Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188

Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188 - VSCA 2016 case summary — Zoe

[11]

[144] Having found the compensable physical injury as cited above, including the objective physical signs elicited by various medical practitioners, I consider the following evidence of the plaintiff to be consistent with those findings.

[145] The plaintiff was born in January 1969 and is forty-six years of age. He attended Swinburne Technical College up to Year 8 and left when he was fourteen years old. Thereafter, he worked in a number of physical manual jobs.

[146] During the approximate seven years he worked with the defendant, the plaintiff worked as a full-time machine operator and would drive machinery over uneven ground involving a lot of vibrations and rocking. Approximately 40 per cent of his work was labouring duties. This involved heavy lifting and twisting and turning on uneven ground and manoeuvring weights such as pumps weighing up to 50 kilograms. He also worked eight hours a day from Monday to Friday, plus two hours of overtime every day and also six hours of overtime on Saturday.

[147] Lower back pain slowly developed over a one-year period from about 2011 to 2012. He also started getting pain in the back of his right leg as far as the knee.

[148] On 29 October 2012, the plaintiff was driving over uneven ground involving a lot of rocking and movement back and forth. He developed worse lower back pain and stopped working at about 10.30am. He has not worked since that time.

[149] Treatment has consisted of visits to his general practitioner, physiotherapy and hydrotherapy. He has also had epidural injections both from his general practitioner and from his treating neurosurgeon, Mr Craig Timms.

[150] The plaintiff complains of constant low-back pain which radiates down his back into the back of his right leg as far as his knee and sometimes down to the calf. The symptoms of sciatica happen at least once a day and sometimes the pain goes into his left buttock.

[151] The lower back pain gets worse if he bends or twists or does some forceful pushing or pulling.

[152] The plaintiff has difficulty sleeping and he gets up several times at night because of lower back and right leg pain. He also takes short naps through the day because of fatigue.

[153] At the time of swearing his first affidavit on 11 June 2014, the plaintiff was seeing his general practitioner once every two weeks and taking medication such as OxyContin, Endone, Tramal and Valium to relax his back muscles. At this time, he swears that he struggles with the housework as his wife suffers from carpal tunnel syndrome. He states that he can do the vacuuming and mopping although it hurts a lot. He has to take breaks and have rests.

[154] The plaintiff complains that his back pain is worse when he is straining on the toilet.

[155] Activities such as fishing with his friends or recreation on his jet ski are curtailed. On this occasion, the plaintiff swears that a few minutes on his jet ski became too painful for his back and he had to cease.

[156] The plaintiff further swears that he wears thongs or "crocs" so that he can avoid putting on or taking off his shoes.

[157] Regular attendance at the North Melbourne Football Club home games has been reduced to once or twice a year.

[158] The plaintiff states that sexual activity hardly happens anymore:

"When it does it's really painful, so now I just don't bother."

[159] In the ultimate paragraph of his first affidavit, the plaintiff swears:

"... Because of my work injury, I feel like my life has been robbed. I feel like my livelihood has been taken away from me and I am depressed because of it. I also had to sell my investment property for financial reasons and this was really difficult to do. I feel like all the work that I have done up until now has been lost."

[160] In his second affidavit sworn 10 February 2015, the plaintiff swore that he felt that his lower back and right leg pain had become a little worse. He stated he got sciatica pain down his right leg at least once a day and sometimes it is there for most of the time.

[161] The plaintiff further swore that he no longer took Endone and now takes one to two tablets of OxyContin a week. He stated he took two tablets of Tramal most days and he takes about two to four tablets of Valium nearly every day in order to help relax his back muscles. He has also now been prescribed Pristiq once a day for depression.

[162] The plaintiff further swore that he has gone fishing "about two times" since the injury. He swore:

"... On these trips, I remember going out a couple of times on the boat. With my back pain, I found it more difficult getting in and out of the boat and with the fishing as well."

[163] Further, in the past the plaintiff used to collect his own firewood by chain sawing trees, splitting wood and chopping same with an axe. He stated he used to obtain about 4 or 5 tonne per year. He now buys about 2 tonne for the year as he is unable to perform this task.

