Matthews v Latrobe Regional Hospital

3 Relying on two Notices served on the plaintiff pursuant to the provisions of the WorkCover (Litigated Claims) Legal Costs Order 2016 ("the Costs Order"), the defendant submits the Court ought not certify counsels' feels and that the following orders be made:

(a) the defendant pay the plaintiff's costs of the proceeding, including any reserve costs, in accordance with the Costs Order, with such costs to be assessed by the Costs Court in default of agreement;

4 This Ruling concerns whether the plaintiff is entitled to Counsels' fees.

5 Counsel for the plaintiff and the defendant prepared written submissions[1] and addressed the Court on this issue on 27 May 2021.[2]

6 I set out various factual matters derived from the parties' Court Books, Most of these factual matters are not controversial, save for various statements made by the plaintiff in her last affidavit sworn on 10 February 2021.

7 The plaintiff is a sixty-three-year-old[3] married woman who has five children and fourteen grandchildren. She was raised in Traralgon, completing Form 4 at the Traralgon High School, after which she worked on a dairy farm and then in a shoe factory until she was married. After she got married, she and her husband moved to a dairy farm, where she milked cows nearly every day for about nineteen years. She and her husband then moved to Traralgon, where she started work doing homecare for people with disabilities for about five years. She also managed a shop for about seven years and then went to work for Ambulance Victoria for six months doing patient transport. Over that time, she has completed a Diploma in Aged Care, Disability, and first responder training.

8 On 11 August 2004, the plaintiff started work with the defendant at the Latrobe Regional Hospital in Traralgon as a hospital attendant. She was a casual employee and usually worked between 25 to 35 hours per week, although the hours could vary and some weeks she could work 70 hours and much less other weeks, depending on staff levels.

9 The plaintiff's main duties were to move patients around the hospital on trolleys and wheelchairs and later, she was given some security duties. Her latter duties required her to carry out communication advice and if she received information of a code on that, she would be required to respond to an incident. Such incidents might involve restraining or "taking down" disruptive patients or members of the public, and this was usually done by a team. There were usually a few takedowns every week in which she was involved.

10 On 12 April 2015, the plaintiff was working a 12-hour shift from 7.00am to 7.00pm. She was transporting a patient who was in a lot of pain to the x-ray department by pushing him on a trolley. As she came to a narrow doorway, the trolley veered to the left as the wheels locked up, and while attempting to stop the trolley hitting the wall to avoid further pain to the patient, the plaintiff felt severe pain in her left knee, causing her to yell out in pain.

11 The plaintiff underwent conservative treatment and then, on 11 November 2015, underwent a left knee arthroscopy and partial meniscectomy, and on 28 September 2018, the plaintiff underwent total knee replacement surgery of her left knee.

12 After the date of injury, the plaintiff was on and off work, performing alternative duties of about six to eight hours per day for three to four days per week. This work continued until 14 March 2017, when she was advised by the defendant that there were no further duties for her and she should go home.

13 In early 2019, the plaintiff returned to the workforce after she saw an advertisement in the newspaper for work at the rooms of Professor Anthony Sassé, respiratory specialist, where she started working, training to become a lung function technician. She worked one four or five-hour shift per week until the COVID-19 restrictions came into force. In her affidavit sworn on 10 February 2021 (her last affidavit), the plaintiff deposes, amongst other matters:

• She was then presently taking two Voltaren, two Panadol and two Mersynofen each day before she undertook any physical activities.
• She was undergoing hydrotherapy three times a week, which involves walking up and down the pool to try and strengthen her knee and keep it flexible.
• She weaned herself off strong medication, but when she involves herself in any type of garden work, or goes to work or looks after her grandchildren, she takes medication beforehand. She continues to suffer constant pain to her left knee, which worsens if she does too much, and finds that she needs to put her leg up during the day, every day.

14 In particular, in relation to her employment situation, the plaintiff deposed:

"I was employed by the Defendant as a casual. On occasions I worked up to five x 12 hour shifts per week. On one occasion I worked seven days straight. I was always available for an extra shift. The availability of shifts varied but it was only on the rare occasion that I would decline a shift.

I returned to work in November 2019 on a part time basis performing customer service and very basic patient testing with a respiratory physician, Professor Anthony Sassé. My role is a lung function technician. I work casually, approximately five hours per week and earn $29.00 per hour. I am able to sit and stand regularly so the job is perfect for me. However, I need to take pain relief before I go to work to manage my pain. After work when I get home, I need to put my leg up. It takes some time to relieve my symptoms after work. I also take medication when I get home to relieve my pain.

I believe I am working at my maximum capacity and I do not believe I would be able to work for much more than 5.5 hours per week."[4]

15 The defendant relied on a vocational assessment report from Recovre dated 1 September 2020.[5] In that report, an occupational therapist, Ms Janette Ash, identified three employment options that the plaintiff could perform based on her past employment history, transferable skills and medical limitations. They were employment as a security gatehouse/concierge/control room officer; employment as a telephonist and enquiry clerk (communication officer) and employment as an admissions clerk.

