serious injury - injury to right shoulder - loss of …...2017/05/12 · mr sabbadin said that the...

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IN THE COUNTY COURT OF VICTORIAAT MELBOURNECOMMON LAW DIVISION

SERIOUS INJURY LIST

ADRIAN SABBADIN

V

HowzAT INDUSTRIES PTY LTD

JUDGE

WHERE HELD

DATE OF HEARING

DATE OF JUDGMENT

CASE MAY BE CITED As

MEDIUM NEUTRAL CITATION

S u byectCatchwords

Legislation CitedCases Cited

Revised

(Not) RestrictedSuitable for Publication

HER HONOUR JUDGE TSALAMANDRIS

Melbourne

9 May 2017

12 May 2017

Sabbadin v Howzat Industries Pty Ltd

120.71 VCC 556

Case No. C1-16-03162

ACCIDENT COMPENSATION

Serious injury - injury to right shoulder - loss of earning capacity - painand sufferingSection 134AB(37) of the Accident Compensation Act 4985Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 ; Guthae vCampion Education 44ust) Pty Ltd; Nicholson v Vitrorian WorkCoverAuthority [201 61 VsCA 146; Harris v DJD Earth Moving Pty Ltd [2016]VsCA I 88; Poholke v Goldacres Trading Pty Ltd 120161 VsCA 232Application SuccessfulJudgment

REASONS FOR JUDGMENT

APPEARANCES

Plaintiff

For the Plaintiff

Defendant

For the Defendant

Counsel

COUNTY COURT OF VICTORIA250 William Street. Melbourne

Mr T Tobin SC with

Mr R Forsyth

Mr C O'SUIlivan

Solicitors

Patrick Robinson & Co

Thornson Geer

HER HONOUR:

Introduction

I Mr Sabbadin is a 43-yearold inari who claims that, on 3 June 2014, he suffered

an injury to his right shoulder, when he stepped into an unguarded hole while

working as a plasterer for the defendant.

2 Mr Sabbadin claims to have suffered serious consequences as a result of this

injury, both in respect of his pain and suffering and also in respect of his loss of

earning capacity. In order for Mr Sabbadin to be entitled to claim common law

damages, the impairment of his right upper limb must satisfy paragraph (a) of

the definition of "serious injury" contained in SI34AB(37) of the Accident

Compensation Act 1985. Mr Sabbadin also claimed that he suffers a severe

psychiatric condition that satisfies paragraph (c) of the definition of "serious

injury" contained in SI34AB(37). However, this aspect of his claim was only

referred to briefly by his Counsel, who sought to rely predominantly upon his

physical injury.

3 The defendant accepts that the pain and suffering consequences resulting from

Mr Sabbadin's right shoulder injury satisfy the definition of "serious injury ', but

disputes that he satisfies the requisite loss of earning capacity test. The

defendant contends that, in assessing Mr Sabbadin's loss of earning capacity

claim, it is appropriate to consider his average earnings from his business in the

two years prior to the accident, whereas Mr Sabbadin seeks to rely upon the

income he earned as a worker, on the day that he was injured.

4 Only Mr Sabbadin was called to give evidence, and he was cross-examined.

Also in evidence were medical reports and other material, including an affidavit

from his wife. I have read these tendered documents, together with the

transcript of the proceedings. I shall riot refer to all of that material in the course

of this judgment, but rather to those parts of the evidence and reports which I

consider necessary to give context to and explain the conclusions reached in

*

r ,,

VCC:LMJUDGMENT


I

5 For reasons I will explain below, I am satisfied that Mr Sabbadin has suffered

the requisite loss of earning capacity test, such that he should be granted leave

to commence common law proceedings.

Relevant background

6 Mr Sabbadin is married and has two sons, aged I O and 5 years,

7 Mr Sabbadin completed high school to Year I I, before undertaking a four-year

plastering apprenticeship. Once qualified, he was employed as a plasterer for

various companies. In 2005, Mr Sabbadin established his own business, which

he continued to operate until the time of his accident. Mr Sabbadin said he

undertook all the quoting and plastering work for the business , while his wife

completed all the bookkeeping and administrative work. Mr Sabbadin said he

worked as a subcontractor for builders and insurers, and that he also did jobs

he found advertised in the local paper.

