in the county court of victoria revised at melbourne … · vcc:lm/dc/as/lw/lp 3 judgment hubeek v...

COUNTY COURT OF VICTORIA 250 William Street, Melbourne

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IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted

Suitable for Publication

SERIOUS INJURY LIST Case No. CI-17-00214

MICHAEL ALLAN HUBEEK Plaintiff v VICTORIAN WORKCOVER AUTHORITY Defendant

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JUDGE: HER HONOUR JUDGE K L BOURKE

WHERE HELD: Melbourne

DATE OF HEARING: 8 September 2017

DATE OF JUDGMENT: 6 October 2017

CASE MAY BE CITED AS: Hubeek v Victorian WorkCover Authority

MEDIUM NEUTRAL CITATION: [2017] VCC

REASONS FOR JUDGMENT

--- Subject: ACCIDENT COMPENSATION Catchwords: Serious injury – credit – impairment to the pelvis - pain and suffering –

loss of earning capacity Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38) Cases Cited: Humphries v Poljak [1992] 2 VR 129; Barwon Spinners Pty Ltd & Ors v

Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Poholke v Goldacres Trading & Anor [2016] VSCA 232; Roleff v Chubb Insurance Company of Australia Pty Ltd [2011] VSCA 21; Richter v Driscoll [2016] VSCA 142

Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of loss of earning capacity.

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APPEARANCES:

Counsel Solicitors

For the Plaintiff Mr R Meldrum QC with Mr L Allan

Patrick Robinson & Co

For the Defendant Mr B McKenzie Russell Kennedy

VCC:LM/DC/AS/LW/LP 1 JUDGMENT

Hubeek v Victorian WorkCover Authority

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to

s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury

suffered by the plaintiff in the course of his employment with Swire Cold Storage

Pty Ltd (“the employer”) on 13 April 2011 (“the said date”).

2 The plaintiff seeks leave to bring proceedings for damages in relation to both

pain and suffering and loss of earning capacity. These discrete heads of

damage require the application of different statutory tests, as mandated by

s134AB(37) and (38).

3 The plaintiff brings this application pursuant to clause (a) of the definition of

“serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is

defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.

4 The body function relied upon in this application is the pelvis.

5 The impairment of the body function must be permanent, in the sense that it is

likely to continue into the foreseeable future.

6 The plaintiff bears an overall burden of proof upon the balance of probabilities.

Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act

impose specific burdens in relation to a claim for loss of earning capacity.

7 By s134AB(38)(c) of the Act, the impairment must have consequences in

relation to each of pain and suffering and loss of earning capacity which, when

judged by comparison with other cases in the range of possible impairments,

fairly described, at the date of the hearing, as being more than significant or

marked, and as being at least very considerable.

8 I am required to consider the consequences to this particular plaintiff, viewed

objectively, arising from the injury. Comparison must also be made of the



impairment arising from the injury in this particular application with other cases

in the range of possible impairments or losses of body function, mental or

behavioural disturbances or disorders.

9 In this application where there is a claim for loss of earning capacity, that loss

of earning capacity must be to the extent of 40 per cent or more, both at the

date of hearing and permanently thereafter.

10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity

is to be measured.

11 Subsection (38)(g) requires questions of rehabilitation and retraining be

considered in determining whether the 40 per cent loss has been established.

12 Subsection (38)(h) provides consequences which are psychologically based

are to be wholly disregarded in paragraph (a) cases.

13 I have applied the principles identified by the Court of Appeal in Barwon

Spinners Pty Ltd & Ors v Podolak1 and Grech v Orica Australia Pty Ltd & Anor2

in reaching my conclusions.

14 Counsel for the defendant indicated the primary focus was on the loss of

earning capacity application but the issue of pain and suffering was still live. 3

15 The plaintiff relied upon four affidavits and was cross-examined. His wife, Maria

Hubeek, also swore an affidavit on 15 July 2017. In addition, Craig Matthews,

an employee of the defendant swore an affidavit on 7 September 2017. He was

required for cross-examination. Both parties relied on medical reports and other

material which was tendered in evidence. I have read all the tendered material.

1 (2005) 14 VR 622 2 (2006) 14 VR 602 3 Transcript “T”1



The Plaintiff’s evidence

16 The plaintiff is aged fifty-six, being born in October 1960. He is currently in

receipt of weekly payments at the current work capacity rate.4

17 The plaintiff was educated to about Year 9, and thereafter has worked without

formal qualifications, generally as a labourer doing factory or store work.

18 The plaintiff started working as a leading hand for the employer in about 2002.

His job involved doing a variety of tasks, including picking, packing, loading

trucks and repairs,

19 On the said date, at the employer’s premises, when the plaintiff was walking

towards a crane which he had to repair, he was struck by a forklift, suffering a

badly crushed pelvis (“the incident”).

20 After the incident, the plaintiff was assisted by co-workers and an ambulance

was called. He was inpatient at the Alfred Hospital for about five days, then

discharged to Epworth Hospital where he stayed for about a fortnight.

21 The plaintiff did not undergo operative treatment. On discharge, he was not able

to weight bear on his left leg for about two months or so.

22 Since being discharged, the plaintiff has been under the care of his general

practitioner, Dr Everitt, at Casey Medical Centre where he has attended since

about 2004.

23 The plaintiff ceased physiotherapy in about December 2011, as it was not giving

him any benefit. Since that time, he has had no active treatment, nor has any

been suggested. He has continued to see Dr Everitt, who is aware of his

significant ongoing problems.

24 As of August 2016, when he swore his first affidavit, the plaintiff was reluctant

to take pain relief because he thought it would affect him at work, and he was

worried if he masked the pain, he might do something which was unwise. He

4 T112



therefore generally put up with ongoing pain, although he took Panadol when it

was really severe – about eight tablets a week.

Post incident work

25 About four or five weeks after the incident, the plaintiff started doing some

transport log work from home by computer. A couple of months later, he started

to attend the employer’s premises, at first on very restricted hours and duties.

His hours gradually built up and his duties slowly increased until he was working

full-time, but his overtime fluctuated.

26 The plaintiff was doing many of his pre-injury duties, but not all of them. He

was no longer doing any picking and packing, and many other tasks had

restrictions and difficulties associated with them. For example, getting in and

out of the forklift was difficult, as he could not climb up and down as he used to.

27 Before the incident, the plaintiff was employed full-time as a store person by the

employer and was leading hand on the afternoon shift – a very practical and

physical role. While he was supervising employees, the plaintiff did not

undertake any of the administrative tasks and was not involved in hiring or

approving annual leave. It was his role to ensure fellow workers arrived on time

and undertook the jobs on the factory floor properly.

28 As leading hand on the afternoon shift, the majority of the plaintiff’s tasks were

physical. He spent a considerable amount of time operating a crane and also a

forklift. He was also responsible for loading and unloading containers and

trucks and performing basic maintenance.

29 After the incident, the plaintiff returned to work on what he would describe as

light duties. These were not the type of duties he had ever seen anyone else

undertake during his entire working life. They were considerably different from

those he was able to undertake pre-incident.



30 The plaintiff was provided with a computer and undertook basic data entry in a

program called AS/400. It was a basic menu-driven program that he had not

seen anywhere outside his employment.

31 The plaintiff understands the employer had another computer program that was

used for the inventory of the warehouse. He attempted to operate this program

for about a month without success, and was told that he caused havoc when

he tried to use it. As a result, following the incident, any work the plaintiff

undertook on the computer was extremely limited.

32 In May 2015, the employer was in the process of relocating to a warehouse in

Laverton. The plaintiff worked in in that warehouse as instructed for about three

months. At the end of that period, because he was restricted to light duties, the

plaintiff was told there were no prospects of being employed at Laverton and

his employment at the new warehouse ceased. He understood that his

employment prospects would be restricted in any other type of logistics role

within the warehouse industry due to his injuries.

33 When required to work in Laverton, the plaintiff had to drive for long periods

from his home in Narre Warren. Sitting in the car significantly increased his

spinal pain, and he would arrive at work in considerable pain. When driving

home each day, he had to stop at the Clayton warehouse, and although doing

so allowed him to take a break from the drive, he was still in significant pain

once he got home.

