IN THE COUNTY COURT OF VICTORIA
AT WARRNAMBOOL
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List		

Case No. CI-21-01011

CHRISTOPHER MURRAY WILDE	Plaintiff	
		
v		
		
SOUTHCORP WINES PTY LTD 
(ACN 000 009 763)	Defendant	

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JUDGE:	HIS HONOUR JUDGE O’NEILL	
WHERE HELD:	Warrnambool (via Zoom hearing)	
DATE OF HEARING:	28 September 2021	
DATE OF JUDGMENT:	13 October 2021	
CASE MAY BE CITED AS:	Wilde v Southcorp Wines Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1504		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury application – injury to spine in discrete workplace incident  – pain and suffering consequences clearly “very considerable” – whether and to what extent the plaintiff suffered a loss of earning capacity – capacity for a range of light and sedentary jobs – experience in manual, unskilled jobs only – meaning of “the worker’s place of residence” as referred to in the definition of “suitable employment” in s3 of the Workplace Injury Rehabilitation and Compensation Act 2013 – whether 40 per cent loss of earning capacity
Cases Cited:	State of Victoria v Rattray [2006] VSCA 145; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013	
Judgment:	Leave granted in respect to pain and suffering and loss of earning capacity damages.
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr J P Brett QC with 
Mr G Pierorazio	Stringer Clark	
			
For the Defendant	Ms B Myers with
Mr T Storey	Thomson Geer	

HIS HONOUR:

Preliminary
1	Mr Christopher Wilde’s work background is mainly in manual, unskilled employment.  He left school at aged sixteen and has worked in abattoirs, as a loom operator in a weaving mill, as a shearer and a general labourer.  These positions have all involved heavy manual work.  In 2002, he commenced work with the defendant at Seppelt Great Western Winery (“Seppelt”).  He worked on the bottle line, then in the warehouse, and as a cellar hand.  
2	He obtained a number of qualifications over his time with Seppelt, including a Diploma in Food and Wine Processing, which he undertook part time over three years.  The Diploma involved certificates in food processing, warehouse distribution, business operations and supervising.  He holds forklift and heavy vehicle licences.  In cross-examination, he accepted it was his intention to “get off the tools” and work towards a position in supervision or management, although, given his background, I have reservations that would ever have happened.
3	Mr Wilde suffered an injury to his spine on 4 June 2013, when he was lifting and manoeuvring a large plastic tub at Seppelt.  He went to see his general practitioner and had a short period of time off work.  A CT scan taken at the time showed disc bulges at various levels between L2-3 and L5-S1.  There was no significant central canal stenosis, nor foraminal narrowing reported.  A later MRI scan revealed an annular tear at the L4-5 disc.  He undertook physiotherapy and hydrotherapy for a period. 
4	Mr Wilde was certified by his doctor as fit for light work and returned to Seppelt doing office work.  He has very limited computer skills.  His hours of work varied and he had to take time off because of his back.  By December 2014, he was working twenty-six or so hours a week.  He did not particularly like the work and found it difficult to sit in an office for long periods.
5	After the Christmas break, he returned to work in January 2015 and was told he needed to undertake some of his previous heavy duties.  He lasted only a day and left because of back pain.  He says his employment was then terminated.  He has not worked since that time, although has applied for a range of jobs, including with Repco, at an automotive sales outlet; working at a roadhouse/service station; as a maintenance worker at a local hospital; doing yard work at a local abattoir and undertaking maintenance at an aged care centre.  In evidence, he said he did not know whether he would be able to carry out the work but was prepared to give it a go.  He was not accepted for any of the jobs, nor did he get to an interview.  He is registered with an employment agency, AXID Employment.
6	Up until recently, he lived on a rural property outside Ararat with his partner and four, sometimes five children.  He was able to carry out some maintenance around the property, including mowing the lawns and chopping wood, but did it slowly and often suffered painful consequences afterwards.  Because of the difficulties carrying out this work with his back injury, he and his family recently moved into  Ararat.  