[164] The plaintiff also swears he finds it difficult to exercise his dog, Banjo, because of his lower back pain.

[165] On balance, I find that the consequences referred to above, particularly the constant back pain, the need for ongoing medication, the loss of sleep and the severe interference with his chosen occupation, are all consistent with the diagnoses that I have found to exist above. In all the circumstances, I consider that these consequences, when judged by a comparison with other cases in the range of possible impairments or losses of a body function, are permanent, in the sense that they are likely to persist into the foreseeable future and they can fairly be described as being "more than significant or marked" and as being "at least very considerable".

[166] Several medico-legal examiners have referred to the need for the plaintiff to attend a pain management specialist to try to get his use of narcotics and other substances under control. I will deal with this aspect of the evidence more fully in the economic loss category but suffice to say that I accept that even if the plaintiff attended such pain management, the consequences would still be "serious" as described.

[14]

[167] As stated earlier, the plaintiff left school at the age of fourteen and it would appear he has had no further formal training, education or work skilling. Clinical neuropsychologist, Mr James Drury, reported to the plaintiff's solicitors on 23 January 2015 to the following effect:

"... Mr Harris demonstrates a pattern of cognitive and memory functioning which is within the Average to Low Average ranges at best, but also highlights several areas of relative weakness. He reported long-standing difficulty with aspects of language processing and numeracy, and the current assessment confirmed these weaknesses. He also demonstrated limited visuo-spatial planning and memory, and slow processing speed."

[168] On any view, the plaintiff's capacity to perform "suitable work" is severely compromised by virtue of the ongoing pain and probably his substance abuse. Several medical practitioners have commented on the need for him to attend a pain management specialist in order to ameliorate his position. It is clear that the plaintiff having been referred to pain management specialist, Dr Monagle, in late 2013, has cancelled a number of appointments for various reasons. He told Mr Drury that there had been "seven subsequent attempts to rebook the appointment". Whatever the facts, it appears that Dr Monagle has not been prepared to make another appointment. The plaintiff himself has given evidence that his own solicitor either offered or did pay for one of the aborted appointments.

[169] Further, the general practitioner has indicated his intention to refer the plaintiff to the South Eastern Alcohol and Drug Dependency Service at the conclusion of his WorkCover case. The outcome of such a referral or indeed a referral to a pain management specialist is obviously uncertain. All that I can infer is that both referrals may ameliorate the plaintiff's capacity for work to some extent.

[170] I am prepared to infer that the plaintiff's reluctance to attend a pain management clinic is probably related to his substance abuse, but overall, I am not prepared to infer that this abuse prevents him from attending such a clinic. Despite his antecedent learning difficulties, there is evidence before me that the plaintiff is capable of a wide range of alternative light duties.

[171] On the evidence before me, the plaintiff's Senior Counsel has conceded that, with respect to the need to prove the 40 per cent loss of earning capacity, it is "all or nothing", in that the plaintiff would need to prove that he is totally incapacitated for suitable work. I am unable to find that he has discharged the burden of proof in this regard at the date of hearing. His claim for leave to proceed at common law for economic loss is dismissed.

[172] I will hear the parties as to any consequential orders.

[57]