8 Mr Sabbadin said that he offered plastering work to Mr Scott Barr, the owner of

the defendant company, from time to time when Mr Barr's business was quiet,

and that Mr Barr would, in turn, offer plastering work to Mr Sabbadin when his

business was quiet. On such occasions, Mr Sabbadin would invoice the

defendant for his labour, at either an hourly or a daily rate.

9 Prior to suffering his Injury, Mr Sabbadin enjoyed spending time with his family,

including playing football and basketball with his young sons. He also enjoyed

motorbike riding, cycling and hunting. Mr Sabbadin said that he had been in

good health and that he had no prior problems with his right shoulder. He said

he had suffered some anxiety when his eldest son was born with serious health

problems, but that his mental health had improved when his son was given a

positive diagnosis, such that he was feeling well at the time of the accident.

The injury and its consequences to Mr Sabbadin

to Mr Sabbadin suffered injury to his right shoulder on 3 June 2014, whilst working

my judgment.

VCC:LM 2 JUDGMENT


at a property in Strathmore. At the time, he was employed by the defendant as

a plasterer. Mr Sabbadin said that, to enable the provision of air-conditioning

ducts in the upstairs extension of the house, there were some holes in the floor.

While lifting a piece of plasterboard, Mr Sabbadin stepped into one of the holes,

causing him to lose his balance, and to strike his right shoulder on the nearbywall.

41 Following the accident, Mr Sabbadin attended a physiotherapist, who referred

him to general practitioner, Dr Owen Latimer. Dr Latimer was concerned that

Mr Sabbadin had suffered a rotator cuff injury, and referred him for an x-ray and

ultrasound.

42 On 5 June 2014, an x-ray and ultrasound were performed on Mr Sabbadin's

right shoulder. The ultrasound demonstrated a full thickness tear of the inid-

supraspinatus tendon, as well as a linear tear of the infraspinatus.

Dr Latimer then referred Mr Sabbadin to orthopaedic surgeon, Mr Brendan Soo.

On I9 September 2044, Mr Soo performed a right shoulder arthroscopy and

subacromial decompression.

Unfortunately the surgery was unsuccessful, and Mr Sabbadin continued to

have difficulties in his right shoulder, such that Mr Soo arranged for a further

MRI scan to be performed.

On 30 March 2015, an MRI scan was performed on Mr Sabbadin's right

shoulder. It demonstrated a full thickness rupture of the supraspinatus tendon,

a partial thickness tear of the deep fibres of the subscapularis and a superior

labral tear extending into the posterior labrum.

Mr Soo then recommended that further surgery be performed. On 6 March

2015, Mr Sabbadin underwent a revision right shoulder arthroscopy,

subacromial decompression, and a biceps, tenodesis and rotator cuff repair.

Following that second surgery, Mr Sabbadin received physiotherapy treatment,

13

,

44

,

15

16

17

VCC:LM3 JUDGMENT


,

.

as well as a cortisone injection into his right shoulder, performed by Associate

Professor Simon Bell.

18 As Mr Sabbadin's symptoms persisted, a further MRI scan was arranged for 27

May 2015. It demonstrated a full thickness tear of the intraspinatus tendon,

with severe atrophy of the infraspinatus muscle. The report said the findings

were suggestive of a degree of instability and a Hill-Sachs deformity,

Mr Sabbadin then began to develop symptoms of Depression, as a

consequence of the two unsuccessful surgeries, together with his ongoing pain

and inability to return to work. In September 2015, he was referred to

psychologist, Dr Lynette Kramer, whom he initially saw twice a month, but who,

more recently, he has seen on a monthly basis.

On I March 2046, a further MRI scan was performed on Mr Sabbadin's right

shoulder. It demonstrated severe supraspinatus and infraspinatus muscle

atrophy, retraction of the muscu!otendinous junction, and mild subacromial and

subdeitoid bursitis.

19

20

21 Mr Sabbadin was then reviewed by Mr Soo, who was of the opinion the recent

MRI findings were such that Mr Sabbadin should consider further surgery. He

then subsequently referred Mr Sabadin to orthopaedic surgeon, Associate

Professor EUgene Ek, for an opinion as to whether or not Mr Sabbadin was a

suitable candidate for tendon transfer surgery.