16 I again refer to the last affidavit of the plaintiff sworn on 10 February 2021, wherein, at paragraph 22, she deposes:

"I have been referred to the jobs identified by Recovre in the report as follows:

(a) Security office/gatehouse control- I live in Traralgon. The job is in Mulgrave. It would take me more than an hour and a half to get to this job. I do not believe that I would be able to perform the physical demands of the job. I have limited computer skills. I am able to use email, but I am not able to use Excel and Word programs. Although I have a Certificate Ill in Security Operations and Crowd Control, I obtained that in 2005, some 15 years ago and it is close to expiring. I am unable to do CPR as it requires me to get on the floor. I can only stand for short periods and walk for short distances. I do not believe I would be able to walk for 2 kilometres per patrol. I am not confident that I would be able to learn computer programs. I have only recently changed from a passbook bank account to one which has a key card. I would not be able to drive from Traralgon to Mulgrave up and back each day. I am only able to manage local trips in an automatic vehicle. If I come to Melbourne, I catch the train. I do not believe that I would be able to respond in an emergency due to my injury.

(b) Telephonist and inquiry clerk (communications officer)-the job identified in the report is in Epping. I am unable to drive long distances and I believe it would take me over two hours to drive from Traralgon to Epping. I do not believe I would be able to do this role. I am unable to sit for long periods and I am only able to stand for short periods only. I have very limited computer skills and I do not believe I would be able to perform a role which requires me to use a computer for lengthy periods of time. I can only lift very light weights. I am only able to walk for a short period of time.

(c) Admissions clerk ꟷ this role would involve me driving from Traralgon from Bendigo and home. I believe the trip takes between three and four hours each way. I am not able to drive for this long. I have limited computer skills. I do not believe I would be able to set up a full patient record."[6]

17 I set out a chronology of the pertinent dates in relation to the serious injury application:

(a) On 8 October 2020, the Victorian WorkCover Authority ("VWA") gave notice to the plaintiff of its determination pursuant to s335(2)(c) of the Workplace Injury Rehabilitation and Compensation Act 2013 ("the Act") that she had not suffered "serious injury";

(b) On 26 October 2020, the plaintiff filed an Originating Motion seeking leave of this Court to pursue a common law damages claim in respect of her left knee injury. The leave sought by the plaintiff was for "both heads" of damages available under the Act - that is, both pain and suffering and pecuniary loss damages;

(c) By Order of Judicial Registrar Gurry on 1 December 2020, the plaintiff's Originating Motion was listed in the Latrobe Valley sittings commencing 17 May 2021;

(d) On 18 February 2021, the solicitors for the VWA served on the solicitors for the plaintiff a Notice ("the first Notice") pursuant to s4, Part A, of the Costs Order. The first Notice was for the purpose of advising the plaintiff that the VWA was satisfied that she was entitled to pursue damages for pain and suffering, but that the VWA maintained its denial of her application for a serious injury certificate for pecuniary loss. On 17 March 2021, the solicitors for the VWA served a further Notice pursuant to the Costs Order ("the second Notice") in the same terms as the first Notice;

(e) The plaintiff's solicitors briefed Counsel (both Senior Counsel and Junior Counsel) on 16 April 2021;

(f) The Latrobe Valley List for 17 May 2021 sittings was called over before the Court on 7 May 2021, at which time the plaintiff's Counsel indicated to the Court that the matter was ready to proceed as listed;

(g) Shortly after the commencement of the Latrobe sittings, it was agreed between the parties and communicated to the Court that the hearing was to be listed and was to commence on Friday, 21 May 2021;

(h) On 21 May 2021, prior to the commencement of the hearing, the parties resolved the plaintiff's application on the agreement that the plaintiff would be granted a serious injury certificate for pain and suffering, but would abandon her application for leave to seek damages for pecuniary loss. A serious injury certificate was granted in accordance with this agreement on 21 May 2021.

"NOTICE PURSUANT TO SECTION 4 PART A OF WORKCOVER (LITIGATED CLAIMS) LEGAL COSTS ORDER 2016

WorkSafe Victoria gives notice it is satisfied that the injury to Marie Matthews incurred over the course of her employment and in particular on 12 April 2015 and 26 July 2016 and as a result of her employment with the Latrobe Regional Hospital satisfies the requirements of s325(2)(b)(i) but not the requirements of s325(b)(ii)."

19 I refer to the Costs Order. Such Order is relevant not only to the Act, but also the Accident Compensation Act 1985 ("the AC Act") and was made by the Executive Council pursuant to the power under s134AGA(1) of the AC Act and s355(1) of the Act. The Order is dated 15 June 2016.

20 The Costs Order is made up of five sections, with the first section stating that the Order may be cited as the "WorkCover (Litigated Claims) Legal Costs Order 2016". Section 2 of the Order is headed "Application" and states that the Order applies to proceedings issued by a worker in accordance with s335(2)(d) of the Act.[7] The Order specifies the professional costs that may be paid by the Authority or the self-insurer to a legal practitioner acting on behalf of the worker and the disbursements that may be paid to a worker or legal practitioner acting on behalf of a worker in respect of any claim or proceeding pursuant to s352(2)(d) of the Act.

21 The Costs Order provides that the entitlement to professional costs and disbursements under the Order replaces any other entitlement of a worker or a legal practitioner to be awarded legal practitioners' professional costs and disbursements payable by the Authority or a self-insurer incidental for and incidental to a proceeding under s335(2) of the Act, and has full force and effect, notwithstanding anything to the contrary in the Legal Profession Uniform Law Application Act 2014, the Supreme Court Act 1986 or the County Court Act 1958, or in any regulations, rules or other documents made under any of those Acts.

22 In particular, Section 2 of the Costs Order provides that, to the extent that any agreement, terms of settlement, release, order, or other document purports to require the Authority or self-insurer to pay costs or disbursements on any basis inconsistent with the provisions of this Order, the provisions of this Order will have full force and effect, notwithstanding anything to the contrary in such agreement, terms of settlement, release, order or document.

23 Section 3 of the Costs Order is headed "Definitions" and contains various definitions relevant to the Costs Order. In particular, I refer to the following definitions:

(a) "'application for pecuniary loss and pain and suffering damages' means an application in which the worker relies on consequences with respect to pain and suffering and loss of earning capacity for the purposes of ... section 325(2)(b) of the WIRC Act";

(b) "'Day 1 of hearing' means the day on which the application for leave referred to in ... section 335(2)(d) of the WIRC Act is listed to be heard before the Court. Where a hearing date lapses due to an adjournment or the case is not reached, 'Day 1' is the day when the application for leave referred to in ... section 335(2)(d) of the WIRC Act is next listed to be heard before the Court";

(c) "'professional costs' means the costs recoverable by a worker in respect of the work undertaken by a legal practitioner";

(d) "'Scale of Costs' means the County Court costs scale as defined in the County Court Rules";

(e) "'the Notice' means the Notice referred to in section 4 Part A which notifies a worker or a worker's legal practitioner that the Authority or the self-insurer will consent to the worker bringing a damages proceeding for pain and suffering damages only";

(f) "'time of resolution' means that point in time, at which the issue as to whether the injury suffered by the worker constitutes a 'serious injury' within the meaning of ... section 325(1) of the WIRC Act is certified by the Authority of self-insurer, or determined by the Court";

24 Section 4 of the Costs Order is headed "Professional Costs and Disbursements" and consists of Parts A (with sub-parts A1, A2, A3, A4, A5, A6 and A7), Part B and Part C.

25 Part A of the Costs Order provides that where a proceeding is instituted by a worker pursuant to s335(2)(d) of the Act, and the professional costs of such proceedings are awarded to the worker, the worker's legal practitioner shall be entitled to be paid professional costs and the worker and/or the worker's legal representative shall be entitled to be paid disbursements by the Authority or self-insurer for the proceeding for whichever time of resolution category A, B, C or D applies. Categories A, B, C and D provide certain amounts of costs, depending on the time and the type of resolution of the proceeding.

(i) the Authority or a self-insurer gives Notice (the Notice) in writing to the worker's legal practitioner that the Authority or the self-insurer is satisfied that a worker's injury satisfies requirements ... section 325(2)(b)(i) of the WIRC Act but not the requirements of ... section 325(2)(b)(ii) of the WIRC Act, and that subject to the worker abandoning that part of the application seeking the leave of the Court to bring damages proceedings for pecuniary loss damages, the Authority or self-insurer will issue a certificate ('the offer'); and

(ii) within 28 days of receiving the Notice the worker or the worker's legal practitioner does not advise the Authority or the self-insurer that the worker accepts the offer; and

(iii) at the time of resolution, whether as a result of a certificate provided by the Authority or the self-insurer or as a result of leave being given by the Court, the worker is entitled to bring a damages proceeding for the recovery of pain and suffering damages but not for the recovery of pecuniary loss damages,

the costs payable is the sum in Table A1, payable at the time the Authority or the self-insurer made the offer in writing to the worker or the worker's legal practitioner.

A3 The offer referred to in the Notice is made without prejudice, unless the Notice otherwise provides. No statement of the fact that an offer has been made, or of the offer, shall be communicated to the court on the trial of the proceeding until after all questions of liability and the relief to be granted have been agreed to, or determined.