7	His treatment has been largely conservative. 
8	He undertook a pain management program in Ballarat in 2016.  
9	Mr Wilde consulted Dr Murray Grave, musculoskeletal physician, in 2020, but Dr Grave was unable to offer any additional treatment and advised against surgery.  
10	He takes a range of medication, including Lyrica, Mobic, mirtazapine, Endep and occasionally Panadeine Forte.
11	He attempted to attend an horticultural course, but was unable to carry out the tasks because of back pain, and left after one day.
12	Mr Wilde claims a range of recreational and sporting activities are affected, in particular his interaction with his children.  He suffers relatively constant mid and low-back pain, and referred pain into his left leg, which is more significant in cold weather.  He says previous activities, including camping and motorbike riding, have ceased.  His sleep is affected.  He explained even little things like bending down to pick something up from the ground or tying his shoelaces causes pain.  In cross-examination, he said he would love to obtain work and provide for his family and is frustrated in not being able to do so.
13	There is little doubt Mr Wilde had pre-existing degenerative changes in his spine.  Mr Thomas Kossmann, orthopaedic surgeon, considered that in the incident on 4 June 2013, Mr Wilde had aggravated lumbar spondylosis, with mild spinal canal stenosis.  He said the condition had been previously symptomless.  He said the prognosis was poor and that Mr Wilde was likely to develop further degenerative changes in the lumbar spine.
14	Dr Andrew Miller, occupational health consultant, considered that Mr Wilde had appeared to suffer an intervertebral disc lesion.  He said the disability was moderate.
15	Dr Murray Grave considered Mr Wilde was suffering a “chronic pain syndrome”; however, in the context of his report, I consider this to be a physical, rather than a psychological, condition.
16	To Dr Mary Wyatt, occupational physician, Mr Wilde complained of constant backache, with flare ups, caused by even simple activities.  Mr Wilde said he had shooting pains into his left leg on occasions.  She diagnosed Mr Wilde as suffering chronic lower, and some thoracic back pain.  She said there was no evidence of disc protrusion, nor sciatica.  She thought there was some prospect of improvement in his symptoms were he to increase his level of self-exercise.  She noted a range of restriction in movement and described Mr Wilde’s presentation as straightforward.  Dr Wyatt described the pain as “niggling back pain”, manageable with medication.
17	The medical evidence is relatively uniform.  I accept Mr Wilde as a witness of truth. There were no significant credit issues put to him.  I accept he suffered an aggravation of underlying degenerative changes in his spine in the workplace incident.  I am satisfied he has ongoing lower back pain with occasional referred pain into his left leg.  He manages the pain conservatively with a considerable amount of pain-relieving medication, although I accept he has flare ups from time to time, which can be debilitating.  Such flare ups can occur from relatively minor and innocuous body movements, particularly at ground level.  I accept the restrictions in his social and recreational activities as he alleges.
The application
18	This is a serious injury application.  Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity.  The body function said to be lost or impaired is the spine.
19	While not conceding pain and suffering, Mr Storey, counsel for the defendant, did not submit the plaintiff failed to meet the statutory threshold and I accept, with little hesitation, the consequences of Mr Wilde’s lower back injury meet the “very considerable” test.
20	The application was contested only on the basis of work capacity.  The onus is upon the plaintiff to prove that, as a result of injury, he has suffered 40 per cent loss of “without injury” earning capacity.
Loss of earning capacity
21	The real issue in this application is the extent of Mr Wilde’s loss of work capacity and whether his current work capacity is such as to enable him to undertake a range of alternative employment identified by vocational assessors.  His “without injury” gross earnings in the 2013 year was $66,677, or $1,282 gross per week.
22	I will start with an examination of the various vocational assessment reports.  The purpose of such reports is to identify potential areas of employment rather than to determine whether a worker, from a physical perspective, is able to undertake the tasks involved.