33 In expanding on this point, we should first explain our understanding of senior counsel's concession relating to total incapacity. The matter arose in the following way. It was common ground that the applicant's pre-injury earnings were in the order of $69,000 per annum.[36] The weekly equivalent is about $1,327 per week. Sixty per cent of that figure is approximately $800 per week (or $41,600 per annum). The defendant's counsel asserted that Mr Harris could earn $800 per week (or more) 'if he had undergone the pain management, and if he had exercised his residual capacity'.[37] He said that there were 'jobs set out in the Nabenet report which are well in excess of that'.[38] Nabenet was an organisation that provided vocational assessment services. It had been involved in seeking to identify jobs that Mr Harris might be able to do. The evidence included two Nabenet Vocational Assessment Reports, dated 16 August 2014 and 13 October 2014 respectively. In the report of 16 August 2014, five job descriptions, characterised as 'Identified Suitable Employment Options', were listed. In order of priority, they were: 1. Light Assembler; 2. Light Packer; 3. Quality Controller; 4. Machinery Operator; and 5. Forklift Driver. An 'Expected Wage' was given for each Identified Suitable Employment Option. They were, in turn, Light Assembler $800 per week, Light Packer $800 per week, Quality Controller $950 per week, Machinery Operator $1,500 per week and Forklift Driver $985 per week. In the report dated 13 October 2014, five job descriptions, characterised as 'employment options', were listed. In order of priority, they were: 1. Despatch Officer; 2. Warehouse Clerk; 3. Purchasing and Supply Clerk; 4. Dog Trainer/Animal Attendant; and 5. Safety Officer. No wage rates were specified for these latter 'options'. Hence it may confidently be assumed that counsel for the respondent was referring to the first Nabenet report in asserting that there were jobs which carried wages well in excess of $800 per week. None of the ten 'employment options' which, in total, were referred to in the two Nabenet reports was indicated to be a part-time position. Some additional kinds of jobs (without wage rates) were floated as possibilities by one of the medical practitioners referred to by the respondent, Dr Troy,[39] but it seems that none of those was a part-time job either. Indeed, it seems that there was little or no evidence directed towards establishing that Mr Harris would be able to work in some nominated position for limited hours (only).[40] It was in these circumstances that the judge put to senior counsel for Mr Harris that senior counsel was 'stuck with total incapacity for suitable work'. Senior counsel agreed. Indeed, he noted that he had already conceded this.[41] The prior exchange to which senior counsel was referring indicates that what he had had in mind was total incapacity for 'suitable employment', as defined in the Act.[42] Thus, in practical terms, the effect of the concession was that Mr Harris accepted that he needed to persuade the court that none of the jobs that had been suggested (all being full-time jobs), nor any other full-time jobs that might be suggested, amounted to, or would amount to, 'suitable employment' for him. We make no comment on the wisdom or appropriateness of the concession. We note, again, that senior counsel who appeared for Mr Harris before us (who had not appeared below) did not seek to resile from his predecessor's concession or otherwise to make any point about the concession. Accordingly, we accept the submission made by senior counsel for the respondent that the concession forms part of the framework of the issues that were before the County Court judge for determination.

[117]

[59] We have used the expression 'be able to do' (as distinct from, say, 'be able to get') advisedly. During the oral hearing, the Court raised with senior counsel for the respondent (at Transcript 52-53) whether 'employability' was relevant, having regard to what was said in Barwon Spinners, especially at [2005] VSCA 33; (2005) 14 VR 622, 652 [74]. Senior counsel's response, in substance, was that the test was one of physical capacity, not employability: Transcript 53. In his reply, senior counsel for the applicant mentioned 'employability' in passing (Transcript 59), but did not develop an argument against, or otherwise take issue with, the respondent's position in that respect. Since the hearing, this Court (Ashley and Kaye JJA, Osborn JA agreeing) has decided Richter v Driscoll [2016] VSCA 142. That case related to a claim for statutory benefits under the Act in respect of a worker said to have 'no current work capacity' (as defined), a statutory concept that involved the same definition of 'suitable employment' as applied in the present case. In Richter v Driscoll, at [106], their Honours held that the definition of 'suitable employment' was such that the medical panel dealing with the matter in that case was 'required to consider whether the entirety of the applicant's relevant personal circumstances - that is, her injury-caused incapacity and other relevant personal circumstances which we have discussed - meant that she would likely be unsuccessful in obtaining employment because she had nothing "merchantable" to sell'. Further, there are indications in Richter v Driscoll, especially at [80], that their Honours did not consider that Barwon Spinners required that a different approach be taken to the question of 'suitable employment' in serious injury applications. However, for the avoidance of doubt, we confirm that, in the present case, in fairness to the respondent, we have assumed the correctness of the position advanced by the respondent (and not squarely contradicted by the applicant), namely that the test is one of physical capacity, not employability, in serious injury applications. However, the outcome would be the same in the matter before us regardless of the proper approach to be taken to the questions of statutory construction involved. Accordingly, it has not been necessary for us to form any view for ourselves on those questions, and we have not done so.

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