34 Whilst undertaking light duties with the employer, the plaintiff was able to

delegate many of his duties. As he had a very long history of working with the

employer, his workmates understood his restrictions and his manager tolerated

them. The plaintiff was able to self-pace and only undertake duties which did

not cause pain. He did not believe he would have the luxury of self-pacing in

any other type of employment.



35 The plaintiff swore a fourth affidavit on 6 September 2017 in response to the

affidavit of Chris Harrison which was originally relied on by the defendant. In

that affidavit, the plaintiff addressed a number of matters raised by Mr Harrison

as to the nature of his post incident duties.

36 There was only one suitable duties plan dated 13 July 2015 which was brought

into existence for the plaintiff’s work, whereas he was informed there would be

a monthly duties plan. That plan represents the sort of work he was doing until

he was made redundant. He had no idea whether Dr Everitt was aware of this

plan.5

37 The plan set out physical and other requirements of the job at that time were

administration, office work, inventory checks, forklift work, staging orders,

labelling, running stock in and out, and picking cartons less than 5 kilograms.

38 The plaintiff responded to a number of matters deposed to on the employer’s

behalf by Mr Harrison. The plaintiff explained that post-incident when working

at home, he had to break up the periods worked to no more than 20 minutes to

half an hour at a time, and he could only work for a total of three hours a day.

39 The plaintiff returned to work on about 17 June 2011, and most days remained

at work for about five hours. However, he does not believe he ever worked on

any day for more than a total of about three hours, and never for more than

approximately half an hour at a time. He never worked on computers for six

hours a day.

40 Whilst the certificates of capacity did not make reference to the plaintiff’s

problems with prolonged sitting and standing, he had discussed this issue with

Dr Everitt.6

5 T41 6 T34; T39



41 Although the plaintiff’s time at work increased to his pre-incident hours, he was

not able to engage in work on any one day for a total of more than about six

hours, and in an unbroken period for any more than 20–30 minutes.

42 By the time the plaintiff finished working for the employer, the periods he spent

in any one day loading and unloading trucks using a forklift never exceeded a

total of six hours, and not for more than 20–30 minutes at one time on a forklift.

He required a break of 10–15 minutes or so before he could resume using the

forklift.

43 The plaintiff would not be comfortable on a forklift for any longer than about 20

to 30 minutes at a time, and was very rarely occupied transferring stock

between two buildings for longer than an hour and a half. Rarely it might occupy

him for up to two hours a day.

44 The plaintiff’s use of the forklift was self-managed and he did not necessarily

complain to Mr Matthews about it or any other duties that he was doing at that

time. He did not need a medical certificate.7

45 Cycle counting was conducted only on Thursdays nights. The plaintiff would

walk with a clipboard, counting and recording products, for no more than about

20 minutes on the day.

46 The plaintiff had only a minuscule involvement with COR declaration forms,

which involved typing details into a computer. He only did transport bookings in

2011 and 2012. That involved inputting data into a computer, and did not take

more than about two hours on any one day. Other computer work occupied no

more than 30 minutes a week.

47 Training staff was a very minor part of what the plaintiff did. He tried to be good

at training people.8 Principally this training was limited to familiarising new staff

7 T59 8 T57



with the geography and procedures of the workplace, and would occupy no

more than half an hour per new employee.

48 It was extremely rare for the plaintiff to be involved in picking an order because

his work never involved him lifting over 5 kilograms.9

49 In cross examination, when it was suggested it was not a “made up” job, the

plaintiff said he had nobody telling him what not to do.10

50 Whilst Mr Matthews described the plaintiff as proficient in operating a computer

to carry out stock investigations, the plaintiff said “say so.” He denied he could

get to the heart of the problems and sort it out - he could just highlight it.11

51 Mr Matthews knew about the plaintiff’s restriction, as did Donny Francis, the

supervisor. Mr Francis was the one who rang the ambulance and knew

everything from the time the plaintiff went through rehabilitation. He knew the

plaintiff was on work certificates.12

52 Mr Matthews would ask the plaintiff how he was and the plaintiff would always

say, “I'm awake.”13 Their catch ups were few and far between.14

Further studies

53 While the plaintiff was undertaking suitable duties with the employer, he

undertook further qualifications in an attempt to rehabilitate himself and try to

make himself as employable as possible.

54 In 2015, the plaintiff completed a mandatory Certificate in Work Safely at

Heights. This was more of an induction. He is not able to climb up and down

any type of ladder or steps because of his current pelvic pain and restrictions.

9 T46 10 T47 11 T57 12 T58 13 T58 14 T59



This was a one-day classroom based learning, and he did not believe anyone

had difficulty passing the test.

55 The plaintiff also completed a Certificate IV in Transport and Distribution

(Warehousing and Storage). He was able to complete this qualification

because it involved one-on-one training with an assessor. The training took

one hour per week and was undertaken over a year. There was no requirement

to do any study at home. There was no computer-based assessment, and the

plaintiff undertook a multiple-choice question and answer test which he was

basically spoon-fed. He does not believe he would be able to undertake this

type of retraining in any other employment or formal environment.

Redundancy

56 The plaintiff employment was terminated by letter dated 25 May 2016. He then

received a termination payment of $106,000. He denied he had no imperative

to look for work after he received this payment.15

57 The plaintiff agreed that he had not taken a lot of sick leave, with $14,500 of his

termination payment being a refund of sick leave.16

58 The plaintiff agreed he was doing regular overtime the whole way through to

being made redundant. His overtime was at the end of the shift. He worked

anywhere up to four to five hours overtime. He agreed his times sheets showed

in the last week before he ceased work he worked seven hours overtime.17

59 The plaintiff agreed that his wages increased post-incident, explaining this was

probably due to the EBA.18 It was possible he was being paid for a valuable job

and his income was going up accordingly. He agreed he was not thrown on the

scrap heap after a year from his injury. He was kept on for five years until the

premises closed. He denied that was because he was a valued employee and

15 T36 16 T43 17 T35 18 T48



that he was performing valuable work for the employer.19

60 The plaintiff agreed as he told Dr David Barton in May this year, if he had not

been redundant he would still be in his old job doing the supervisory work.20 It

was possible as Dr Barton noted, that he reluctantly acknowledged a capacity

to do similar work in the logistics and warehousing area with a 5 kilogram weight

limit as he had been certified since about 2011.21

Post redundancy employment

61 The plaintiff sought employment after the redundancy, and for a brief time in

June 2016 was employed by Australian National Couriers (“ANC”) as a

courier.22 He got this job through a friend, but it quickly became apparent he

could not do the inherent requirements of the job as he was not able to lift and

deliver packages of up to 20 kilograms, a weight much greater than he had

been told was involved in the job.

62 The plaintiff was required to do between 10 and 15 deliveries a day on average.

He worked about nine days in total during which he was in very bad pain, in

particular, as he was often required to get in and out of a car. The plaintiff was

not able to keep up with the workload, and the type of work caused a significant

increase in hip pain.

63 As of August last year, whilst the plaintiff had looked for other work, he had not

been able to find any he could perform due to his physical restrictions and

limitations, and he did not think he would ever be able to return to any work.

Pain and restrictions

64 As of August 2016, the plaintiff had pain in his pelvis, lower back and left hip. It

was there virtually all the time, but it varied in severity. It was increased by

19 T50 20 T32 21 T32 22 T36



lengthy sitting, standing or walking, and wet weather was bad. He had trouble

with stairs and sloping ground, and felt he had some instability. He could no

longer climb ladders, which affected his ability to do home maintenance tasks

such as cleaning the gutters.

65 The plaintiff had difficulty getting comfortable in bed and that affected his sleep

greatly. He doubted if he ever slept for more than an hour and a half. If he

rolled onto either side, he was woken by pain. Because of these problems, he

bought a latex mattress so that when he tossed and turned, it did not disturb his

wife. Despite the mattress, he was unable to sleep due to his ongoing hip and

lower back pain. His marital relations had been affected by his pelvic injury.

66 The plaintiff was limited in lifting heavy items, and also bending to pick things

up, particularly on the left. He had been told he limped. He had become a very

slow walker.