23	A range of areas of employment were identified by Konekt, an occupational rehabilitation organisation, in its “130 Week Vocational Assessment Report”.  Those employment options were:
IDENTIFIED SUITABLE EMPLOYMENT OPTIONS	
Occupation	ANZSCO Number	Expected Salary $ Gross per week	Immediate Work Readiness Yes/No	Job Prospects (limited/below average/average/good/very good)	
Sales Representative	6113	$1,175[.00]	No	High	
Forklift Driver	7213	$1,000.00	No	High	
Purchasing & Supply Logistics Clerk	5911	$1,035.00	No	Above Average	
Storeperson	6191	$874.00	No	High	
Delivery Driver	732111	$990[.00]	No	Above Average	
Winery Supervisor	831118	$1,028[.00]	No	Average	
24	Mr Wilde had advised Konekt he was computer illiterate.  The report identified a number of transferable skills.  It then provided details of the duties involved in each of the areas of employment.  The availability of such positions “in the Ballarat region” was assessed.
25	Eleven sales representative positions were said to be available in the region.  There were two positions for purchasing and supply logistics clerk; two positions for a delivery driver, and no positions available as a winery supervisor.
26	A vocational assessment dated 19 August 2021 was undertaken by Mr Gary Greer, said to be an “NES Team Leader/Senior Vocational Advisor”.  Mr Greer referred to the medical reports of Dr Wyatt, Mr Kossmann, Dr Slesenger and Dr Fonseka.
27	The report then examined a range of employment options:  sales representative (wine); despatch/receiving clerk; console operator (service station); meter reader (parking, gas/water) and pathology courier.  The report also analysed the tasks involved in each of these areas.  Under “Local Labour Market Analysis”, the report noted a search of the “SEEK” website was undertaken on 18 August 2021, and of all the positions, the only vacancies were one part-time position as a console operator and one casual position as a pathology courier.
28	On behalf of the plaintiff, Mr Bill Radley, psychologist and vocational assessor of Job Options Consulting, provided a report dated 10 September 2021.  Because of his qualifications, Mr Radley was able to undertake psychological testing, including as to Mr Wilde’s capacity for retraining.  He said Mr Wilde’s prospects would be improved if he undertook some type of retraining, and said he ought to participate in a TAFE course to improve basic computer skills and in courses that would result in further qualification in more sedentary occupations.  He thought Mr Wilde had the capacity to undertake such courses.  He noted that, given Mr Wilde’s residence in Ararat, about 95 kilometres from Ballarat, together with the consequences of his injury, his limited work experience in unskilled and manual areas of employment, and lack of retraining or rehabilitation, it would be difficult for him to obtain and maintain employment.
29	Mr Radley considered Mr Wilde had the current capacity for full or part-time work as a console operator, office assistant, café worker, meals-on-wheels driver, general clerk or school bus driver.  He said, further, subject to Mr Wilde completing appropriate occupational training, he may have some capacity to work full- or part time as a hotel/motel front office clerk, tourist information officer, gaming worker or weighbridge operator.  Although of the view that Mr Wilde had the capacity for employment in these various areas, Mr Radley said:
“The level of physical impairment outlined in the medical reports suggests that Mr Wilde could cope with full-time or … part-time employment in a more sedentary occupation.  You may need to check this with his treating doctors.”
30	I found the report of Mr Radley impressive and accept he has extensive experience and qualifications, including as a psychologist. However, as I have stated, the role of a vocational assessor is to identify areas of employment to which a person may be suited by qualifications, training and experience, but the assessment of whether that person is capable of carrying out the work from a physical perspective lies with the medical practitioners.
31	I will now examine the medical opinions.
32	Mr Wilde’s treating general practitioner, Dr Prasad Fonseka, considered Mr Wilde could not continue his light duties in 2015 because of increasing back pain.  He said he was not able to sit or stand for long periods, nor undertake heavy lifting.
33	Dr Joseph Slesenger, occupational physician, in his report of July 2020, suggested a range of restrictions in relation to prospective work.  He said Mr Wilde could not return to his pre-injury duties because of the manual handling aspects of the work.  He concluded:
“Taking into consideration Mr Wilde’s age (41), his past employment history, his rural residential location (Halls Gap/Ararat), his driving limitations, the variable and unpredictable nature of his symptoms, his medication side effects and his computer literacy, I am of the opinion that he is unlikely to be able to return to work on a consistent and reliable basis.”