In May 2016, Associate Professor Ek explained this surgery to Mr Sabbadin,

who ultimately decided not to undergo such a procedure, in circumstances in

which he had been advised the likelihood of him receiving any improvement in

the range of motion in his shoulders to be small. Mr Sabbadin said that whilst

he contemplated the surgery for a period time, he has now decided firmly

against it, on the basis it may make things worse.

In December 2016, Mr Sabbadin was referred to pain management specialist,

22

23

VCC:LM4 JUDGMENT


Dr Bruce Mitchell. He considered it appropriate for Associate Professor Ek to

review Mr Sabbadin for a second time, However, as Mr Sabbadin has decided

not to undergo any further surgery, he has not returned to see Associate

Professor Ek.

24 Mr Sabbadin continues to see his general practitioner, Dr Latimer, who

prescribes him Mobic for pain, Ternazepam to help with sleep and Duloxetine

for Depression.

Mr Sabbadin said that the pain in his right shoulder and upper arm is constant,

but that it varies with what he is doing, and becomes more severe if he performs

tasks requiring him to move his arm away from his body.

In re-examination, Mr Sabbadin was asked to demonstrate the range of

movement in his right arm. He was extremely restricted in the elevation and

abduction of his shoulder, and grimaced whilst attempting to move his right arm.

In addition, Mr Sabbadin nursed his right wrist with his left hand for much of his

evidence, which he said helped alleviate some of the pain.

Mr Sabbadin said that he can still drive his car, but that doing so increases his

shoulder pain, such that he can only drive for short periods of time. For

example, on family holidays to A1bury and EChuca in 2016, Mr Sabbadin said

that he was able to drive into the city, but that his wife drove thereafter due to

his increased shoulder pain

Mr Sabbadin said that walking can aggravate his pain, as the involuntary

movement of his arms results in increased pain. He also said that sitting still

for long periods causes him pain in his shoulder, which is then referred down

into his spine.

Mr Sabbadin said that lying on his front or his right side causes a flare-up in his

shoulder pain, such that he wakes at least once every night. He said that as a

result, he is then tired during the day and has to rest.

25

26

27

.

28

29

VCC:LM5 JUDGMENT

Sabbadin v Howzat I ridustries Pty Ltd

.

30 Mr Sabbadin then described a normal day as follows: He usually wakes in pain

between I. 00am and 3.00am and takes a Mobic tablet. He then struggles to

go back to sleep, so often sits on the couch and massages his shoulder to ease

his pain. In the morning, he walks or drives his children to school. He might

then come home and wipe the kitchen bench, but will otherwise lie down to rest,

as he is tired and in pain. He then does very little until school pick-up, at which

time he collects the children and helps with their homework, On bad days he

will take a second Mobic at lunchtime, and on really bad days, he will take a

third Mobic between 5.00pm to 6.00pm. He also uses Nurofen Plus throughout

the day to help ease his pain. When he goes to bed, which, if he is especially

tired or in pain, can be as early as 7.00pm, he takes Ternazepam and

Duloxetine.

34 Mr Sabbadin said that he remains very depressed as a result of his inability to

recover from his injury, coupled with his inability to resume work and support

his family.

In November 2016, Nabenet arranged for Mr Sabbadin to complete a basic

computer course, through which he learnt how to turn on the computer, how to

send emails and how to search the internet. However, Mr Sabbadin said he is

still not sufficiently skilled to edit Word documents or to use an Excel

spreadsheet. He said the course went for three hours, three days a week, and

that for much of that time, he was not on a computer, but was simply required

to listen. . Mr Sabbadin said that after about five minutes of using a keyboard,

he suffers increased pain in his right shoulder requiring him to take a break for

I O to 20 minutes. He says he has similar problems when he is writing for more

than five minutes.

32

33 Mr Sabbadin's wife, Patricia, also supplied an affidavit in support of her

husband's claim. She confirmed the restrictions he had deposed to, and stated

that she had observed such restrictions to adversely affect Mr Sabbadin's ability

to participate in social, recreational and family activities.