67 At that stage, the plaintiff tried to do as much as he could, but generally did

things much more slowly than he used to and had to take account of his

limitations. For example, he no longer drove his car into the garage at home

because there was no room to open the car door fully and he could not squeeze

out of the car as he used to.

68 The plaintiff swore a further affidavit on 13 July 2017.

69 The plaintiff continues to suffer from considerable pain and restrictions as a

result of his hip and lower back injury. He has not returned to any meaningful

employment. He is currently unemployed and cannot work as a result of the

restrictions resulting from his hip and lower back condition.

70 The plaintiff continues to rely on significant pain medication, taking about four

Panadeine Forte a day, in particular for the pain in his pelvis and left hip. He

continues to walk with a limp and he is considerably restricted. Although he has

tried to rehabilitate himself as much as possible, including self-funding a gym



membership and also osteopathic treatment, the plaintiff’s pain and restrictions

continue to have a debilitating effect on his life.

71 The plaintiff agreed as Dr Weissman noted in August 2017 he was taking a total

package of Panadeine Forte and Panadol Osteo, four tablets a day. However

he did not want to rely on medication.23 He might have told Mr Kierce in May

this year, he took two Panadeine Forte a day, three to four days in a row.24

72 The days the plaintiff does not take tablets for pain are few and far between.

He goes without medication less than one day a week if he has had a good day.

73 The plaintiff currently sees the osteopath about once every three weeks.

Physiotherapy stopped because the physiotherapist stopped it.25

74 The plaintiff confirmed he continues to walk with a limp and is considerably

restricted. As he deposed in his first affidavit he had been told he limped and

he had become a very slow walker and that is now still the situation.26

75 The plaintiff agreed he told Dr Weissman that he could walk to the shop and

back, a distance of 1.4 kilometres. It took him two to three hours to do so

because he took frequent extended breaks and he also sat on brick walls and

fences. The plaintiff also thought it was possible he told Dr Weissman in May

this year that he could walk for up to 700 metres, but that would usually take

about three hours because he had to stop. When it was suggested this was an

exaggeration, the plaintiff said it took him longer than three hours some days.

He walked with a limp most of the day and most of the time. He still walks

slowly.

23 T17 24 T18 25 T19 26 T19



Surveillance

76 There was a total of 15 days’ surveillance from December 2016, during which

there was surveillance of 81.25 hours and a total video of two hours, 20 minutes.

77 On 21 April and 11 May this year, the plaintiff was shown walking for periods

up to 40 minutes around a local shopping centre. Whilst clearly he was walking

for longer periods than he told doctors he was capable of doing without taking

a break, in my view he was shown moving slowly and at times, limping. The

plaintiff denied he was walking around fairly normally.27

78 The plaintiff walked cautiously. He possibly told Dr Barton he had trouble

standing and walking on heels and toes.28 He could have told Dr Barton he

could not put his weight on his left leg.29

79 It was put to the plaintiff that at one stage in the video he lifted his right leg to

shake under his right shoe and he then put his weight on the left leg.30 The

plaintiff could not tell by looking at the video whether he had done this. He can

take his weight on his left leg. He denied he “put on a show” for Dr Barton

walking slowly from his rooms. He denied he moved around fairly normally in

the film and that there was no apparent limp apart from Dr Barton’s examination

and when he walked up the driveway.31

Capacity for suggested jobs

80 It has been suggested to the plaintiff he could work as a purchasing supply

logistics clerk. However, he did not think he would be successful in getting that

type of work. The role would involve sitting for long periods, which would cause

a significant amount of pelvic and left hip pain. He understood the role would

include customer service and speaking on the phone. He had never done this

27 T27 28 T27 29 T28 30 Film of 4 May 2017 31 T28



type of work, and had actively avoided direct contact with the public because

he did not feel comfortable dealing with people in a customer service

environment.

81 The plaintiff finds working on a computer for long periods very difficult as he has

a glass eye and his vision is restricted. When he is required to work on a

computer for a long time, his vision becomes blurred and he has headaches.

Thus, he has never worked in an office, and he has always worked in physical

type roles.

82 The plaintiff has never had any paid employment that involved working on a

word processor using Microsoft Word or Excel – programs he is unable to

operate. He has basic self-taught computer skills. He is unable to type with any

speed or accuracy. While he can undertake basic typing, using one finger, he

does not believe his typing skills would be at the level required in any type of

professional environment.

83 The plaintiff could not remember saying he had basic to intermediate Word and

Excel skills. Possibly he told IPAR he had advanced emailing skills and that he

could browse the internet.32

84 The plaintiff has also been told he could work as a despatch and receiving clerk.

This is administrative and office type work, which he has never undertaken in

his career. When he had to work on a computer for long periods with the

employer, he had been able to stand up and sit down and move around when

required. He would often have to get up and walk away from the computer

because of increased spinal pain. He did not believe he was overly competent

at this job, and he certainly did not enter the data as quickly as his co-workers.

85 Provided the plaintiff did not have to lift or carry or transfer lower cartons or

items greater than 5 kilograms, the work suggested by IPAR as a despatch and

32 T38



receiving clerk could fit his individual restrictions.33 He would be able to cope if

he was not required to push or pull cartons or items greater than 10 kilograms.34

86 The plaintiff would be able to cope with despatch and receiving jobs if he could

have access to regular postural changes.35

87 The plaintiff does not believe he has the skills to be able to sustain this type of

employment. He is now fifty-six and has never worked in an office, nor does he

believe he would able to retrain in any type of office-based employment.

88 The plaintiff did not think he could work as a scissor lift driver for long, as he

would have to climb stairs. Work as a forklift driver is work he could do and he

had worked as a warehouse shift supervisor until he was made redundant.

89 The plaintiff agreed that pushing and pulling items greater than 10 kilograms is

not required to operate a forklift. He would not have problems doing head

checks because he had no neck problem.36 If squatting was rare, he would be

able to cope with the aspect of forklift driving which required him to assess lower

items of stock on pallets on shelving. Provided he did not have to sit for a long

time or stand for a long time, he would be able to do forklift driving if he had

access to regular postural changes as required, to assure avoidance of

prolonged postures.37

90 The plaintiff could not remember talking to Dr Everitt about working as a forklift

driver but agreed as far as Dr Everitt was concerned, he can drive a forklift. He

did not recall discussing the scissor lift job with Dr Everitt but could remember

talking to IPAR about it.

91 The plaintiff could not recall discussing with Dr Everitt whether he could work

as a machine operator. He agreed Dr Everitt is keen for him to get back to work

33 T54 34 T55 35 T55 36 T53 37 T54



and continues to provide him with certificates.

92 The plaintiff would now be able to cope with courier driving if there was little

squatting involved and there was a 5 kilogram lifting limit and pushing and

pulling limit of 10 kilograms. If he could get out of the car and stretch his legs

that would overcome any problem with prolonged sitting.38

93 The plaintiff could not recall telling IPAR he had basic typing skills. He possibly

told them he knew a lot about warehouse and distribution type work and that he

had always progressed in his role. He would be open to pursuing a range of

employment options within these areas, as long as they aligned with his

physical restrictions and allowed flexibility between sitting and standing.39

94 The plaintiff probably last applied for jobs two weeks ago. He could not

remember the jobs involved or the wage details thereof. IPAR was aware of

these details.40

95 When the plaintiff told Mr Kierce in May this year he had two job interviews that

were unsuccessful, one was for Mountain Harvest for a job in Gembrook

arranged by IPAR. The plaintiff attended the interview but when he told the

employer of his restrictions, ”it all went downhill 41 and they lost interest when

he advised he was on Workcover.42

96 The other interview was with Farm Pride Eggs in Keysborough as a production

supervisor. Again, when the plaintiff told them about his light duties, “that

fizzled.”43 If he had been offered that job, he would have tried to see how he

went and possibly he might be working there today.44

38 T56 39 T39 40 T60 41 T61 42 T63 43 T63 44 T64



97 The plaintiff swore a further affidavit on 1 September 2017 in which he detailed

the effect his injury has on his daily activities.

98 The plaintiff has not had any contact with his children for about three years.

They are presently aged twenty-seven and twenty-one. His son has an

intellectual disability and decided to live with his mother when aged eighteen.

The plaintiff lost contact with his daughter shortly after hosting her twenty-first

birthday.

99 The plaintiff continues to grieve the loss of contact with his children. Because

of this situation, he filled his life with other activities. Work became particularly

important and was a central part of his life. He was passionate about training

and helping casuals maintain their employment. It was rewarding to see them

become competent staff members.

100 The most significant and meaningful loss the plaintiff continues to experience

as a result of his injury is his ability to attend work. This loss has caused him to

become significantly depressed.45

101 The plaintiff’s lifestyle has been significantly impacted by his left hip and spinal

injuries. Prior to the incident, he and his wife had upgraded their caravan

because they planned to travel when he took annual leave and on weekends.

They had a particular passion for camping in remote areas, so he undertook a

significant amount of modifications to the caravan, including putting in further

wiring and solar panels. He also added plumbing so a washing machine could

be operated from the caravan.

102 However, since his incident injuries, the plaintiff has not been able to return to

caravanning. He cannot set up camp because of ongoing hip pain. He cannot

sit for long periods to be able to drive to the locations they used to enjoy, and

he has not been on a caravan trip since.

45 T45



103 On the few occasions the plaintiff has gone on holidays, he is restricted to

staying at resorts, a situation he would never have contemplated previously as

he enjoyed camping in remote areas. He and his wife had made plans to go

around Australia at some point, and those plans have now been lost.

104 The plaintiff confirmed he had gone on a number of overseas trips to various

places in Asia in recent years.46

105 Prior to injuring his left hip and spine in the incident, the plaintiff was extremely

house proud. He decorated his house with Christmas lights each year and took

a particular pride and enjoyment in this task.

106 As a result of his hip injury, the plaintiff cannot climb ladders, or set up the lights.

He now approaches Christmas with dread, rather than looking forward to

decorating the house. He experiences significant distress and does not go

outside at that time of year to avoid seeing other decorated houses.

107 Pre incident, the plaintiff undertook a lot of handyman tasks around the home.

He was particularly passionate about his garden and had built a pond. He had

also developed a system of using rainwater to water the garden. His hip injury

prevented him undertaking this work. The garden has become overgrown and

the plaintiff no longer actively takes care of the fish or cares for the garden.

108 Pre-incident, the plaintiff rode a bike in order to keep fit and he enjoyed being

in the fresh air. He can no longer do so because of his hip pain. His bike is

disused and covered in bird droppings. The loss of his ability to exercise by

bike riding has been an ongoing and significant loss for the plaintiff.

109 The plaintiff is able to drive a car and go shopping on his own.47

110 Pre-incident, the plaintiff had a bird aviary and was passionate about caring for

birds. Since the incident, he no longer has the birds because he is not able to

46 T29 47 T28



look after them. His hip and lower back restrictions made it difficult to carry the

feed containers and water bowls, and he was not able to clean the aviary.

Caring for the birds was important to the plaintiff and his inability to do so has

been a significant loss for him.

111 The plaintiff’s house has a home cinema and he and his wife watched two to

three movies a week prior to the incident. Now, due to his ongoing pain, the

plaintiff cannot concentrate or sit for long. His wife refuses to watch films with

him because he has to constantly stand up and walk around. It has been a

significant loss for the plaintiff that he has been unable to enjoy a movie since

his hip injury.

112 As a result of his ongoing pain and restrictions, the plaintiff has become

significantly depressed. He now sits around the house all day thinking about

what he has lost. He experiences particular depression when his wife goes to

work or when he is reminded of his previous life. By nature, he is a private

person and struggles to talk about his symptoms of depression, and he has only

recently told people how he is feeling.

113 The plaintiff’s symptoms of depression are frightening. He often thinks life is

not worth living. He is also struggling with the ongoing hip pain, and at times

has made positive plans to commit suicide. He has thought of killing himself on

many occasions and made plans in this regard. In his darkest times, he is

resigned to the fact that he wants to take his own life.

114 The plaintiff continues to find it difficult to discuss his symptoms of anxiety and

depression. He has only recently told his wife about his plans and sought

treatment for his symptoms. He has recently been referred to a psychiatrist by

his lawyers. He has suffered in silence with these thoughts, which he did not

have pre incident. This is a new experience and has been absolutely

devastating and frightening for him. He has pulled away from his wife and



friends at times as he believes he has come to the conclusion that his life will

shortly end. This has been a significant concern.

115 The plaintiff continues to experience significant pain and restriction as a result

of the incident injuries to his pelvis, left hip and lower back. His main pain is in

his hips, more the left in the back, a little off centre.48

116 The plaintiff is unable to return to any type of meaningful work, and he has been

unable to find work of any type following the termination of his employment with

the employer.

Summary of plaintiff’s gross earnings from personal exertion

Year ending 30 June Gross income from personal exertion

2009 $ 47,505

2010 $ 49,356

2011 $ 53,116

2012 $ 44,714

2013 $ 52,385

2014 $ 75,238

2015 $ 97,732

2016 $ 48,427

2017 $ 559

Lay evidence

117 The plaintiff’s wife, Maria Johanna Hubeek, swore an affidavit dated 13 July

2017. They have been married since 2008.

118 Mrs Hubeek has observed as a result of the incident injury, the plaintiff

continues to suffer significant pain and restrictions, particularly in his lower back

and left pelvis. She has observed his life has considerably changed as a result

of those injuries.

48 T15



119 The plaintiff has gained a significant amount of weight since the incident

because he is unable to be as active as before. He tries to walk and keep as

active as possible, although he does comfort eat at home at times. As a result,

his appearance has changed.

120 Mrs Hubeek confirmed that post incident, the plaintiff has had problems with

household tasks, gardening, camping and caravanning and intimate relations.

His personality has changed. He has difficulty sleeping.. He e now relies on

Panadeine Forte to reduce the pain. Prior to the incident, he did not rely on pain

medication.

121 Mrs Hubeek has observed the plaintiff attempting to rehabilitate himself and

trying to return to some form of work. She has seen he is only capable of

undertaking light duties since the incident, and this has caused him to suffer

distress and humiliation at times. His inability to work and provide for them both

is a constant source of distress for him. She has observed the plaintiff continues

to suffer from significant pain and restrictions, particularly in his lower back and

also his left pelvis as a result of the work incident.

Treaters

122 The plaintiff was admitted to the Alfred Hospital on 13 April 2011. He then gave

a history of a work accident in which he was crushed by a forklift against a

railing, with an impact to his right hip.

123 X-ray and CT of the pelvis confirmed the plaintiff had sustained an undisplaced

fracture of the left superior and inferior pubic rami and undisplaced fracture of

the left sacral ala.

124 The plaintiff was reviewed by the orthopaedic unit, and conservative

management of the fractured pelvis was recommended. He received analgesia

and was to remain non-weight-bearing on the left leg for six weeks.



125 The plaintiff was monitored in the orthopaedic outpatient clinic where he

attended on 16 May. X-rays showed good position of the fractures, and he was

to continue non-weight-bearing.

126 The plaintiff was next seen on 3 June 2011 when his pain was settling. X-rays

showed the fracture was healing and he was able to commence weight-bearing

as tolerated.

127 The plaintiff was last seen at the Alfred Hospital on 15 July 2011. X-rays

showed that the fracture position was unchanged. He was permitted to mobilise

without restriction, and he was discharged from the clinic.

128 The plaintiff was an inpatient at Epworth Hospital between 18 April and 2 May

2011 for rehabilitation.

129 Jeanet Hofland, consultant in rehabilitation medicine, looked after the plaintiff

in Epworth Rehabilitation between 18 April and 2 May 2011 – she reported that

the plaintiff was very motivated and attended all sessions on a daily basis.

130 The plaintiff presented to his general practitioner, Dr Everitt, on 5 May 2011

regarding the work injury.

131 Noting the treatment undertaken, Dr Everitt reported from 28 October the

plaintiff was able to return to modified duties, not lifting in excess of 5 kilograms.

As of June 2012, he had been involved in a gym program, and the lifting

restriction continued. Dr Everitt then thought the restrictions would continue

long-term, as the plaintiff’s symptoms had been fairly stable for some time.