34	Mr Kossmann was of opinion Mr Wilde had no capacity to return to his duties as a cellar hand.  He said:
“… He may have a work capacity for modified/light duties approximately 20 hrs/week as long as he does not walk long distances, on uneven grounds, upstairs and downstairs, inclines and declines, climb up and down ladders, kneel or squat or carry heavy items weighing more than 5kg.  Furthermore, he should have enough time to undertake self-exercises whilst working.  In my opinion, this incapacity will continue for the foreseeable future.”
35	Dr Miller also accepted Mr Wilde did not have the capacity to carry out his pre-injury duties, but thought he had a work capacity within restrictions, including lifting more than 10 kilograms and a range of other movements.  He said Mr Wilde had the capacity to work as a sales representative, forklift driver, purchasing and supply logistics clerk, storeperson, delivery driver and wine supervisor.  He said, further:
“The physical requirements of these job options vary considerably and it is not possible to categorically state that they are appropriate.  There is the potential for some of the job options to satisfy the restriction criteria recommended.  It appears that the job options of winery supervisor and delivery driver may be beyond his physical capacity.  I suggest that any job option proposed be formally assessed prior to it being assigned to Mr Wilde to ensure that it does in fact satisfy the restriction criteria. 
 …
 Other suitable job options could include light assembly and process work as well as quality control work.”
36	Dr Wyatt provided two comprehensive reports.  She agreed Mr Wilde was not fit to return to his pre-injury duties.  She said:
“I think Mr Wilde does have a capacity for suitable employment.  I consider he is fit for work activities that encourage change in posture, avoid static posture and avoid deep bending and significant manual handling, such as regular lifting of over 5-10kg.  He should not be required to bend down to low levels, such as reaching his fingertips to below knee height.”
37	Dr Wyatt was provided with the Konekt report and considered the jobs referred to.  She said Mr Wilde was capable of work as a sales representative, providing he had an opportunity to take a break on longer driving trips.  She recommended against work as a forklift driver.  She said Mr Wilde would be able to work as a supply and logistics clerk.  She said work as a storeperson would not be suitable.  She was of the view work as a driver would probably be beyond him unless the work was very light.  As to work as a winery supervisor, she said it would depend on the manual aspects of the job.  She noted some of the jobs involved operating machinery and cleaning equipment. The manual demands of the job would be outside Mr Wilde’s capabilities.  She said he would be fit for cellar-door sales work, but not as to the full role as outlined in the assessment.  She said he had the capacity for a range of roles in retail and maintenance work in a caravan park providing the duties were not heavy.  She said he may work as a console operator in a service station.
38	In respect of these various positions, she said he could work full-time hours.  She noted however:
“He has limitations in obtaining work because of his geographic location. However, I do see Mr Wilde as being capable of doing a range of job options that are less manually demanding than his described pre-injury duties.”
39	In a supplementary report of 22 August 2021, Dr Wyatt considered a number of further jobs.  She said:
“The first job is as a sales representative visiting clients and retail outlets to establish selling opportunities.  It involves monitoring clients, developing sales reports and driving.  Provided Mr Wilde was able to take regular breaks over the day, I considered this would be a suitable role for him.  It is not physically taxing and he does have the opportunity to get out and break his journey.
 The second role is as a despatch and receiving clerk.  Working in a warehouse environment.  There is regular walking involved and computer-based activities.  That is a suitable role for full-time hours of work and it is noted that Mr Wilde has experience in working in a warehousing environment, as well as the relevant qualifications.
 The third role is as a console operator working within a service station. This typically involves working at a register, as well as restocking goods within the store part of the service station.  I think this is a suitable role for Mr Wilde.
The fourth role is as a meter reader driving to various locations and then standing or walking to gather and record meter readings.  There is no significant lifting or manual handling required in the role.  This is a suitable role for Mr Wilde
The fifth and last role is as a pathology courier driving and transporting Eskies from pathology collection centres to the laboratory. Weights handled are typically 3kg to 5kg in the Esky box, with driving for up to 30 minutes at a stretch.  This seems to be a suitable role for Mr Wilde.
The roles that are considered suitable are appropriate for full-time hours of work.” 
Analysis
40	I do not find the assessments of Dr Slesenger and Mr Kossmann of particular assistance.  Dr Slesenger’s assessment of work capacity was very brief.  Mr Kossmann, likewise.  Neither considered specifically the various alternative areas of employment, and the tasks involved.  Dr Miller, while referring to various of the job options, did not make a detailed assessment.  In any event, he, quite appropriately, commented that the physical requirements of these jobs may vary and it is not possible to categorically state whether they are appropriate.
41	The report which I found of most assistance was that of Dr Wyatt.  I found her report careful, thorough and balanced.  Generally, I accept her assessment of Mr Wilde’s capacity for employment from a medical perspective.  
42	However, that is not the end of the matter.  The definition of “suitable employment”, in s3 of the Act, provides as follows:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
 (a) 	having regard to the following—
(i) 	the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) 	the nature of the worker's pre-injury employment;
(iii) 	the worker's age, education, skills and work experience;
(iv) 	the worker's place of residence;
(v) 	any plan or document prepared as part of the return to work 
(vi)  	any occupational rehabilitation services that are being, or have been, provided to or for the worker;
 (b) 	regardless of whether—
(i) 	the work or the employment is available; or
(ii) 	the work or the employment is of a type or nature that is generally available in the employment market;
… .”
43	This definition has been considered in a number of authorities.
44	In State of Victoria v Rattray, Bongiorno AJA said:
“In her reasons for judgment dealing with Mr Rattray’s capacity to work, the trial judge had concluded that, although Mr Rattray was suitable for light work, as he could not find any in his region his loss of earning capacity was 100%.  Her Honour’s extensive reasons for this conclusion did not address the issue of the existence of jobs in Mr Rattray’s region, separately from whether any of those jobs was available at the time of the County Court hearing or not.
 On the authority in Barwon Spinners, the Accident Compensation Act must be thus construed.  The question of loss of earning capacity fell to be determined by reference to the physical capacity of the claimant only.  The existence or non-existence of a job vacancy in the claimant’s region within the claimant’s capacity was irrelevant.
 It follows that her Honour was in error in approaching the question of Mr Rattray's loss of earning capacity in the way that she did.  She should have considered the evidence as to whether any job within his capacity, as she found it to be, existed in the area in which he lived, having regard to the other factors set out in the definition of ‘suitable employment’ in s.5 of the Act.  Having found that Mr Rattray was employable at some reduced level, whether in terms of activities performed or the period of time over which he could perform them, she ought to have then engaged in the exercise required by s.134AB(38)(f) of the Act … .”
45	In Giankos v SPC Ardmona Operations Ltd, the Court of Appeal said:
“In considering the other grounds of appeal, it must be recognised that the Act differentiates between an inability to earn income in suitable employment because of an impairment and an inability to earn income because of a tight labour market.  A worker’s reduction of the capacity to earn income in suitable employment must relate to the former, rather than the latter.  This is reflected in s 5 of the Act, which requires the court to disregard whether the work, for which the injured worker is currently suited, is or is not available to the worker.
 …
 First, the worker’s capacity for work for which he is currently suited must be assessed by reference to the appellant’s age and place of residence, as well as his education, skills and work experience. The appellant was 58 years old when the application was heard.  He left school when he was young and has had had a history of unskilled and manual work in family enterprises, and at SPC, though at one time he had run a hotel in Melbourne.  He was living near Mooroopna.  Employment which was situated a long distance from his residence would not be ‘suitable employment’ within s 5 … .”
 (Footnotes omitted.)
46	The Act provides that a worker may only bring proceedings seeking loss of earning capacity common law damages if the worker establishes a 40 per cent loss of earning capacity in accordance with the formula set forth in s325(e) and (f).  That loss of earning capacity is to be measured by comparing the gross income the worker is earning or capable of earning from suitable employment at the current time, with his or her gross income in the three years before or after injury as best represents without injury earning capacity.  The emphasis in the section is upon work capacity rather than availability.  Indeed, subsection (b)(i) of the definition of “suitable employment” makes it clear the availability of employment is irrelevant. 