27 Parts B and C of Section 4 provide that in addition to the sum specified in Part A, the worker or worker's legal practitioner shall be entitled to be paid as a disbursement in respect of various matters. Subparagraph 5 of Part B, and Part C, state such a disbursement includes:

"5. the cost of counsel's fees (including brief fee) incurred not more than 28 days prior to day 1 of the hearing. The counsel fees payable will be calculated in accordance with the Scale of Costs or any other sum which is agreed or ordered by the Court;

In respect of an item in Part B, if a dispute arises in relation to the allowance of an item claimed or the reasonable cost of the item, the County Court Rules of Civil Procedure will apply to the dispute resolution process."

28 Section 5 of the Costs Order is headed "Indexation" and provides that the amount in dollars specified in Section 4, Part A of the Order is to be varied each financial year consistent with the formula contained in Section 5.

29 I have been provided with a number of decisions from this Court as to the application of the Costs Order - and in particular, Part B relating to disbursements in circumstances where a worker's solicitor has not accepted the offer made by WorkCover in a Notice.

30 In the circumstances of this matter, the first Notice was served by the VWA on 18 February 2021, which would mean that the 28 days concluded on 18 March 2021, whereas the VWA served the second Notice on 17 March 2021, which would mean that the 28 days concluded on 14 April 2021. The solicitors for the plaintiff neither accepted the first offer within the relevant 28-day period nor the second offer within the relevant 28-day period.

31 I refer to the decision of Gellard v Victorian WorkCover Authority,[8] wherein Judge Dyer gave a Ruling in relation to counsels' fees and analysed the relevant Costs Order.[9] Judge Dyer stated:

"I accept as a general proposition that the LCO is a subordinate instrument and its proper interpretation must be one that would promote the purpose or object underlying the enabling legislation.

I further accept that one of the purposes of the legislation is to ensure that costs associated with litigated serious injury applications remain reasonable in order to promote the financial sustainability of the scheme. Notwithstanding such an interpretation of the LCO, there is a clear distinction made between the professional costs set out in Part A and the disbursements which include limited counsels' fees set out in Part B.

The extent to which counsels' fees are payable in accordance with the LCO must initially be determined by an assessment of whether those fees, including a brief fee, were incurred not more than 28 days prior to day one of the hearing. In this case they clearly were.

I am also satisfied that where a dispute arises in relation to counsels' fees, the rules are to apply in accordance with Part C of the LCO. In such circumstances the tests set out in cases such as Oldaker v Currington[[10]] remain valid insofar as the retention of two counsel or senior counsel is concerned."[11]

32 With great respect, I agree with the conclusions reached by Judge Dyer, insofar as they relate to the paragraphs set out above. Furthermore, it must be borne in mind that in civil litigation, the purposes of offers of compromise or settlement is to bring litigation to an end sooner than would be the case if a trial occurred. They are meant to save costs, both for the litigant and the public.

33 Both parties accepted, rightly in my view, that the Court has a discretion in relation to costs issues. I consider that Part C of the Costs Order is relevant as a dispute has arisen as to counsels' fees. Furthermore, there is no issue that such fees were incurred within 28 days prior to Day 1 of the hearing of the matter.

34 The question then is, what is the test and what are the factors that should be taken into account in exercising such a discretion?

35 I refer to the Ruling in Barman v Victorian WorkCover Authority (Ruling as to Costs),[12] a Ruling made by Judge Lauritsen on 8 April 2020, wherein Judge Lauritsen records that he was referred to three Rulings of this Court[13] and that the test which emerges is whether there was an unreasonable objection or non-acceptance of an offer on the part of the solicitor acting on behalf of the worker.

36 Reference was made to the well-known decision of Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2),[14] which stated, when dealing with Calderbank[15] offers:

"... The critical question is whether the rejection of the offer was unreasonable in the circumstances. ... ."

"The discretion with respect to costs must, like every other discretion, be exercised taking into account all relevant considerations and ignoring all irrelevant considerations. ... ."[16]

37 I refer to Conway v Victorian WorkCover Authority (Ruling as to Costs),[17] wherein Judge Wischusen, after noting the earlier decisions of Gellard v Victorian WorkCover Authority,[18] Dowling v Myers Street Family Medical Practice Pty Ltd (Ruling as to Costs),[19] Traumanis v State of Victoria,[20] and to a further Ruling by Judicial Registrar Gurry in Grech v Victorian WorkCover Authority (Ruling as to Costs),[21] stated:

"The correctness of the approach taken in those cases was not controversial - what emerges from them is that the purpose of the relevant provisions of the LCO is to promote early resolution and to reduce costs. By its terms where, as here, the end result is the grant of leave in respect of pain and suffering damages only, the costs consequences for the plaintiff are not, so far as the solicitor's costs are concerned, discretionary. In that sense, the service of the notice operates quite differently from Calderbank[22] offers, as the plaintiff faces no risk of not getting the reduced costs, nor is there the risk of paying the defendant's costs of continuing to pursue leave in respect of economic loss, and failing on that question, much less of having to pay the defendant's costs on a solicitor/client or indemnity basis.