132 Dr Everitt next reported in May 2015. He then noted the plaintiff was now

stabilised with chronic pelvic pain, especially with cold/raining weather. The

plaintiff had stabilised such that he was fit for modified duties. The lifting

restriction of 5 kilograms was likely to remain indefinitely.



133 Dr Everitt noted the plaintiff had a self-managed gym exercise program and had

not needed prescribed analgesics. As he had been stable for a long period he

had not needed any recent radiological imaging or specialist referral. He noted

the plaintiff had no other significant or relevant unrelated conditions.

134 In October 2016, Dr Everitt requested osteopathic treatment for the plaintiff’s

work-related back pain.

135 When Dr Everitt reported in November 2016, he confirmed the plaintiff’s

condition remained stable as outlined in his earlier reports, with chronic pelvic

pain related to the work injury, and that the plaintiff remained on modified duties

indefinitely.

136 Dr Everitt noted there had been no gap in treatments, as the plaintiff attended

monthly. His treatment was directly related to the incident injury, and Dr Everitt

would expect his treatment plan to continue as previously outlined.

137 IPAR wrote to Dr Everitt in January 2017 advising it had been engaged to assist

with the plaintiff’s rehabilitation, specifically to identify suitable alternative

employment options. Dr Everitt was asked to endorse a number of job options

to assist IPAR in their task.

138 Dr Everitt completed the questionnaire.49 and identified the jobs of warehouse

shift supervisor, forklift driver, scissor lift driver and machine operator light as

suitable for the plaintiff. He thought the jobs of purchasing supply logistics,

despatch and receiving clerk, and courier driver light were unsuitable because

they involved too much sitting. He noted the plaintiff’s main functional

restrictions were “can’t sit long, can’t stand still, struggles to lift, struggles to

sleep so always tired.”

49 Pre-appointment Questionnaire 7 January 2017



139 In his most recent, very short report of 20 April 2017, Dr Everitt confirmed the

plaintiff was fit for modified duties with a lifting restriction of 5 kilograms, and

that was likely to remain indefinitely.

140 The plaintiff had soft tissue treatment at Fountain Gate Physiotherapy from July

to December 2011. He initially presented with a restricted range of left hip

movement. He was then working full-time and had started a gym program. At

that time, he described pain at 2 to 3 out of 10.

141 In the long term, Mr Rodgers, musculoskeletal physiotherapist from that clinic,

expected the plaintiff would not be able to undertake activities involving running,

although if needed, he could run a short distance. He suspected the plaintiff

would have difficulty with prolonged standing, and at work would struggle with

repetitive lifting if required to do so. He assumed the plaintiff had full capacity

to do the job he was employed in when last seen.

Plaintiff’s medico-legal evidence

142 Mr Thomas Kossmann, orthopaedic surgeon, examined the plaintiff in October

2015. At that stage, the plaintiff was continuing to work full-time light duties.

143 The plaintiff then advised he had ongoing lumbar spine pain and pain in the left

side of his pelvis. He could walk, but had problems with sitting, and he had

difficulty sleeping.

144 Mr Kossmann noted the plaintiff suffered a severe crush injury to his pelvis, and

was subsequently diagnosed with multiple fractures. The plaintiff continued to

suffer from ongoing pain issues, in particular his lumbar spine.

145 Mr Kossmann thought the plaintiff’s prognosis was guarded, and that he

required further treatment with pain medication. He considered the plaintiff had

a work capacity, noting he was working full-time light duties in his pre-injury

employment. The plaintiff seemed to cope with that work, however, time would

tell if he could return to full-time duties again.



146 Mr Paul Kierce, orthopaedic surgeon, examined the plaintiff in May 2017.

147 Mr Kierce noted the plaintiff continued to suffer with hip and back pain as a

result of the crushing injury to his pelvis. He was continuing to suffer with pain

in the left buttock, identifying the general area of the left sacroiliac joint, with

pain on the outer aspect of both hips and some pain and pins and needles on

the front aspect of his left thigh, with some radiation of pins and needles on the

inner aspect of his left calf.

148 The plaintiff indicated pain in both hips, which mainly referred to the iliac crest.

There was constant left hip pain, aggravated by walking for more than 20

minutes or 700 metres. His sleep was interrupted by left hip pain after about

five hours. He had left-sided low back pain, which was aggravated by sitting

and standing for 20 minutes. He avoided bending. He walked without a limp,

but tended to take short steps as he shuffled along.

149 Mr Kierce noted there was a significant crush injury to the pelvis and thought it

was also likely the plaintiff aggravated pre-existing lumbar spondylosis.

150 Mr Kierce considered the plaintiff was no longer fit for heavy work and was only

fit for sedentary type work for the foreseeable future, noting he does have

computer skills.

151 In Mr Kierce’s view, the plaintiff is likely to suffer bilateral hip pain for the

foreseeable future, as well as chronic low back pain related to the incident. He

is permanently unfit for any manual handling work and only fit for sedentary type

work. There was no physical therapy indicated, or operative therapy. However,

Mr Kierce thought it most important that the plaintiff lost weight.

152 Dr Joseph Slesenger, occupational physician, examined the plaintiff in May

2017.

153 The plaintiff advised he then had ongoing low back pain that was constant and

moderate in severity, and aggravated by activities such as sitting or standing



for prolonged periods. He had ongoing severe pain in the left hip, aggravated

by activity, radiating to the left sacroiliac joint. He had moderate to severe

ongoing pain in the right hip.

154 In addition to the pelvic fracture, Dr Slesenger diagnosed mechanical injury to

the lumbar spine, aggravation of degenerative disease of the lumbar spine, and

chronic pain disorder, noting a psychological impairment which was outside his

area of expertise.

155 Taking into consideration the plaintiff’s current lumbar spinal and bilateral hip

impairment, Dr Slesenger thought the following restrictions were appropriate-

no sitting or standing more than 10 minutes, no push/pull, carry or lift over 5

kilograms, no bending, limited walking, sedentary duties only (and stand as

required) and car park facilities and toilet facilities to be located close to the

work station.

156 Taking into account the plaintiff’s past occupation, his current symptoms and

functional limitations, his age of fifty-six, his current residence at Narre Warren,

his focussed occupational experience, Dr Slesenger thought the plaintiff has a

residual capacity for work with these restrictions: limiting his return to work to

four hours a day, four days a week.

157 Dr Slesenger noted that the plaintiff’s employment prospects will be heavily

influenced by the transferability of his skills and experience, and that in turn will

be heavily influenced by his computer skills, about which Dr Slesenger had

some reservations, noting they were self-taught and untested in a commercial

environment.

158 Dr Slesenger thought the plaintiff could do the warehouse shift supervisor role

within the restrictions outlined. However, given his experience of workers in

similar roles, there may be aspects of these tasks outside the plaintiff’s capacity

limits, and Dr Slesenger recommended a worksite assessment.



159 Dr Slesenger advised the plaintiff against returning to forklift driving as there

was a risk that he would be exposed to vibratory forces and may be required to

perform some manual handling tasks. He also advised the plaintiff against

returning to work as a scissor lift driver, as the job tasks would requiring lifting

up to 9 kilograms (medium lift requirements) and were likely to be outside the

plaintiff’s capacity limits.

160 Dr Slesenger advised the plaintiff against returning to work as a machine

operator, as the job tasks were likely to require repetitive bending and twisting,

with either hopper feeding or decanting products or pallet stacking. Further, he

noted the majority of workers in this role are required to set machinery and

intervene in breakdowns. The job required prolonged sitting and standing, and

working in restricted spaces.

161 Dr Slesenger thought the plaintiff could work as a purchasing supplier logistics

stock clerk and despatching receiving clerk. However, some tasks may be

outside the plaintiff’s capacity limit, and he recommended a job specific worksite

assessment.

162 Dr Slesenger advised the plaintiff against returning to work as a courier driver,

as the job tasks require medium lifting capacity, also noting the plaintiff’s driving

limitations.

163 Dr David Weissman, consultant psychiatrist, examined the plaintiff in August

2017.