VCC:LM 6 JUDGMENT

Sabbadin v Howzat Industries Ply Ltd

Mr Sabbad'in's loss of earning capacity claim

34 The defendant does not dispute that Mr Sabbadin suffered a significant injury

to his right shoulder and that, despite two surgical procedures, he continues to

suffer ongoing pain and restrictions. The defendant also accepts that as a

consequence of his right shoulder injury, Mr Sabbadin is unable to return to his

pre-injury employment as a plasterer.

35 The issue in dispute therefore, is what, if any, suitable employment Mr Sabbadin

is reliably capable of performing, and for how many hours a week. Despite Mr

Sabbadin hoping to obtain work, Mr Tobin submitted that the extensive physical

restrictions imposed on him by of his right shoulder injury are such that he is

effective Iy totally incapacitated. In the alternative, Mr Tobin submitted that, at

best, Mr Sabbadin would only be capable of part-time employment, given his

pain levels worsen with activity.

36 To succeed in this application, Mr Sabbadin has the on us of satisfying me that,

as at the date of hearing, as a consequence of his right shoulder injury, he has

sustained a loss of earning capacity, which produces a financial loss of 40 per

cent or more. In making this assessment, I must consider what Mr Sabbadin is

capable of earning, whether in suitable employment or not.

37 The definition of suitable employment is an objective test which looks at the

worker's current suitability for work, taking into account matters such as the

worker's age, education, experience, and whether or not the work is a

reasonable distance from the plaintiff's place of residence. '

38 In undertaking this task, I must compare what the worker is currently earning,

or capable of earning, in suitable employment, with his pre-injury earning

capacity. To determine his pre-injury earning capacity, I must decide which of

the following scenarios most fairly reflects the worker's earning capacity, had

,

.

VCC:LM

See Bam/on Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at t251 and t281.

7 JUDGMENT


.

he not suffered the injury:

(a) The gross income the plaintiff earned (or was capable of earning) from

personal exertion in the three years before the injury;

(b) The gross income the plaintiff would have earned (or was capable of

earning) from personal exertion in the three years after the Injury, if the injury

did not occur. 2

39

40

41 Mr Tobin submitted that, as Mr Sabbadin was working with the defendant on

the day he suffered the injury the subject of this claim, his earning capacity

should be assessed by the gross wage he was earning in such employment.

His claim form stated this amount to be $45 per hour, and said that he worked

40 hours a week, equating to a gross weekly wage of $1,800.

Mr O'SUIlivan, however, submitted that as Mr Sabbadin normally worked for his

own business and not for the defendant, his without injury earning capacity

should be assessed upon his earnings in the two years prior to this accident.

Mr Sabbadin earned the following income from his business in the three years

prior to his accident:

42

43

Year Gross Income

2041-2012 $187,266 $65,598

2012-2013 $1 77,472 $46,052

2013-2014 $192,449 $53,550

Mr O'SUIlivan relied upon a decision of his Honour Judge Coish in the matter of

Guthae v Campion Education ,AUSt) Pty Ltd. ' In that case, the plaintiff had

suffered an Injury during the course of his employment and, subsequent to that

injury, had established a gardening maintenance business for which he was

44

Taxed Income

2

aSI34AB (38) co2009 VCC 11 41

VCC:LM8 JUDGMENT


self-employed. It was necessary for Judge Coish to assess the plaintiff's after

injury earnings, and in particular, whether or not such earnings should be the

total income generated by the business, without any deductions, or whether

such earnings should be assessed after the deduction of expenses, but before

tax. Judge Coish ultimately concluded that it should be the plaintiff's pre-tax

earnings, less expenses.

Mr Tobin referred me to the Court of Appeal decision in Nicholson v Victorian

WorkCover Authority. ' In that case, the Court of Appeal considered whether

or not a worker's entitlement to allowances for expenses such as travel and

clothing, should be included as part of the worker's gross income, even if they

are deductable for taxation purposes. The court concluded that, in assessing

the worker's earning capacity, such allowances should be included as part of

the worker's gross income.

The fact situation in this case is somewhat different, however, in that whilst Mr

Sabbadin ordinarily earned his income through his own business, he was

employed from time to time as a worker. Of critical significance in this case, is

that Mr Sabbadin was employed by the defendant as a worker within the

meaning of the Accident Compensation Act, on the day he suffered his injury.