Although each of the parties referred to an examination of the reasonableness of the plaintiff's actions in not accepting the offer by reference to the principles set out in the Court of Appeal decision in Hazeldene's Chicken Farm v Victorian WorkCover Authority (No 2),[23] the cases referred to approach that proposition with some caution:

'Some degree of caution needs to be exercised in adopting a similar analysis that would be relevant in determin[in]g the question of costs following a Calderbank offer. In the case of the LCO the sole determinant of the quantum of professional costs recoverable in an originating motion seeking leave for both heads of damages is the service of the notice. It does not matter whether the notice is given at an early or very late stage of the proceeding. The result for the plaintiff's solicitor is exactly the same in terms of the fixed fees recoverable. Considerations which might seem relevant to the reasonableness of the offer or the unreasonableness of its refusal at the time it was made, are simply not relevant within the framework of the LCO.'[24]

As Judge Dyer observed, it is the result that determines the costs recoverable by the plaintiff's solicitor - and here it is conceded that the grant of leave entitles the plaintiff to costs in accordance with the LCO."[25]

38 I consider that the issue for determination can be stated to be whether the plaintiff's solicitors acted unreasonably in not accepting the offer contained in the first Notice or the offer contained in the second Notice. It was incumbent upon the solicitors for the plaintiff to assess the material that was available to them at the time that each offer was made, bearing in mind that there was 28 days to accept the offer. Such assessment required an examination of the material available to the plaintiff's solicitors, such material including, of course, the plaintiff's instructions, together with other material including medical material relevant particularly to the issue of capacity for work. Furthermore, such assessment of the material must be in the context of what the worker must establish as a matter of probability in order to obtain leave to bring a claim for damages in respect of pecuniary loss - that is, at the time of the hearing, she would have to establish a loss of earning capacity of 40 per cent or more as set out in the Act and thereafter, to continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per cent or more.

39 I set out the following chronology of what seemingly the solicitor for the plaintiff had available at the times he or she had to consider whether to accept the offers made in the respective Notices served by the defendant:

(a) As set out in the submissions by the defendant, the plaintiff made application for a serious injury on 15 June 2020 which, amongst other things, contained the first affidavit of the plaintiff sworn on 29 May 2020, and a medical report of the occupational physician, Dr Peter Wilkins, dated 10 April 2020 in respect of a videolink conference with the plaintiff on 31 March 2020. All of the other medical reports predated the total knee replacement procedure on 28 September 2018.

In that first affidavit, the plaintiff deposed, at paragraphs [40]-[41]:

"In early 2019 I returned to the workforce after I saw an ad in the newspaper at the rooms of Professor Sasse, Respiratory Specialist, where I started work and training to become a lung function technician. I worked one 4 or 5 hour shift per week until the COVID-19 restrictions came into place. It is perfect for me because I can get up and sit down as my knees need. I can also go home and elevate my legs after the shift and the following day to recover from the shift which I find essential to stop swelling and pain.

When COVID-19 restrictions are lifted, I expect to go back to that shift."[26]

I also refer to the report of Dr Wilkins dated 10 April 2020. In particular, at paragraph 6 there is set out various questions and answers:

"6. your views as to our client's current capacity for work, taking into consideration:

In the absence of the present COVID-19 related shutdown, in my opinion, Ms Matthews would have capacity for suitable light, sedentary-type employment.

Later in that report, Dr Wilkins also records that the plaintiff would be a good candidate for a future administrative role, at least part time in a health-related field;

(b) Those acting for the plaintiff received a letter from Dr Peter Wilkins dated 11 February 2021 which was in response to their letter dated 11 December 2020. In that letter, Dr Wilkins was supplied with a report from Dr Philip Sharp dated 15 September 2020 (Dr Sharp being a senior consultant surgeon retained by the defendant) and a report from Recovre dated 1 September 2020 (to which reference has already been made).

Dr Peter Wilkins, although not re-examining the plaintiff, was asked further questions, to which he gave answers:

"• Your opinion about the restrictions our client's work-related left knee injury places on our client's capacity for work;

As noted in my original report, Ms Matthews is unable to kneel or squat due to the work-related injury to her left knee. She describes difficulty with prolonged static standing, also sitting or driving for longer than about one hour without a break. She reports hypersensitivity lateral to the operative scar.

I note from Dr Sharp's report the comment that her pain is worse if she ascends or descends stairs, walks up or down slopes or on uneven ground. He reported that she also told him it is difficult for her to get in and out of a chair or a car. Even singly, each of these afflictions would adversely affect Ms Matthews' work capacity, while in combination they constitute a major impediment.

