83 All of Mr Lim, Mr Robinson, Dr Ker, Dr Home, Mr Bell, Dr Suthers and Dr Tye are of the opinion and I find that the plaintiff cannot return to work as a boilermaker/welder. There is an issue as between the plaintiff and the defendant on the extent of the plaintiff's incapacity.
84 After the plaintiff first saw Dr Tye on 25 August 1994 he did not work for the next six to seven weeks. During this time he received conservative treatment including medication and physiotherapy. His medical expenses were paid for by the workers' compensation insurer. For some reason the insurer would not cover weekly workers' compensation payments and so none were made for some time after the accident. I am not able to conclude from the evidence exactly when weekly workers' compensation payments commenced but it seems as though it was about January 1995.
85 Before weekly workers' compensation payments commenced the plaintiff worked first at World Services and Construction ("World Services") as a pipe fitter with a trades assistant and later at John Holland Construction and Engineering ("Holland"). The plaintiff's taxation return for the financial year ending 30 June 1995 shows that he earned a total of $12,709 gross from these two employers. The plaintiff said that he returned to work after the accident because he needed an income. He added that he later stopped work because he could not put up with the pain in his right shoulder any longer.
86 The workers' compensation insurer arranged for the plaintiff to have a vocational assessment in September 1995 and a functional assessment in November 1995. In early 1996 the plaintiff successfully completed a warehouse training course which included forklift driving and selecting goods from stock to satisfy orders from customers. The plaintiff started a work trial in the storeroom at Coventry's on 4 June 1995. His duties required him to select components from shelves in the storeroom to satisfy orders. He stopped the work trial after a week with the agreement of Dr Tye. He said that he stopped because of pain in his shoulder caused by having to reach up to get components from the shelves. Since then he has not attempted any other work trial and has remained unemployed. He received weekly workers' compensation payments from 1995 to 1997 inclusive of $103,708 in total which includes an overpayment of about $20,000.
87 In a report dated 28 December 1998 Dr Tye stated that the plaintiff could be retrained for clerical work but because of his age his chance of getting such work was not good. He also stated that the plaintiff could do light work such as a car park attendant with no restriction on working hours. In a report dated 24 June 2000 he stated that the plaintiff's work capacity had been reduced by 50 per cent or more particularly in relation to heavy work because his upper right limb was not functional.
88 In a report dated 30 January 2002 Mr Lim stated that the plaintiff was unfit for any work on a full time or part time basis. In a report dated 14 December 2001 Mr Robinson stated that the plaintiff should not carry anything heavy in his right hand or do work above shoulder height. He stated that the plaintiff was capable of doing bench work. Given the injury and the plaintiff's age he thought it unlikely that the plaintiff would return to the workforce at all.
89 In a report dated 19 February 2002 Dr Ker stated that the plaintiff is unfit for work for the foreseeable future. He gave evidence that the plaintiff could work as a sales person, a caretaker if not a lot of maintenance and cleaning work had to be done and bench work using small components. He said that he could drive a forklift but would not be able to manually load it.
90 In a report dated 5 December 1995 Mr Bell stated that the plaintiff could work as a forklift driver, clerical assistant, taxi driver, postal employee, spare parts assistant, shop assistant, parking inspector and sales person provided he was only required to lift less than 7 kilograms. Mr Bell gave evidence that this applied to lifting using both hands at the same time.
91 In a report dated 24 June 2998 Dr Home stated that the plaintiff was physically fit to undertake duties provided they were performed at bench height. He added that such duties would involve a mixture of very light manual work and clerical tasks perhaps as a dispatch or receivals clerk in a store. He also added that the plaintiff could do some driving of a forklift.
92 In a report dated 22 August 2000 Dr Home stated that the plaintiff was fit to undertake bench height activity including light work as a receival or despatch clerk in a store where the work was primarily clerical in nature. In a later report dated 6 March 2002 he stated that the plaintiff was fit to operate a delicatessen and that he could also work as a static security agent and in a light stores role. He gave evidence that the plaintiff could lift heavier objects to shoulder height, lift lighter objects above his head, lift boxes of vegetables of 15 kilograms or less, and stock shelves for part of the day.
93 In a report dated 6 March 2002 Dr Suthers stated that the plaintiff could work as a welder with a trades assistant to do most of the lifting, as a boilermaker/welder where the demands were light and that he could do bench work. Dr Suthers stated that the plaintiff would have difficulty lifting away from his body with his right hand and for this reason suspected that he could not work in a delicatessen. Dr Suthers also stated that generally the plaintiff could undertake light duties including light stores work and a service station assistant on a full time basis.
94 Adrianne Jones ("Ms Jones") is a vocational rehabilitation consultant. She was called as a witness by the defendant. Her prognosis of the plaintiff returning to work was guarded given his age, injury, work history, lack of educational qualifications, that English was not his first language and potential reluctance by some employers to employ a person with an injury.
95 I find that since about mid-1998 the plaintiff has been and in the future will be capable of work of a light duty nature and also work including welding work at bench height. I also find that given the factors mentioned by Ms Jones the plaintiff will find it difficult although not necessarily impossible to find work in the open labour market. I assess the plaintiff's retained earning capacity from mid-1998 at 25 per cent of his pre-accident capacity.
96 In the financial year ending 30 June 1993 the plaintiff had a taxable income of $21,045 and $17,623 net after tax and the Medicare levy. In the financial year ending 30 June 1994 he had a taxable income of $25,746 and $20,535 net after tax and the Medicare levy. The mid-points of the plaintiff's gross and net incomes for these two years before the accident are $23,395 and $19,070 per annum respectively. I propose to use these rates to assess the plaintiff's economic loss.
97 The average annual earnings of a boilermaker/welder in Western Australia in each of the years from 1995 to 2002 inclusive increased at the rates of about 3 per cent, 12.08 per cent, 0 per cent, .94 per cent, 0 per cent, 7.45 per cent, 0 per cent and 0 per cent respectively on the previous year. Using $19,070 per annum net as the base and applying these increases the plaintiff could have been expected to have earned the following: