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SERIOUS INJURY LIST Case No * IN THE COUNTY COURT OF VICTORIA Revised AT WARRNAMBOOL Not Restricted COMMON LAW DIVISION Suitable for Publication SERIOUS INJURY LIST Case No. C1-17-00528 DAVID SHANE PAULKE Plaintiff V SIMPSON PERSONNEL PTY LTD Defendant JUDGE HER HONOUR JUDGE K L BOURKE WHERE HELD Warmambool DATE OF HEARING 28 and 29 November 2017 DATE OF JUDGMENT 21 December 2017 CASE MAY BE CITED As Paulke v Simpson Personnel Pty Ltd MEDIUM NEUTRAL CITATION 120.7jVCC 1957 REASONS FOR JUDGMENT Subject ACCIDENT COMPENSATION Catchwords Serious injury - impairment to the spine - pain and suffering - loss of earning capacity Legislation Cited Accident Compensation Act I 985, SI34AB(, 6)(b), (37) and (38) Cases Cited Barwon Spinners Ply Ltd & Ors v Podo/ak (2005) 14 VR 622; Grech v Onca AUStrafia Pty Ltd & An or (2006) 14 VR 602; Arisett Australia Ltd v Taylor 120061 VsCA I 71 ; Sednaoui v Am ac Corrosion Protection Pty Ltd [2017] VsCA 66; Transport Accident Commission v Zepic t20131 VsCA 232; Meadows vLibhmore PtyLtd [2013] VsCA 201; Petkovskiv Gaffetti [1994] I VR 436 ; A G Staff Pty Ltd v Finpowicz; Am old Ribbon Co Pty Ltd v Filly?owlcz (2002) 34 VR 309; Haden Engineering Pty Ltd v MCKinnon (201 0) 34 VR I ; Kelso v Tati^ra Meat Co Pty Ltd (2007) , 7 VR 592; ACir v Frosster Pty Ltd [2009] VsC 454; Advanced Wire & Cable Pty Ltd & Victorian WorkCover Authority v Abdul/e [2009] VsCA I 70 Judgment Leave granted to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity. APPEARANCES Counsel Solicitors For the Plaintiff Mr I Fehring with Stringer Clark Mr G Pierorazio For the Defendant Mr W R Middleton QC with Thornson Geer Ms D Manova COUNTY COURT OF VICTORIA 250 William Street, Melbourne , HER HONOUR: This is an application for leave to bring proceedings for damages pursuant to SI34AB(46)(b) of the Accident Compensation Act I 985 ("the Act") for injury suffered by the plaintiff in the course of his employment with the defendant on 2 February 2012 ("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 SI 34AB(37) and (38). 3 The plaintiff brings this application PUTSuant to clause (a) of the definition of "serious injury' to be found in SI34AB(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 spine. 5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages. 6 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future. 7 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 SI34AB of the Act impose specific burdens in relation to a claim for loss of earning capacity. 8 By SI34AB(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. JUDGMENT VCc:LM/DC1As/LW/SNAs/LM/As Paulke v SImpson Personnel Pty Ltd . .9 I am required to consider the consequences to this particular plaintiff, viewed objective Iy, 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. - 10 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. 11 Subsections (38)(e) and co recite the formula by which loss of earning capacity is to be measured. 12 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established, 13 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases. 14 I have applied the principles identified by the Court of Appeal in Bam/on Spyhners Pty Ltd & Ors v Podolak' and Grech v Onca Australia Pty Ltd & An o12 in reaching my conclusions, 45 The plaintiff relied upon two affidavits and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material, The Plaintiff's evidence re The plaintiff is presently aged sixty-three, having been born in Holland in April 1954. He lives with his partner Christ ine Dobson in Portland. I7 Having completed Year 9, the plaintiff was employed in farm labouring activities for five or six years' He then worked on fishing boats around Australia. He did (2005) 14 VR 622 2 (2006) 14 VR 602 2 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v Simpson Personnel Pty Ltd , mining jobs, including work in Western Australia and the Northern Territory for a number of years, 18 The plaintiff had suffered from depression in the past and was on a Disability Support Pension for a number of years, He believed he was on the pension in 2009-204 0 for between a year and eighteen months. He was then under the care of Dr Maher's in Ballarat, 3 19 The plaintiff had right knee surgery performed by Mr Mitchell in 2009, having hurt his knee while at work at PFD Food Distributors. That injury settled down after surgery, and the plaintiff was able to return to his job as a delivery driver. 20 The plaintiff believed that whilst at Dr Maher's clinic, he also had treatment for his neck, middle back, thoracic spine and also lower back. 4 24 The plaintiff mentioned nothing about any previous back problems, or about any treatment for his neck or middle lower back in his first affidavit as he always went back to work. He did not really know why he did not mention prior problems with his spine "he just went through what he had to do". 5 22 The plaintiff also made no mention of these issues in his second affidavit as he did not believe it was 'pertinent' to this application. He would have told doctors about it, having told Mr Gardiner. 6 23 The plaintiff confirmed he told Mr Gardiner on examination in 2016 of a back problem at Laininex ten years earlier, following which he thought his problem resolved after about a month. He went straight back to work, He had not had regular problems since, only three or four times. 7 24 The plaintiff did not know he had to mention pre~incident back pain in his affidavits. He denied he was deliberately concealing these matters from this 3 Transcript ("T") 9 4 T, O 5 T, O 6 T, O 7 Tli 3 JUDGMENT VCc:LM/DC1AS/LW/SNAS/LM/As Paulke v SImpson Personnel Pty Ltd . application. ' He did not know he was meant to supply his whole medical history or any medical history. ' He did not know why he mentioned his right knee in his affidavit. ID 25 The plaintiff agreed he had made a right knee claim and a claim in relation to his thumb in 2002. He denied it was a fabrication when he said to Mr Gardiner that he was completely ignorant of his WorkCover situation. He denied he knew a lot about WorkCover. " 26 The plaintiff was asked about his September 2000 claim form for an injury the previous month. " He confirmed he answered "No" to the question whether he had had any pain or disability in the area of his present injury/condition because he had not had any previous pain or disability with this employer. t3 27 The plaintiff was then asked about his 2002 claim form relating to a lifting strain to his lower back in November that year. This time he answered "Yes" to the same question and added "around two and a half years ago whilst working for Laininex". The plaintiff did not know why this time he gave this answer ~ "probably because it was close to the other injury". 14 28 The plaintiff was then asked about an incident in December 2009, where he had serious pain in his upper back, twisting, lifting and restacking boxes. in the incident report he wrote "back" not ticking the "low back" box. He was again off work as a result of this lifting and twisting incident. 15 8 T82 9 T84 aO T85 it Ti5 12 T, 5 13 T, 6 14 T, 7 15 Tt8 4 JUDGMENT VCc:LM/DC1As/Lw/SNAs/LM/As Paulke v SImpson Personnel Pty Ltd 29 In the Claim Form relating to the 2009 incident, the plaintiff described thoracic sprain in upper back. He ticked "No" to any previous problem. He did not know why he did so because he obviously had had that pain before. ,6 * 30 The plaintiff was then asked about a number of attendances on his general practitioners before the incident.
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