• • Your opinion regarding our client's maximum capacity for work with respect to hours and duties;

Ms Matthews reported both to me and to Dr Sharp that, because of pain at her left knee, she had difficulty working more than the 5½ hours per day (performed one day per week) she undertook as a respiratory technician until earlier this year. I note from Dr Sharp's report that, 'since my assessment of her, Ms Matthews has significantly increased her reported analgesic dosage'. Such increased dosage would be consistent with and most likely result from a worsening of her knee pain, as she reported to Dr Sharp in relation to both her knees. I therefore conclude that work for up to 5½ hours, once per week, is all she can realistically manage without increased pain levels and further recourse to analgesia.

• • Your opinion on whether the occupations identified in the Recovre report dated 01 September 2020 are suitable for our client given her left knee injury.

(There is no right knee injury, only a degenerative condition).

Without regard to the increased IT skills required to perform several of these tasks (security gatehouse/concierge/control room officer; customer service (information officer, face to face or telephone based); admissions clerk; and entry level receptionist roles I opine as follows.

In a general sense, any of these roles may be suitable for Ms Matthews. However, the particular characteristics of each work location would require careful consideration before she entered into employment at any relevant site. There should be no requirement whatsoever for kneeling or bending, minimal requirement for prolonged standing, ability to perform the majority of required tasks in a seated position and, ideally, no requirement for use of stairs, walking on ramps or slopes or broken ground. Similarly, there should be a manual handling limit of 4 kg imposed so as not to place additional strain on Ms Matthews' knees while lifting, carrying, pushing or pulling materials.

Provided a work situation arises where these limitations can be observed, I consider that Ms Matthews could work a single shift per week, for no more than 5½ hours.

Given my findings at the time of my assessment of Ms Matthews, the contents of Dr Sharp's helpful report and the known natural history of the conditions (workplace injury to her left knee requiring total prosthetic requirement and degenerative condition affecting her right knee) from which Ms Matthews suffers, there appears no need for a further re-examination of Ms Matthews."[28]

(c) I have already referred to the second and last affidavit of the plaintiff sworn on 10 February 2021 wherein she deposes that she is working at her maximum capacity, being 5.5 hours per week, performing very basic patient testing with the respiratory physician, Professor Anthony Sassé. Furthermore, she also deposes that the various jobs suggested by Recovre in the report dated 1 September 2020 would be unsuitable for her;

(d) Mr Philip Sharp, a senior consultant surgeon, consulted with the plaintiff on several occasions, some of which were prior to her final surgery on 28 September 2018.

However, in a report dated 15 September 2020, Mr Sharp notes that he had a Telehealth assessment on the same date as his report. He obtained a history, in part, of the plaintiff undergoing a total left knee replacement on 28 September 2018, and being discharged from hospital after rehabilitation on 16 October 2018. Furthermore, he obtained the history that the plaintiff had, in early 2019, commenced work with Professor Sassé as a lung function technician, working 5.5 hours per week, stopping because of COVID restrictions.

Mr Sharp was supplied the Recovre report dated 1 September 2020, setting out the various suggested employments, and also was asked a variety of questions in relation to the capacity of the plaintiff to perform work. In particular, Mr Sharp stated the following:

Ms Matthews may be able to do these jobs as long as she was not required to kneel, squat, avoid prolonged standing and sitting or driving. She should avoid going up and down stairs, inclines or walking on uneven ground and should not kneel or squat.

When she was working up until the middle of August 2020 she found that working five and a half hours per week was the most she could work.

8 Having regard to the vocational assessment report dated 1 September 2020 detailing the requirements of the lung function technician role at page six and the lung function technician duties description, does the worker have the physical capacity to continue to perform the duties of a lung function technician?

Do you consider there is any physical restriction on the number of hours per week the worker can perform in this role?

She finds it difficult to work more than five and a half hours per week because of ongoing symptoms.

9 The worker's prognosis and need for any further treatment.

Her prognosis is guarded. She will require analgesia for her ongoing symptoms.

(e) In a report dated 5 March 2021, Mr Sharp notes that he was referred to his earlier reports, the vocational assessment report by Recovre dated 1 September 2020 and was supplied a surveillance report dated 27 August 2020. Again, he was asked various questions, to which he answered:

"1. Whether the enclosed report and footage would alter your opinion in any way?

2. Do you consider the enclosed footage would alter your opinion:

(a) In respect of the worker's alleged current physical limitations or alleged incapacity;

(b) The worker's physical capacity to perform the physical requirements of the jobs listed in the enclosed vocational assessment report dated 1 September 2020 (discussed in your report dated 15 September 2020)?

I have not changed my opinion, as expressed in my report dated 15 September 2020, where I said, 'Ms Matthews may be able to do these jobs as long as she is not required to kneel, squat and avoid prolonged sitting, standing or driving. She should avoid going up and down stairs, inclines or walking on uneven ground and should not kneel or squat'.

Therefore, she should be able to do the above jobs if the above restrictions were followed.

3. From a physical perspective, are there any restrictions on the number of hours of work per week the worker can perform in suitable employment?