His entitlements are governed by that Act, and I consider, as a matter of logic,

that his earning capacity should also be measured upon the remuneration he

was receiving at that time, In accepting the job with the defendant, Mr Sabbadin

demonstrated that he had an earning capacity of $4,800 per week. Having

demonstrated such a capacity, and, given that he was injured doing such work,

I consider Mr Sabbadin's claim for loss of earning capacity should be

determined upon that remuneration basis, The matters raised by Mr O'SUIlivan

may have relevance at the time a damages claim is assessed, but I do not

consider it a proper basis upon which to now assess this claim.

Therefore, in proceeding with this application, I accept a without injury earning

45

46

.

4

47

VCC:LM

t201 61 vscA I 46

9 JUDGMENT


I

figure of $1,800 gross per week is the figure which most fairly reflects Mr

Sabbadin's earning capacity.

48 In assessing Mr Sabbadin's claim for loss of earning capacity, I am obliged to

do so realistically, by reference to his physical limitations and by reference to

what might, or might not, amount to "suitable employment" in the foreseeable

future. ' This is a test of physical capacity, not employability, and it involves a

consideration of what Mr Sabbadin might, in the foreseeable future, be able to

do on a regular and consistent basis, allowing for such improvement as might

be thought likely or possible after undertaking vocational education. 6

49 Section 134AB(38)(g) of the Act places an on us on Mr Sabbadin to make

reasonable attempts to participate in rehabilitation or retraining, and states that

in assessing such a claim, I should consider what Mr Sabbadin would be

capable of earning if such rehabilitation or retraining had been undertaken.

Medical evidence from Mr Sabbadin 's treating doctors and medico-legal experts

50 Mr Soo was of the opinion that Mr Sabbadin could not return to his pre-injury

duties as a plasterer, due to persistent weakness in his right shoulder.

However, Mr Soo was also of the opinion that Mr Sabbadin could undertake

work as a sales representative, supervisor, or in education.

51 Dr Latimer stated that, given his numerous skills and attributes, Mr Sabbadin

would be capable of performing a wide variety of alternative jobs, including

those in a supervisory, training, or management role. He also noted that a

return to paid employment would likely alleviate Mr Sabbadin's financial stress

and have a positive impact upon his self-esteem and mood. However, Dr

Latimer ultimately stated that "these are decisions for him to make when he is

ready to do so".

52 Mr Sabbadin's solicitors arranged for him to be examined by orthopaedic

5

6See Harris v DJD Earth Moving Pty Ltd 1201 61 VsCA 188 at t481Ihid at t491

VCC:LM10 JUDGMENT


surgeon, Mr Gerald Moran, in February 20,7. In his report dated 20 March

2007, Mr Moron noted Mr Sabbadin complained of constant right shoulder pain,

as well as a restriction in his right shoulder movements. Mr Moron was of the

opinion Mr Sabbadin could not return to work as a plasterer, and that, given he

still had very restrictive right shoulder movement, he would require retraining in

order to obtain suitable employment.

Mr Sabbadin's solicitors also arranged for him to be examined by orthopaedic

surgeon, Mr Garry Grossbard, in February 2017. In his report dated 7 March

2017, Mr Grossbard noted Mr Sabbadin wakes at least once per night from

pain. It was noted that his range of motion was significantly reduced and, if

anything, was getting worse. Mr Grossbard noted Mr Sabbadin said he could

drive for about to minutes at a time and that he has pain with walking.

Mr Grossbard was of the opinion Mr Sabbadin had suffered an injury to his right

shoulder which involved tear of the supraspinatus and, to a lesser extent, the

infraspinatus muscle. He considered that Mr Sabbadin suffered capsulitis, and

that he had also developed a significant psychological reaction, with a

suggestion of an abnormal pain response to his condition.

53

54

,

55

,

Mr Grossbard was of the opinion Mr Sabbadin "may have a prospect of

returning to some form of work, either in the teaching or sales areas related to

his past plastering trade",' but acknowledged that his ongoing pain and inability

to use his arm would likely present difficulties.

