Event and Time
Event Description
- Application for leave to bring proceedings for damages under section 134AB(16)(b) of the Accident Compensation Act 1985.
- The plaintiff, employed from October 1999 until November 2014, claims damages for loss of earning capacity due to shoulder injuries suffered during employment, particularly from August 2011 and 6 September 2009.
Application and Claims
- The plaintiff seeks leave specifically for loss of earning capacity; pain and suffering claims have already been conceded.
- Focus on the impairment of the dominant right shoulder.
- The plaintiff must prove that the impairment is permanent and that loss of earning capacity is 40% or more.
- The evidence presented includes affidavits, medical reports, and testimonies.
Judicial Decisions
- Reference to the principles established in Barwon Spinners Pty Ltd & Ors v Podolak and Richter v Driscoll.
- The judge concluded that the plaintiff's shoulder impairment is permanent and that he has a significant loss of earning capacity, thus granting leave to proceed with a claim for damages.
Dispute Points and Legal Basis
Dispute Points
- Plaintiff's Claims:
- Argues that his shoulder injuries, primarily the right shoulder, result from his employment tasks involving heavy lifting and repetitive motion. - Presents a history of medical treatment and surgeries that failed to restore full functionality. - States that he is unable to perform previous work duties or find suitable alternative employment.
- Defendant's Arguments:
- Contends that the plaintiff has not sufficiently proven the extent of his impairment and its impact on his earning capacity. - Claims there may be potential for rehabilitation and retraining leading to suitable employment.