When I did the telehealth assessment on 15 September 2020, Ms Matthews said she was working up until the middle of August 2020 and found that working five and a half hours per week was the most she could work. I have not been given any further information regarding further work. Her local doctor could monitor the hours worked and these could be adjusted accordingly, as tolerated. I cannot be more specific than this."[30]

(f) Those acting for the defendant also sought an opinion from the orthopaedic surgeon, Dr Anthony Menz, who examined the plaintiff on 12 July 2019 and reported on 22 July 2019. Dr Menz obtained a history that the plaintiff had found a job with a respiratory physician as a lung function technician, which is mainly a seated job, and she was performing six to eight hours a week. Dr Menz was of the opinion that the plaintiff would never be able to return to her pre-injury form of work duties and hours. When queried about her "current work capacity", Dr Menz responded that the plaintiff did have a current work capacity and "is working and I have described this above".

When queried about whether the worker could return to work in modified pre-injury duties and/or hours and alternative duties and/or hours with the worker's current or another employer, Dr Menz responded:

"She can return to modified duties and modified hours and is doing that at the moment."[31]

40 Both parties seemingly accept that the plaintiff's "without injury earnings" were approximately $28,058.00 gross per annum, or, alternatively, $540.00 gross per week, which in turn would make the 60 per cent threshold approximately $324.00 per week.

41 In such circumstances, those acting for the plaintiff submit that her "with injury earnings" would be approximately $160.00 gross per week, being 5.5 hours per week at $29.00 per hour (the hourly rate as deposed to by the plaintiff in her last affidavit). Furthermore, Counsel for the plaintiff point out that if her "with injury earnings" were based on 8 hours per week at $29.00 per hour, they would amount to $232.00 gross per week - still under the threshold of $324.00 per week.

42 I should point out that even if one allowed the plaintiff working 11 hours per week at $29.00 per hour, her "without injury earnings" would be $319.00 - still marginally less than $324.00. Of course, if one allowed 11 hours, it is a 100 per cent increase on what she asserts is the level at which she could work comfortably.

43 It is also to be noted that those acting for the defendant arranged for the specialist occupational physician, Dr Joseph Slesenger, to examine the plaintiff initially via Telehealth link on 17 March 2021 and later, a face-to-face consultation on 6 April 2021. In his report dated 21 April 2021, Dr Slesenger asserts, after setting out the job demands as a lung function technician, that the plaintiff could work in this capacity between 24 to 36 hours per week. It is pertinent to note that this was the first opinion which directly asserts that the plaintiff, in all the circumstances, could perform the job as a laboratory technician beyond the 5.5 hours that she was performing prior to COVID.

44 During the hearing on this particular issue, leading Counsel for the defendant also submitted:

(a) At the time of her cessation of work with the defendant on 14 March 2017, the plaintiff was performing approximately 16 hours' work per week. Of course, it is to be remembered that the defendant said there were no more duties for her and that such cessation occurred prior to total knee replacement surgery on 28 September 2018;

(b) In relation to her work performed as a lung function technician, leading Counsel queried whether such work was reflective of the plaintiff only performing 5.5 hours per week due to availability or, alternatively, due to a reduced capacity. In this respect, Counsel highlighted that the nature of the work was "ideal" because it allowed her to stand and sit and move around as she needed. However, this must be set against the sworn assertions by the plaintiff that she considered 5.5 hours was her limit and such limitation seems to be accepted by both Dr Peter Wilkins and Mr Philip Sharp. Furthermore, I would read the report of Dr Menz that he considered the number of hours she was performing as reasonable, when he states:

"She can return to modified duties and modified hours and is doing that at the moment."[32]

(c) Leading Counsel also submitted that there is a reference to the plaintiff travelling overseas to Italy in 2019.[33] It was also submitted that the plaintiff travelled to Bali a year earlier. Although understanding the thrust of the submission that such activities suggest a reasonable ability to move and be active, I put little weight on these matters as there is no detail whatsoever as to the reason why she was going, what arrangements she made for the nature of her travel to accommodate her knee condition, whether she was required to take treatment with her or sought treatment overseas;

(d) Leading Counsel also submitted that there is a reference that the plaintiff was doing some voluntary work, such material found in the reports of Dr Sharp. I believe this would be a reference to the report of Mr Sharp dated 15 September 2020 wherein, at page 6, he states:

"At the present time she works three to four hours doing voluntary work for the Cemetery Trust and for Heart Focus - a group that provides a food bank for those in need. She is on the committee of this group."[34]

Again, it is not clear what these three to four hours of voluntary work involved, whether it is undertaken from her home in a seated position or whatever. Although it may be demonstrative of her wanting to help the community, I do not believe much can be gained in relation to an understanding of greater capacity from such limited material.