Defendant's vocational assessment report and medical evidence

The defendant arranged for Mr Sabbadin to undergo a Vocational Assessment

with Mr Nicholas Janides from Healthe Work. In his report dated I I April

2017, Mr Janides noted Mr Sabbadin stated that his pain is aggravated by

prolonged driving, sleeping incorrectly or with inappropriate lifting. It was further

noted that Mr Sabbadin needed to alter his position at random in order to relieve

56

57

7

VCC:LM

Footnote ?

11 JUDGMENT


pain levels.

Mr Janides noted Mr Sabbadin's self-reported functional tolerances, which

involved lifting of less than two kilograms, sitting and standing for less than ten

minutes, and exercising care when bending and squatting. it was also noted

that he was only able to drive locally, that he feels he is forgetful, and that his

concentration and memory is impaired.

Mr Janides then identified the following five employment options, which he

considered Mr Sabbadin was capable of performing:

co Project manager

This would require Mr Sabbadin to complete a 29-week course in Certificate N

in Building and Construction at Holmes glen TAFE. The physical demands of

the job were defined as light, which can include exerting up to 9 Kilograms of

force occasionally, or 4.5 kilograms of force frequently, or, if lifting weights is

negiigible, then it may also include walking or standing to a significant degree,

or sitting most of the time;

(ii)

The physical demands of this job are described as light to medium, with possible

lifting of up to 23 kilograms;

(iii) Estimator in the plastering and rendering field

This requires a diploma-level qualification as well as good computer literacy

skills;

(iv) Insurance assessor

This job is also described as having light physical demands;

(v) Storage consultant

58

59

Maintenance coordinator

VCC:LM 12 JUDGMENT


This job does not require any additional qualifications or retraining and the

physical demands are described as sedentary. Predominantly, it involves

standing and interacting with customers, and may also involve some

keyboarding and telephone work.

60 The defendant relied upon a medical report it had obtained from orthopaedic

surgeon, Dr Gale Curtis, dated 6 June 2016. Dr Curtis noted that Mr Sabbadin

suffered pain and stiffness in his right shoulder, with easy fatigue, He was of

the opinion that Mr Sabbadin was restricted in his ability to drive a motor vehicle

and to catch public transport. Dr Curtis did not consider Mr Sabbadin had the

capacity to return to his pre-injury duties and hours, but thought that he did have

some work capacity. He stated that Mr Sabbadin should be able to find suitable

vocational alternatives, provided he avoided any excessive or overhead work.

61 In December 2046, the defendant arranged for Mr Sabbadin to be examined by

orthopaedic surgeon, Mr Rodney Simm. He noted that Mr Sabbadin suffered a

painful right shoulder dysfunction following a rotator cuff tear, for which he was

treated unsuccessful Iy with two attempted surgical repairs. On clinical

examination, he noted that there were clinical signs of painful supraspinatus

dysfunction and dysfunction of the infraspinatus, but a reasonable preservation

of function of the subscapularis, He noted that all movements were inhibited by

what appeared to be severe pain, and that movements were associated with

He considered that Mr Sabbadin would not benefit fromovert pain behaviour.

any further surgery and that he was best to adapt to the chronic pain, whilst

limiting the function of his shoulder. He considered that Mr Sabbadin will

continue to experience painful restriction of shoulder movement, with

associated limitations on his function in the short to long term.

.

62 Mr SImm considered Mr Sabbadin has a current work capacity, but noted that

it was limited, and that he would be confined to work using his right arm for light

activities close to his body and below shoulder height. He considered Mr

Sabbadin was capable of further vocational training and rehabilitation. Mr SImm

VCC:LM13 JUDGMENT


also considered Mr Sabbadin had the capacity to undertake alternative

employment, provided such jobs were confined to light use of his right arm,

close to his body and below shoulder height.

In a supplementary report dated 20 April20i 7, Mr Simm was asked to comment

on the specific jobs identified by a vocational assessor. Mr Simm commented

as follows:

63

(a) Project manager.