47	Notwithstanding, that definition requires the Court to take into consideration a range of matters, including the worker’s place of residence.  There may, in certain cases, be a tension between work capacity regardless of availability, and geographic location, such as a worker who lives in a rural area (like Ararat) where, despite having the physical capacity to work in a particular job, there is no such job in that area or its surrounds.  Or there is a job available, but it is some hours’ drive away, a journey which would cause increased pain because of the workplace injury.
48	Undoubtedly, the definition of “suitable employment” requires consideration of a worker’s place of residence.  Otherwise, that part of the definition would have no work to do.  The answer, it seems to me, is a consideration of the other matters which require consideration in the definition of “suitable employment”.  The Court is to have regard to matters such as a worker’s age, education, skills and work experience.  A worker with a very limited and basic education and no experience, could not work in a laboratory in a scientifically-based job, notwithstanding he or she would have the physical capacity to do so; a worker with experience only in manual and unskilled employment and with no computer skills, could not work in an office job which required regular use of a computer, despite having the physical capacity to stand at a keyboard and use the keys; a worker with no training could not work as a pianist, despite having the ability to stand at an instrument and press down upon the keys.  In summary, a worker, despite having the physical ability to undertake the tasks within a certain employment, but who does not have the experience or understanding or skill or intellectual competence to do the work, could not be said to have the capacity to work in suitable employment.
49	Likewise, despite a worker having a certain physical capacity, his or her place of residence might be such as to make it impossible or even highly unlikely, that such an area of employment would be suitable.  Examples include suggesting that a person has the capacity to work as a fisherman, despite living hundreds of kilometres from the sea.  Another is a person who, having lived in a rural town for a considerable period and where that person’s family and cultural attachments lie, would be to drive a very long distance, causing physical pain from a back injury, to attend employment for which he or she is otherwise suited.  To suggest that the Act contemplates work capacity without any regard to the personal circumstances and attributes of a worker, as set out in the definition, is to take too narrow a view of the legislation.
50	Bearing these matters in mind, I will now assess Mr Wilde’s capacity for the various identified employment positions.
Sales representative
51	Dr Wyatt considered Mr Wilde was capable of work as a sales representative, although noted that if he had to travel for an hour and a half, he would need to take a short break.  She said he would need to take breaks during the day.  The report of a Workable consultant noted that driving cars was likely to be frequent. The report said there was employment available in Mr Wilde’s area, but it would be likely Mr Wilde would have to travel considerable distances around the region to and from such employment, and then out to service clients.  Given his restrictions and the pain he suffers when driving long distances, I am of the view that such a role would be beyond him.
52	Moreover, he has always worked in unskilled manual areas and has never worked in sales. Even accepting he would know something of the wine industry, the Workable report said there were no positions, either full time or part in the area, in that industry. Realistically, taking into account his training and experience, he has no capacity for this role.
Forklift driver
53	Dr Wyatt considered that although Mr Wilde may have the ability, she thought he would not be able to cope sitting all day on a forklift.  That accords with my own assessment.  In cross-examination, Mr Wilde, having worked as a forklift driver, also said he would be unable to undertake this work.
Purchasing and supply logistics clerk
54	Dr Wyatt said Mr Wilde would be capable of this work.  He would be required to sit but could also move around.  The Konekt report sets out the duties involved.  Mr Wilde has no experience in such an area.
55	The Workable report refers to despatch/receiving clerk.  No positions were said to be available.
56	It is likely, given Mr Wilde’s relatively-remote rural location, he would have to drive some distance to work.  Further, in my experience, there are few clerical roles available which do not require use of a computer.  Dr Wyatt noted the role involved computer based activities. Mr Wilde is computer illiterate.  Again, given his lack of experience and training, his lack of skills in the area, and his location, I am not satisfied he has the capacity for this area of employment.
Storeperson, driver
57	Dr Wyatt said Mr Wilde would not be able to cope with the demands of these roles.  I respectfully agree. 
58	Further, even if there was a position which involved the carriage of only light goods, the job would involve spending long periods driving which would be beyond Mr Wilde’s capacity. A pathology delivery driver position was suggested, but again there would be constant driving and there was only one casual position identified in the Ballarat area.