45 I consider that a reasonable solicitor confronted with the two Notices served on him by the defendant would take the view that his client had an excellent work record, as demonstrated by her various jobs over the years, and indeed, her determination to keep coming back to work with the defendant until such time as no work was available. The material generally suggests that in no way could it be said that the plaintiff was shy of work. Furthermore, it would appear to be common ground that the plaintiff was incapable of performing the work that she had performed with the defendant.

46 Again, there are no credit issues in this matter and there would appear to be no good reason not to accept the plaintiff's assertion that she is limited in the number of hours that she can work as a respiratory technician. Indeed, her views seem to be supported by Mr Wilkins, Mr Sharp and Dr Menz.

47 It was only when the report from Dr Slesenger was made available, that he unequivocally asserted that given the job demands associated with the plaintiff working as a lung function technician, she was capable of working between 24 to 36 hours per week. This report only came into existence after the conclusion of the 28 days following the second Notice and, accordingly, could not have been material available to the solicitor for the plaintiff to consider whether it was reasonable or not to accept the offer.

48 In their written submissions, Counsel for the defendant referred to the decision of Judge Misso in Condron v Victorian WorkCover Authority (Ruling as to Costs),[35] wherein his Honour stated, by way of obiter dicta:

"I think the purpose of the Costs Order is to avoid a plaintiff being made a reasonable offer of a pain and suffering certificate, and then simply blithely pressing on, and then accepting the very offer which was made earlier. The costs penalty must then apply; however, that does not mean that there may not be some extenuating circumstances which may operate against the plaintiff suffering the costs penalty."[36]

49 Judge Misso makes clear that accepting the offer which was made earlier does not necessarily mean that the cost penalty in relation to counsel applies. I consider that when he uses the word "blithely", suggests that when consideration is given to the plaintiff's position during the 28 days following the service of the Notice, the solicitors ignore reality and simply press on with the hope that something might happen.

50 Furthermore, it is to be stressed that the test is as to what a reasonable solicitor would do when confronted with a notice and making a decision as to whether or not the offer should be accepted within the 28 days. As I have already pointed out, this would have to involve a consideration of the instructions of the plaintiff, the various material available to the plaintiff's solicitor - particularly the medical material and perhaps even credit issues such as surveillance material, if that had been made available.

51 Of course, it is perhaps trite to note that settlements come about for a variety of reasons and sometimes involve plaintiffs willing to take the security of a given offer rather than confront a court situation, even in circumstances where objective analysis may well suggest the plaintiff may win the case.

52 Although I accept that one may more keenly examine the circumstances where a plaintiff accepts the offer on the day of hearing in circumstances where the offer was made relatively recently, compared to circumstances where a plaintiff maintains his or her position and seeks a determination for leave to bring a claim for pecuniary loss damages and is unsuccessful by order of the court. However, both situations still involve an assessment of the circumstances of the plaintiff made within those 28 days following any particular notice served by the defendant (the VWA).

53 In the circumstances of this matter, I do exercise my discretion in favour of the plaintiff and will allow Counsels' fees.

[1] See "Outline of Plaintiff's Submissions" dated 26 May 2021 and "Submissions of the Defendant with Respect to Costs", undated

[4] See affidavit of the plaintiff sworn 10 February 2021 - pages 38-39 of the Plaintiff's Court Book ("PCB")

[5] See pages 120-145 of the Defendant's Court Book ("DCB")

[7] Section 2 of the Order also provides that it applies to proceedings issued by a worker under the AC Act. Considering that we are dealing with the Workplace Injury Rehabilitation and Compensation Act 2013, I will only make reference to that Act.

[8] [2017] VCC 1919

[9] The Costs Order examined by Judge Dyer was the WorkCover (Litigated Claims) Legal Costs Order 2010 whereas the subject Costs Order is that made in 2016. For practical purposes there is no difference.

[10] [1987] VicRp 61; [1987] VR 712

[11] (Op cit) at paragraphs [28]-[31]

[12] [2020] VCC 380

[13] See Traumanis v State of Victoria (Unreported), VCC, 26 May 2017; Gelland v Victorian WorkCover Authority (op cit), and Dowling v Myers Street Family Medical Practice Pty Ltd (Ruling as to Costs) [2018] VCC 2314

[14] (2005) 13 VR 435 at paragraph [23]

[15] See Calderbank v Calberbank [1975] 3 All ER 333

[16] Hazeldene's (op cit) at paragraph [24]

[17] [2021] VCC 1197

[21] [2020] VCC 968

[22] Calderbank v Calderbank [1975] 3 All ER 333

[24] Gellard v Victorian WorkCover Authority (op cit) at paragraph [34]. See also Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121, decided on the legislation before the 2010 LCO came into effect, at paragraphs [119]-[134]

[25] Conway v Victorian WorkCover Authority (op cit) at paragraphs [16], [17] and [18]

[33] See page 215 DCB and, in particular, the medical record/note dated Friday, September 6 2019

[35] [2021] VCC 183