On 18 December 2015, Her Honour Judge Campton of the County
Court delivered judgment in the matter of Wishart v Brambles
After considering the surveillance, medical and vocational
evidence available, the County Court dismissed the Plaintiff's
serious injury application. Sparke Helmore represented the
Defendant in this matter.
Wishart v Brambles highlights the importance of
surveillance to demonstrate consistent activities over consecutive
days to defeat the usual "good days and bad days"
explanation for observed activities on an individual day. The case
also highlights the importance of medical and vocational assessment
evidence to support the contention that the Plaintiff had a
capacity for lighter alternative employment.
The Plaintiff sought serious injury certification for both pain
and suffering and loss of earning capacity damages. He relied, in
particular, on a back injury sustained in October 2009 in the
course of his employment as a pallet repairer. He returned to
modified duties and last worked in November 2010.
During April and May 2011, he moved house from Deer Park to
Ballarat; a distance of approximately one hour.
The Plaintiff relied on his utility motor vehicle for the
purpose of the move, which involved numerous trips to and from Deer
Park and Ballarat. The Plaintiff lifted, manoeuvred and moved
numerous household items alone, which included corrugated iron
sheeting, a television, a refrigerator, a barbecue, a single sofa
and a double sofa. The move involved consistent physical
activities, often over consecutive days.
In addition to the surveillance, the contention that the
Plaintiff had a capacity for alternative employment was supported
by medical and vocational evidence.
The Court referred to the Plaintiff's affidavit material and
evidence that he suffered from constant back pain, which was
aggravated by prolonged sitting, standing or walking. The video
evidence taken in April and May 2011 demonstrated the Plaintiff
could perform these sorts of movements with absolutely no sign of
any impairment or restriction.
Under cross-examination, the Plaintiff's treating general
practitioner agreed that "good and bad days" would not
explain the Plaintiff's presentation over the "moving
house" period. He advised that the Plaintiff's back was
much better than what he had observed on examination. Also, the
video surveillance of the Plaintiff exhibited a much better use and
movement of the back than he had ever anticipated.
Judge Campton was of the view that the Plaintiff's condition
may be described as "significant or marked" but, relevant
to the test for serious injury, it could not be described as
Regarding loss of earning capacity, there was vocational
assessment evidence that the Plaintiff could perform alternative
duties. Although the Court accepted the Plaintiff could not return
to his pre-injury employment, the Court was of the view that the
Plaintiff could return to full-time light employment. The Court
considered that the level of physical activity shown in the video
surveillance supported a finding that the Plaintiff was capable of
full-time light work. Therefore, the Plaintiff failed to establish
the requisite 40% loss of income earning capacity relevant to the
test for serious injury from a loss of earning capacity
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