164 In terms of history, the plaintiff told Dr Weissman that it took him two and a half

to three hours to walk to the shops and back, a round trip of 1.4 kilometres. It

took him this long because he took frequent extended rests and he also sat on

brick walls and fences.

165 When the plaintiff was asked about his current psychological and emotional

symptoms and progress, he was not particularly responsive to the questions.



He said he was not depressed per se. He said he did not understand questions

about his self-esteem and confidence, and what he thought about the future.

166 Dr Weissman concluded there was no clear pre-existing or unrelated psychiatric

condition or impairment. He thought, overall, the plaintiff was suffering from

slight residual traumatisation features directly due to the incident. However, he

did not have a full-blown chronic post-traumatic stress disorder (“PTSD”). He

thought the plaintiff was suffering from a mild chronic adjustment disorder with

anxious predominantly frustrated mood, consequential to the loss of his

employment in late May 2016, and the original pain injury’s limitations and

restrictions dating back to the incident.

167 Dr Weissman did not think the plaintiff required psychiatric or psychological

counselling or anti-depressant medication. He thought the issue of work

capacity should be better addressed by an orthopaedic surgeon and

occupational physician, noting that on purely psychiatric grounds, there was no

actual psychiatric incapacity for work. However, he noted that when one

considers the definition of suitable employment, including the plaintiff’s relative

lack of transferable skills outside of manual duties, his presumed capacity for

only sedentary duties now, and his advancing age of fifty-six, his time away

from work (it is more than a year now); the plaintiff is going to experience

difficulty finding so-called suitable paid employment on the open labour

marketplace.

168 Overall, Dr Weissman thought the plaintiff was currently suffering from only a

mild group of work-related psychiatric conditions and mental injury. His overall

psychiatric prognosis was fair.

The Defendant’s medical evidence

169 Certificates provided by Dr Everitt set out the plaintiff is fit for modified duties

with the only work restriction listed being no lifting more than 5 kilograms.

Medico legal



170 The plaintiff was examined by Mr Bruce Love, orthopaedic surgeon, in

November 2016.

171 The plaintiff then complained of pain present daily, for which he took Panadeine

Forte.

172 Mr Love thought the plaintiff appeared to have principally suffered a crush injury

of the pelvis and the injuries appeared to include the sacroiliac joints and pubic

rami, with a probable aggravation of degenerative spondylosis of the lumbar

spine. It was unlikely there would be any significant change in the plaintiff’s

condition in the foreseeable future.

173 Mr Love noted the plaintiff’s current physical condition is that he appears

significantly over an ideal body mass index and has significant impediment of

function due to pelvic pain and gait disturbance. He considered the plaintiff’s

residual disability was of a moderate severity.

174 Mr Love had not judged the plaintiff to have a pain disorder or significant

functional overlay. He thought his symptoms were organically based and was

not able to ascribe the plaintiff’s symptoms to any psychological condition.

175 In Mr Love’s view, if the plaintiff had pre-injury duties available to him, he would

be capable of performing the tasks he was doing at the time of his redundancy.

If he was to gain employment, it would need to be such where he could choose

his posture at work, where he was not required to engage in prolonged standing,

walking or repeated bending and stooping, and not being expected to lift more

than the lightest of loads.

176 Mr Love noted that there had been no rehabilitation since the early post-

operative period, and it was now more than four years since the incident. It was

improbable that rehabilitation would have a great role to play, with the exception

that encouragement with weight loss would be in the plaintiff’s interest.

177 Mr Graeme Doig, orthopaedic surgeon, examined the plaintiff in March 2017.



178 The plaintiff then complained of ongoing stiffness with lower back and pelvic

pain.

179 Mr Doig noted the plaintiff sustained multiple pelvic fractures through the left

side as a result of the crush injury, and had now developed secondary arthritis

at the sacroiliac joints and lumbosacral spine.

180 Mr Doig thought the plaintiff was not fit for pre-injury status, but had a current

work capacity. He was fit for alternative duties with a 10 kilogram lifting, pushing

and pulling restriction, with limited bending, twisting and squatting through the

spine. He would need breaks from prolonged sitting, standing and driving.

181 In Mr Doig’s view, there did not appear to be anything other than the work injury

affecting the plaintiff’s recovery. His treatment was appropriate and he was

imply using analgesics on an as-required basis.

182 Dr David Barton, occupational physician, examined the plaintiff in May 2017.

183 The plaintiff advised that while he was continuing to work, his problem was fairly

stable. Over the last year, he felt, because he had been less active, his

symptoms had worsened. He described three specific sites of pain, with two

being around the lateral aspect of the left and right elbow, and one close to the

left sacroiliac joint. The left-sided pain was constant and made worse with

sitting and standing for more than 20 minutes. The pain was less severe around

the right hip. He had twinges, with symptoms shooting down the left leg at times.

184 The plaintiff acknowledged that were he not to have been made redundant, he

would still be doing his current supervisory job. He reluctantly acknowledged a

capacity to do similar work in the logistics and warehouse area. He felt the 5

kilogram limit would need to be maintained and advised he had had some

contact with the rehabilitation provider.



185 Dr Barton noted the plaintiff described fairly persistent and troublesome

symptoms. Dr Barton was not aware of any other factors playing a part in the

plaintiff’s condition.

186 Dr Barton accepted there is both an organic basis to the pain and some

functional component. He noted on examination there were several findings

that did not fit with a straight forward physical problem, and suggested a degree

of overlay was playing a part – a discrepancy between limited straight leg raising

and postures noted at other times, an increase in reported symptoms with axial

loading, and marked tenderness made little medical sense considering the time

to recover since the original injury.

187 Dr Barton believed the plaintiff had physically mostly recovered from the pelvic

fracture. He would accept there may be some minor, ongoing symptoms related

to the original injury. Accepting the nature of the original injury and the plaintiff’s

subsequent symptoms, Dr Barton believed the plaintiff possibly has a partial

incapacity for all of his pre-injury duties.

188 Dr Barton, however, believed the plaintiff has a capacity for work, and noted he

was able to return to work for a considerable period of time after the injury until

retrenched. He believed the plaintiff could complete the various jobs in the

IPAR report. He accepted that getting in and out of the car may present with

some occasional difficulties, but he did not believe this was a contraindication

to the plaintiff doing that work. He considered the plaintiff could work full-time.

Vocational evidence

189 Occupational Rehabilitation specialist Ms Burmeister provided a job-seeking

services report on behalf of IPA in January 2017.

190 It was noted the plaintiff reported he had a vast range of knowledge within

warehouse and distribution-based environments, and he always progressed in

his role. He reported he would be open to pursuing a range of employment



options within these areas, as long as they aligned within his physical

restrictions and allowed flexibility between sitting and standing.

191 The plaintiff advised he had self-taught computer skills with basic to

intermediate Word and Excel skills, advanced emailing skills, internet browsing

and basic typing skills.

192 Mrs Burnside identified the following as suitable employment options –

warehouse supervisor, forklift driver, scissor-lift driver, and machine operator

(light – food), purchasing, supply, logistics (stock clerk, despatch and receiving

clerk) and courier driver light).

193 These jobs were again mentioned in a Job Task Analysis Report of April 2017.

194 It was noted the plaintiff agreed with all the employment options, though he was

unsure as to the suitability of a courier driver role, and its suitability would be

impacted by the specific work requirement.

195 In the forklift driver role, the average weekly full-time income was $981,

despatch and receiving clerk $1,100, and courier driver light $1,017.

196 IPAR produced a resume on the plaintiff’s behalf and applied for a job with

Nulac on 8 March 2017.

197 On 31 May 2017, IPAR assisted in locating and applying for the following roles:

vendor scheduler FMCG, Six Degrees Executive Pty Ltd; supply planner,

Vertical Talent.

198 On 22 June 2017, two further roles were located and applied for, with two on 6

July, one on 12 July and three on 20 July 2017.

199 There was a further Job Seeking Review Report compiled by IPAR on July 2017

which mentioned the Mountain Harvest job application.



Termination of employment

200 By letter dated 25 May 2016, the plaintiff was advised by the employer that his

position of leading hand was redundant.

201 The employer advised that it had considered and explored redeployment

options in preference to the separation of the plaintiff’s employment, but a

suitable alternative position had not been found. This meant his employment

would separate on the grounds of redundancy effective from 25 May 2016.

202 An employee termination report set out that the plaintiff received a net

termination payment of $106,937, with sick leave payments of $14,501.

203 Pay records indicated that the plaintiff worked regular overtime, with seven

hours’ overtime in the week he last worked before taking the redundancy.

Defendant’s lay evidence

204 Craig Matthews is currently employed by the employer as customer service

manager and managed the work site from February 2013 to March 2016.

205 When Mr Matthews commenced in the role of site manager, he was not aware

of any restrictions on the plaintiff’s duties. After about 12 to 18 months, he was

told the plaintiff was working on restricted duties due to his prior workplace

accident.

206 Mr Matthews understood the only restriction on the plaintiff’s duties was that he

could not lift more than 5 kilograms in accordance with the certificate of capacity

signed by his doctor.

207 Mr Matthews understood the plaintiff performed restricted duties until March

2016. He believed the plaintiff’s duties included:

(a) loading and unloading trucks using a forklift;

(b) delegating work to other staff members;



(c) cycle counting;

(d) computer work (transport bookings, COR declaration forms,

allocating work via Swim (AS/400 system);

(e) assisting stock investigations via Swim;

(f) training of staff;

(g) transferring of stock between two buildings (forklift);

(h) case picking – monitored to ensure no lifting over 5 kilograms.

208 For the period Mr Matthews managed the Clayton site, he was not aware of any

specific time restrictions enforced in relation to the plaintiff’s use of manual

handling equipment. No issues were raised by the plaintiff to himself or site

supervisors at that time.

209 Mr Matthews and the plaintiff would have had intermittent catch-ups on the

plaintiff’s overall health and condition. The plaintiff was constantly reminded out

of care to ensure he worked within the restricted duties outlined in his certificate,

and to advise in the event there were any tasks he was not able to perform.

210 In response to the plaintiff’s affidavit, Mr Matthews could not confirm either way

if the plaintiff had elected to manage his time in specific increments on manual

handling equipment.

211 Cycle count duration would be varied and would have likely exceeded 30

minutes when operating under normal circumstances.

212 Computer work was typically required based on activity and/or when support

was required. During Mr Matthews’ time managing the site, the plaintiff was

called on at times for covering, and he also voluntarily assisted afternoon

administrative staff in the compiling of the next day’s despatch time slots.



213 Stock investigations would require a varied level of inquiry at times to complete.

The plaintiff was considered to be very proficient in the process, often

pinpointing root causes and suggesting corrective actions.

214 Mr Matthews confirmed the duties the plaintiff was performing were a real job.

He was a team leader for the afternoon shift and his contribution was valued.

The plaintiff was well regarded by him.50

215 Mr Matthews confirmed that there were pay rises, according to overtime worked

and an EBA.51 Many people were made redundant at the same time as the

plaintiff.52

216 In cross-examination, Mr Matthews confirmed he was responsible for the

management of the site and also directing the leading hands on what to do

day-to-day. He agreed he would be concerned about the work ability of anyone

was suffering from any form of disability.53

217 Mr Matthews confirmed that 30-40 per cent of the role of a leading hand would

be operating a forklift and they would need two feet to do it.54

218 Mr Matthews agreed the plaintiff had a fair bit of autonomy in terms of choosing

what tasks he would do to fill up his day, and he was left to his own devices as

long as he was putting in a full day’s work.55

219 Mr Matthews did not think slip sheeting was a predominant part of the plaintiff’s

shift and was not aware this task was not being done by him. He could not say

whether or not the plaintiff was doing pallet stacking “out the back”. He

disagreed the plaintiff was doing a light duties leading hand role but agreed he

was doing the role with a 5kg lifting restriction.56

50 T83 51 T84 52 T85 53 T85 54 T92 55 T97 56 T98



220 Typically speaking, a leading hand would not pick a lot, and that task was

typically delegated to agency employees.57 Five to ten per cent of the leading

hands’ time would be spent picking and packing, and the plaintiff was ruled out

of any heavy lifting over 5 kilograms.

221 The plaintiff’s direct supervisor was Steven O’Brien, who is no longer with the

employer and would have left some months after the site closed down.58

Overview

222 There is no dispute the plaintiff suffered a crush injury to his pelvis in the incident

on the said date. X-ray and CT scans of the pelvis confirmed he had sustained

an undisplaced fracture of the left superior and inferior pubic rami and

undisplaced fracture of the left sacral ala.

223 Further, as Mr Love and others have described, the plaintiff suffered an

aggravation of degenerative spondylosis in the lumbar spine.

224 The consensus of medical opinion is that the plaintiff’s present condition has a

substantial organic basis. There is little suggestion otherwise save for a brief

comment by Dr Barton of some inconsistent findings on examination and some

psychological issues noted by Dr Slesenger.

Credit

225 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:59

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

226 Counsel for the defendant submitted the plaintiff’s affidavit evidence about his

depressive condition was bewildering,60 and ultimately he should be seen to be

57 T99 58 T101 59 (2010) 31 VR 1 at paragraph [12] 60 T106



an unreliable witness61 as he did not report severe psychiatric symptoms to Dr

Weissman and they were not noted by his general practitioner.62

227 Further, it was submitted it was strange the plaintiff could not remember details

of a job application two weeks ago.63

228 Particular reliance was placed on the history given by the plaintiff to Dr

Weissman and Dr Slesenger of the time it took him to walk a relatively short

distance, a situation it was submitted was inconsistent with the plaintiff’s level

of activity shown on film.64

229 These and other minor examples were relied on by counsel for the defendant

who submitted that credit remained a factor in terms of assessing the

consequences under both heads.65

230 As I indicated during the hearing, whilst the plaintiff was shown on film walking

around shopping centres for extended periods, he was not walking particularly

freely and at times he was moving slowly and limping a lot. The plaintiff was

subject to extraordinarily thorough investigation which in my view showed little

inconsistent with the plaintiff’s evidence of his pain and resultant restrictions. 66

231 I accept that the plaintiff is not a man who discusses his emotions easily and he

is not particularly articulate. This explains his failure to mention his deteriorating

psychological condition to his doctor. As counsel for the plaintiff submitted, the

plaintiff is a man who answers questions he is asked and is not a fellow who

talks about himself much.67

232 I found the plaintiff to be a truthful witness who gave a very credible account of

his ongoing problems since the incident, his difficulties obtaining further

61 T107 62 T108 63 T108 64 T109 65 T111; evidence about LinkedIn - T53 and recreational use of computers 66 T130 67 T131



employment and the significant interference with a range of recreational

activities as a result of his injury.

233 There was no real challenge to the plaintiff’s evidence as to the interference

with daily and recreational activities deposed to.68 His wife confirmed these

restrictions in her affidavit. She was not cross examined.

Pain

234 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon, the evidentiary

basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff

says about the pain, both in court and to doctors. 69

235 The plaintiff has deposed to and consistently complained to doctors of

considerable pain and restriction in his hips, particularly the left, and low back.

The pain is in the general area of the left sacroiliac joint, with pain on the outer

aspect of both hips and some pain and pins and needles on the front aspect of

his left thigh, with some radiation of pins and needles on the inner aspect of his

left calf.

236 The plaintiff continues to have difficulty bending and is unable to lift anything

other than very light weights. His sitting and standing tolerances are limited by

his pain. At times, he limps. Sleep is interrupted by left hip and back pain.

237 The plaintiff requires ongoing significant pain killing medication taking up to four

Panadeine Forte per day.

238 As Dodds- Streeton JA said in Kelso v Tatiara Meat Company Pty Ltd,70 in a

case where chronic pain was a prominent feature -“the endurance of permanent

daily pain requiring frequent medication, must, according to ordinary human

experience, raise a real prospect of a ‘very considerable’ consequence.”

68 T129 69 (Supra) at paragraph [11] 70 (2007) 17 VR 592 at para 199



239 Further, in terms of treatment, the plaintiff self funds a gym program and

continues to attend an osteopath for treatment. He also had physiotherapy at

an earlier stage.

240 A range of activities enjoyed by the plaintiff pre incident such as camping and

caravanning, gardening and his home cinema are either no longer available to

him or are now of limited enjoyment as a result of his incident injuries.71

241 Whilst all doctors say agree the plaintiff has a capacity for work,72 the

consensus of medical opinion is that as a result of his ongoing pain and physical

restrictions, the plaintiff no longer has the capacity to do unrestricted heavy

work. Since the injury, a 5 kg lifting limit has been imposed and he has had

continuing difficulty with prolonged sitting and standing.

242 In my view, this work restriction resulting from the incident injury is a serious

consequence, as are the other consequences referred to above when

considered in their totality.

243 I accept that the plaintiff’s home life and work life pre- and post-accident was

chalk and cheese 73 and that there was a dramatic change in both his work and

home life as a result of his incident injury.74

Loss of earning capacity

244 Having satisfied the narrative requirements to obtain leave in relation to loss of

earning capacity, the plaintiff must also establish that –

(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent

or more – s134AB(38)(e)(i); and also

(b) after the date of hearing, the relevant loss of earning capacity will continue

permanently – s134AB(38)(e)(ii).

71 T124 72 T111 73 T126 74 T127



245 The measurement of loss of earning capacity is set out in paragraph (f) which

requires a comparison between:

(i) “without injury” earnings; and

(ii) “after injury” earnings.

246 The former must be calculated by reference to the six-year period specified in

s134AB(38)(f).

247 “Without injury” earnings consist of the gross income (expressed at an annual

rate) that the worker was earning or was capable of earning from personal

exertion or would have earned or would have been capable of earning from

personal exertion had the injury not occurred.

248 It is to be calculated by reference to that part of the period within three years

before and three years after the injury as most fairly reflects the worker’s

earning capacity.

249 The plaintiff carries the onus of proof in relation to economic loss and

particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and

(g) therein. I am therefore required to determine a “without injury” earnings

figure, and submissions were made by counsel in this respect.75

250 Counsel for the defendant submitted that the figure that most fairly reflected the

plaintiff’s without injury earnings was his earnings from the 2012/13 financial

year of $62,614 gross or $1,204.11 gross per week. Sixty per cent thereof is

$722.47.76

251 No alternative figure was suggested by counsel for the plaintiff.77

75 Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph [70] 76 T117, Roleff v Chubb Insurance Company of Australia Pty Ltd (2011) VSCA 21 at paragraphs [23] and

[4] 77 T132



252 Counsel for the defendant submitted the plaintiff had failed to establish the

requisite 40% loss.

253 It was submitted the plaintiff had demonstrated a capacity for full time work

whilst in his post incident job with the defendant. Had he not been made

redundant, the plaintiff would have continued in this role which it was submitted

was a real, valuable job as Mr Matthews confirmed.78

254 Post incident, the plaintiff worked full time with regular overtime, working 7

hours overtime in the week before his employment ceased. He did not take

much in the way of sick leave and his wages substantially increased over the

period of employment.79

255 It was submitted this was not a case where the plaintiff was being targeted as

lots of workers were made redundant at the Clayton site as Mr Matthews

confirmed.80

256 The plaintiff is still applying for work and it was submitted he has a reasonably

formidable skill set, with basic to intermediate computer skills and a knowledge

of warehouse and distribution jobs and experience in training others.81

257 It was submitted there had been a proper basis provided for the suggested jobs

of forklift driver, despatch and receiving clerk and light courier driver.82

258 The only restriction that had ever been placed on the plaintiff’s duties in the

years after the incident was a 5 kg lifting limit.

78 T114, Poholke v Goldacres Trading P/L & Victorian Workcover Authority (2016) VSCA 232 at para

[143]. 79 T115 80 T115 81 T116 82 Richter v Driscoll (2016) VSCA 142; T122



259 It was submitted Dr Barton’s line of reasoning that the plaintiff had a capacity

for the suggested jobs on full-time basis should be preferred to Dr Slesenger’s

inexplicable limiting of hours to 16 per week.83

260 Further, Dr Everitt, the general practitioner, thought four of the seven jobs were

appropriate on a full-time basis.84

261 On the basis of Dr Barton’s view, largely shared by Mr Doig and Mr Love who

thought the plaintiff was fit for full time light work, it was submitted the plaintiff

could not establish the requisite loss.

262 There was no evidence of a deterioration in the plaintiff’s condition following the

termination of his employment to explain why he could not continue to perform

duties of a similar, valuable nature to those undertaken whilst working for the

employer post incident.85

263 Working full time in all of the three suggested roles, the plaintiff would earn in

excess of $742 per week- forklift driver $981, despatch and receiving clerk

$1,100, and courier driver light $1,017.86

264 Counsel for the plaintiff submitted the plaintiff’s case was pretty simple. He was

doing modified work post-incident that would not make him employable on the

open market, and he is now unsafe and unfit to do work, particularly forklift.87

265 Further, the plaintiff is not work shy as he tried for the job as a courier soon after

he left the other job. He was unable to continue for more than 9 days because

of the heavy lifting that was involved and difficulties getting in and out of the

car.88

83 T121 84 T119 85 T121 86 T123 87 T124 88 T125



266 I accept that the plaintiff was only able to stay at work because the work was so

modified and he had devised his own system.89 Whilst Mr Matthews described

the plaintiff performing a number of roles, on close examination, these were of

a limited nature and carried out over short bursts.

267 Obviously the lifting of restriction of 5 kilograms is a very significant one and

impacted on all the plaintiff’s activities.90 Further, he was only able to drive a

forklift for only 20-30 minutes and then required a 15 minute break. His use of

the computer was limited both by his lack of computer skills and also his inability

to sit for prolonged periods as he described, confirmed by Dr Everitt in January

this year.

268 I accept the plaintiff’s evidence that he knew of no one who had performed that

role before and that there is no evidence that there is a like role in similar terms

on the open market.91

269 Whilst the plaintiff agreed he could do a number of the suggested jobs with

appropriate restrictions as to lifting and prolonged postures, I accept that he

would not be able to reliably and consistently attend the workplace on a regular

basis to perform those given the severity of his ongoing pain. Further, once at

work, he would need to regularly move around and would be significantly limited

in the tasks he could perform in any event due to the 5 kilogram lifting restriction.

He would not have the luxury of being able to self pace his work as was the

case with his duties at the employer prior to the termination of his employment.

270 The plaintiff is now aged 56. He has no clerical experience and his computer

skills are not such that he would make him an attractive employment candidate.

Despite undertaking retraining and cooperating fully with IPAR, he has not been

successful in obtaining further suitable employment.

89 T126 90 T125 91 T127



271 As counsel for the plaintiff submitted, the plaintiff is restricted in what he does

at home, he is restricted in his sleep, and accepting he is a credible witness, it

just does not make sense that he has a capacity to earn in excess of the

relevant figure.92

272 Taking into account all the evidence, I am satisfied that the plaintiff does not

have the capacity to earn in excess of $742 per week and has accordingly

suffered the requisite loss.

273 I am also satisfied this impairment is permanent, the plaintiff having

experienced ongoing pain and restriction for nearly seven years without any

significant improvement.

274 I am also required to consider issues of retraining and rehabilitation pursuant to

ss(g).

275 In light of my findings as to the plaintiff’s impairment and his incapacity for

employment, I am satisfied there is no rehabilitation or retraining that would be

appropriate to be undertaken by him which would alter the situation that he has

a permanent loss of earning capacity of 40 per cent or more. As rehabilitation

and retraining have nothing to offer the plaintiff in terms of his capacity for

employment, the plaintiff has satisfied the requirements of s134AB(38)(g).

276 If a worker satisfies the test laid down by the Act in relation to loss of earning

capacity, then he or she is at large to make a claim for damages, ie both for

pain and suffering and loss of earning capacity.93

277 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for

both pain and suffering and loss of earning capacity.

- - -

92 T133 93 See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [147] and Advanced Wire & Cable

Pty Ltd & Victorian WorkCover Authority v Abdulle [2009] VSCA 170

in the county court of victoria revised at melbourne … · vcc:lm/dc/as/lw/lp 3 judgment hubeek v...

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