This would involve Mr Sabbadin undertaking a Certificate N in Building

and Construction over a 29-week period. Provided he undertook such

training, Mr SImm considered that Mr Sabbadin had the physical capacity

to undertake such work;

(b) Maintenance coordinator

As Mr Sabbadin does not have the physical capacity to perform tasks

such as changing light bulbs, painting doors and cleaning public areas,

Mr Simm considered this job to be unsuitable;

Estimator in the plastering and rendering field

Provided he improved his keyboard skills and obtained further training,

Mr SImm considered that Mr Sabbadin had the physical capacity to

perform such work;

(c)

(d) Insurance assessor

After he obtained further training, Mr Simm was of the opinion Mr

Sabbadin was physically capable of performing such work;

Storage consultant

As this job did not require any further retraining, Mr Simm considered Mr

Sabbadin had the physical capacity to undertake such work, provided it

(e)

VCC:LM14 JUDGMENT


was confined to "light keyboarding and telephone work".

64 The defendant also arranged for Mr Sabbadin to be examined by specialist in

occupational medicine, Dr Chris Baker, in February 2017. Dr Baker was of the

opinion Mr Sabbadin had suffered permanent damage to his right shoulder joint

and associated soft tissues, and that he will remain with marked restriction of

function of the right shoulder, together with pain in the shoulder.

65 Dr Baker considered Mr Sabbadin had restricted use of his right arm when

raised to shoulder level, but thought he had reasonable use of the right arm at

bench or waist height. He considered Mr Sabbadin was a suitable candidate

for vocational redirection, and was of the opinion that clerical and administrative

tasks would be appropriate.

66 In a supplementary report dated I9 April 2007, Dr Baker stated that in his

opinion, Mr Sabbadin had the capacity to work as a project manager,

maintenance coordinator, estimator and storage consultant. However, Dr

Baker considered the role of an insurance assessor to be unsuitable, as it may

involve Mr Sabbadin potentially accessing certain parts of buildings, which may

cause problems with his right arm.

Mr Sabbadin's capacity for suitable employment after reasonable efforts to be

retrained

67 In seeking leave to commence a damages claim for loss of earning capacity, I

must be satisfied that Mr Sabbadin has suffered the requisite loss, after taking

into account his capacity for work after all reasonable attempts to participate in

rehabilitation and retraining. '

Whilst he accepted that the on us was on Mr Sabbadin, Mr Tobin submitted that

the defendant's failure to provide Mr Sabbadin with any significant retraining

had negatively impacted upon his ability to be retrained. In July 2015, Mr

68

8

VCC:LM

SI34AB (38) (9)

15 JUDGMENT


Sabbadin was told that he would never return to work as a plasterer, at which

time psychiatrist, Dr Duke, urged the defendant to provide rehabilitation and

retraining. Notwithstanding such advice, nothing was done until late 2016 when

Mr Sabbadin was given a short computing course, leaving him with only a very

basic level of computer skills.

69 Mr O'SUIlivan stated that there was further retraining Mr Sabbadin could

undertake to enhance his employment prospects, in particular, the 29"week

Certificate N course in building. Mr Sabbadin said that financially, he could not

afford to do undertake course. Mr O'SUIlivan, however, submitted that this was

an unreasonable response given the on us imposed on Mr Sabbadin under the

Act.

70 I accept that it would be a significant financial impost upon Mr Sabbadin and his

family for him to undertake a 29-week course whilst receiving no income

support. However, notwithstanding any financial difficulties, I also have

significant reservations as to Mr Sabbadin's ability to successfully complete

such a course. I accept Mr Sabbadin's evidence that he suffers increased pain

in his shoulder after typing or writing for more than five minutes. I also accept

that he is very tired as a consequence of his broken sleep and medication, I

accept that his pain and lethargy would increase should he be required to attend

the 29-week course on a regular basis.

74 I am not satisfied Mr Sabbadin is capable of working as a projector manager. I

have reservations as to whether he could complete the Certificate N course. If

however he did obtain this qualification, I consider that in overseeing jobs, he

would likely be required to do some occasional light lifting, which is beyond his

capacity, I accept he would have difficulties driving to work sites unless close

to his home, and that he would have difficulties spending anything more than

short periods of time on a computer. In view of the above, I do not consider this

to be suitable employment.

VCC:LM16 JUDGMENT


72 I am not satisfied Mr Sabbadin is capable of working as a maintenance co-

ordinator, as the job could involve lifting of up to 23 kilograms. As was noted by

Mr Simm, Mr Sabbadin would not be capable of changing light bulbs and

painting doors. In view of the above, I do not consider this to be suitable

employment.