Winery supervisor
59	Dr Wyatt thought Mr Wilde may have the capacity for this role, although it would depend upon the demands of the job.  He certainly has experience in the wine industry.  The Konekt report refers to the duties as including operating various types of plant machinery and the cleaning of equipment, all of which would involve significant physical labour.  Dr Wyatt thought the manual demands of the job would be outside his capacity.  I agree.
60	Further, according to the Konekt report, there are no jobs available in the Ballarat area.
61	Dr Wyatt considered Mr Wilde would be fit for cellar door sales, given his background in the wine industry, but noted that the vocational report referred to some duties for which he would not be able to perform. I am of the view he has no capacity for such a role.
Caravan park maintenance
62	Dr Wyatt considered that Mr Wilde would be able to do this work providing it was not particularly heavy.
63	However, none of the Vocational Assessment Reports have addressed this area of employment.  There is no assessment as to the particular tasks involved or how heavy they might be.  There is no assessment as to whether there might be any jobs available in or around the Ballarat area.  Without that information, in my view it is not possible to determine whether Mr Wilde has the capacity for such employment, and whether the employment is suitable.  
Meter reader (parking gas/water)
64	Dr Wyatt assessed that this would require Mr Wilde to drive to various locations, then stand or walk to gather meter information.
65	The Workable report identified that there were no positions advertised on the Seek website in the Ararat and surrounding areas.  Further, meter reading would involve bending down and kneeling, activities Mr Wilde specifically said caused pain in his back.  Combined with the driving, I am not satisfied he would have the capacity for such a position, or that it would constitute suitable employment.
Console operator in a service station
66	Dr Wyatt said this would be a suitable role for Mr Wilde.  She said the tasks typically involved working at a register and restocking goods.
67	The Workable consulting report identified one part-time position in the area.  The duties included, amongst other things, filling fuel tanks, checking tyre pressure, washing vehicles, performing minor repair work and maintaining and operating automatic carwash facilities.  Console operator in a country town involves different duties to the same role in the city. The work also involves use of electronic registers and computers.  
68	I am of the view many of these tasks would be beyond Mr Wilde.  Mr Wilde is computer illiterate and while he may be able to undertake some tasks involving an electronic register and stocktaking, the heavier aspects of the job and the use of a computer would be beyond him.  I am of the view he does not have the capacity for this employment and it is not suitable employment.
69	Mr Radley, in his vocational assessment report, identified some further jobs which were not the subject of assessment by Dr Wyatt, including as an hotel/motel front office clerk, tourist information officer, gaming worker or weighbridge operator.  However, as Mr Radley notes, Mr Wilde would first have to undertake occupational retraining.  He referred to other jobs, including as an office assistant, café worker, general clerk or school bus driver.  
70	Mr Wilde has no experience as an office assistant or café worker.  I am of the view being a school bus driver would be beyond him given the amount of time he would be required to sit and drive a bus.  As Mr Radley observes, his residential location, limited general work skills and the limitations presented by his lower back injury will make it more difficult for him to obtain and maintain employment.  Further, Mr Radley’s report does not contain any assessment of the availability of the areas of employment in and around the Ballarat or Ararat regions.
Conclusion
71	Taking into account Mr Wilde’s limited workplace experience, his past employment skills and his place of residence, I am of the view there are no available jobs identified for which he has the requisite capacity.  Further, the jobs do not constitute suitable employment within the definition provided in the Act.  Jobs involving significant driving would be beyond him.  Any work as a sales representative is work for which he has no experience.  Anything involving computers or like electronic equipment are areas for which he has no understanding or training.  He suffers ongoing pain and restriction as a result of his back injury.  This makes any employment involving physical tasks of any magnitude inappropriate.
72	I am of the view that as a result of his injury, Mr Wilde has suffered a significant loss of earning capacity.  While it is not possible to say precisely what that loss is, and even accepting he may have the capacity for some light part-time employment, I am of the view the reduction in his earning capacity exceeds 40 per cent.
73	I will grant leave to bring proceedings for both pain and suffering and economic loss.
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