Australia.
83 Therefore, in assessing the plaintiff’s claim for loss of earning capacity, I will have regard to manual and process work, consistent with work the plaintiff has previously undertaken in Australia, and consistent with his language skills.
Loss of earning capacity in respect of the plaintiff’s left foot injury
84The plaintiff has consistently complained about left foot pain, after prolonged standing or walking.
85The doctors accept that the plaintiff cannot return to his pre-injury duties. Mr Jones was the clearest in delineating which restrictions related to his left foot injury. He stated that the plaintiff should avoid walking over rough ground, standing for long periods, and stair and ladder climbing.
86Mr O’Brien also stated that the plaintiff’s limited weight-bearing function, made him incapable of returning to pre-injury work, and incapable of undertaking employment involving manual type duties.
87Dr Ling has certified him as being able to work up to 12 hours per week, provided he is given the opportunity to have a five minute break every hour. Mr Jones is of the opinion that the plaintiff is capable of light, part-time employment, but does not state the number of hours. Mr O’Brien did not express an opinion as to how many hours the plaintiff could undertake light duties, and instead commented that from a practical perspective he believed the plaintiff will be excluded from returning to the workforce.
88I accept that the plaintiff ceased work in September 2013, in order to care for his wife. However, I also accept his evidence, that at that time he was having increasing difficulties at work. The maximum number of hours he could have worked, before reaching his maximum capacity, is untested.
89In giving his evidence, the plaintiff remained hopeful as to the work he may be able to do, including the number of hours. In cross-examination, the plaintiff was asked if he felt confident in applying for new jobs because he knew that he could do the duties. He stated that he simply wanted to “have a try”.[63]
[63]T62, L1-2
90Notwithstanding his optimism, I must determine the plaintiff’s realistic capacity for suitable employment. Dr Ling stated that the plaintiff could work 12 hours per week, with a break of five minutes every hour as required. I am satisfied this restriction, is a result of his left foot injury, as Dr Ling refers to this in the context of no prolonged standing or walking and no climbing.
91I accept the plaintiff’s complaints of increased left foot pain with prolonged standing and walking. Given these difficulties, I consider that for him to be a reliable employee, he could not work beyond 12 hours per week. In reaching this conclusion, I am mindful of the difficulties the plaintiff experienced in his left foot prior to ceasing work in September 2013, at which time he was only working six hours per week. I also consider that the difficulties he is now having at his English and computer skills course, demonstrate his reduced capacity to work for any more than 12 hours per week.
92I am satisfied suitable employment for the plaintiff, as a consequence of his left foot injury, is light assembly work, where he is able to avoid prolonged standing.
93Considering the full-time earnings referred to in the report of Mr Janides, if the plaintiff is only able to work 12 hours per week, then in such suitable employment, the plaintiff will suffer the requisite 40 percent loss of earning capacity as a consequence of his left foot injury. I am satisfied this loss will be permanent.
94Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the ‘very considerable’ test.[64] Given my acceptance that the plaintiff’s left foot injury restricts him to only part-time work, the pecuniary disadvantage to him is so great, that I consider his loss of earning capacity can be described as very considerable.
[64]s134AB(38)(c)
95 In reaching this conclusion, I have disregarded any impairment or consequences arising from his lower back injury.[65] Further, I have disregarded any impairment arising from his right ankle injury, pursuant to the principles enunciated by Justice J Forrest in Acir v Frosster.[66]
[65]Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67
[66][2009] VSC 454
96 As the plaintiff has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his left foot injury, it is not necessary for me to consider separately his pain and suffering consequences for that injury.[67]
[67]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
Loss of earning capacity in respect of the plaintiff’s lower back injury
97 The plaintiff has a limited sitting tolerance, due to his lower back injury. Further, he is limited in the weights he can now lift. I am satisfied that he is restricted to not lifting beyond 5 kilograms, and that he should avoid repeated bending and lifting.
98 The plaintiff said that his lower back pain is only occasional, and not constant. In those circumstances, I am not satisfied that his lower back injury would prevent him from returning to suitable employment, with a restriction of lifting no more than 5 kilograms and no repeated bending or lifting. Given the plaintiff described his lower back pain as only occasional, there is insufficient evidence to satisfy me that he could not work enough hours, in such light work, to earn $491.40 per week. I am therefore not satisfied that the plaintiff’s lower back injury results in him suffering a loss of earning capacity of at least 40 per cent.
99 I will next consider whether the plaintiff suffers a serious injury in respect of his pain and suffering, arising from his lower back injury. In doing so, I will have regard to his experiences of pain and the disabling effects of pain.[68]
[68]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
100 The plaintiff’s lower back pain is not constant. He said it is precipitated by prolonged sitting, and that he is able to ease his pain by standing or changing positions. When he suffers pain, he does not describe it as severe. He does not regularly take pain medication for it, but obtains some manipulation therapy for it, from Dr Ling. He does not complain that his lower back pain interferes with his sleep.
101 There are multiple recreational activities, which the plaintiff complains he can no longer enjoy. He does not delineate which activities he is unable to do because of his lower back injury. Given that the lower back injury is aggravated by prolonged sitting, I can safely presume it is this injury which prevents him from go-karting. For the other recreational activities, it is less clear and in those circumstances I am not satisfied that the plaintiff’s lower back injury has caused a significant interference with his enjoyment of recreational activities.
102 In comparison to other cases in the range of possible impairments, I am not satisfied that the consequences to the plaintiff from his lower back injury, are more than significant and marked.
Orders
103 I am satisfied that the plaintiff suffers a serious injury to his left foot, arising as a consequence of his employment with the defendant and the consequences are such that he should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
104 I will make the consequent orders.
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