I am not satisfied Mr Sabbadin is capable of working as an estimator, I accept

his evidence that he would not be able to do the measuring associated with this

role, as using a tape measure would cause him an increase in shoulder pain. I

also accept he would have difficulties driving to different locations in Melbourne.

I note that this role requires Diploma qualifications, and I have significant

reservations as to whether Mr Sabbadin could complete a diploma, given his

limited ability to use a keyboard or to write. In view of the above, I do not

consider this to be suitable employment.

I am not satisfied Mr Sabbadin is capable of working as an insurance assessor.

Dr Baker considered this job unsuitable, as it may require Mr Sabbadin to

access parts of buildings using ladders which was inconsistent with his

restrictions. I agree, I also accept Mr Sabbadin would have difficulties driving

to different locations in Melbourne to assess the properly damage. In view of

the above, I do not consider this to be suitable employment.

I am, however, satisfied Mr Sabbadin is capable of working as a storage

consultant. This is consistent with his level of education, requires no further

training, and involves sedentary work. It involves only some keyboarding skills,

which I consider to be consistent with his restrictions. If he was able to obtain

such employment relatively close to his home, then it would not involve

excessive driving.

Notwithstanding his ability to work as a storage consultant, however, I have

significant reservations as to whether Mr Sabbadin could work reliably full-time

as a storage consultant. I consider that, at best, he has the capacity to

73

74

,

75

76

VCC:LM17 JUDGMENT


undertake such work on a part-time basis only. I accept that he often has to

rest during the day, due to significant pain and tiredness from lack of sleep. I

consider he may be able to manage part-time employment, consisting of

reduced hours on alternating days, or limited hours for five days per week. I

consider Mr Sabbadin's maximum work capacity in such suitable employment

would be five hours per day, five days per week.

77 I note that the hourly rate for a storage consultant is from $21.00 to $26.08 per

hour' At the highest rate of pay, for 25 hours per week, I am satisfied that Mr

Sabbadin could earn up to $652 per week.

78 Given my acceptance that Mr Sabbadin's pre-injury earning capacity is $1,800

per week, he has satisfied me that, even if he is able to obtain part-time

employment as a storage consultant, such employment will not result in him

earning more than $1,080 per week.

Conclusions

79 The Court of Appeal recently observed in Poho/ke v Goldacres Trading Pty Ltd '

that an assessment as to whether or not a plaintiff has established the requisite

loss of earning capacity need not be determined solely by reference to the

medical evidence but, instead, "on a full and proper consideration of all the

evidence in the application. "10

80 Having considered all the evidence, and accepting Mr Sabbadin as an honest

and reliable witness, for the reasons detailed above, I am satisfied that as a

consequence of his right shoulder injury, Mr Sabbadin suffers the requisite 40

per cent loss of his earning capacity. I am also satisfied this loss will be

permanent.

81 In addition to his claim for a serious injury for the physical impairment to his

right shoulder, Mr Sabbadin also persisted with his claim that he suffered a

severe psychiatric condition. In his closing submission, Mr Tobin briefly referred

9

10[2016] vscA 232Ibid at t, 311 (footnote omitted)

VCC:LM18 JUDGMENT

Sabbadin v Howzat Industries Ply Ltd

me to the medico-legal reports of psychiatrists, Dr M J Nathar, and Dr Michael

Duke. Both psychiatrists recognised that Mr Sabbadin had suffered a significant

psychiatric response to his physical injury, an opinion that was supported by the

report of his treating psychologist, Dr Lynette Kramer. However, there is no

evidence that the plaintiff's psychiatric condition permanently incapacitates him

for work. Conversely, the doctors are hopeful that Mr Sabbadin's psychological

condition will improve, if he is able to obtain suitable work with a reasonable

Income.

82 When he spoke about the factors that restricted him in studying or obtaining

work, Mr Sabbadin referred to his pain and levels of exhaustion, but made no

reference to his psychiatric condition. In such circumstances, I am not satisfied

that Mr Sabbadin's psychiatric injury can be described as severe.

I will make the consequent orders.83

VCC:LM19 JUDGMENT


serious injury - injury to right shoulder - loss of …...2017/05/12 · mr sabbadin said that the...

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