Ali v VWA
[2021] VCC 1369
•23 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-05608
| TAREK ALI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 9 September 2021 | |
DATE OF JUDGMENT: | 23 September 2021 | |
CASE MAY BE CITED AS: | Ali v VWA | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1369 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Psychological Injury – Loss of earning capacity – Suitable employment in a different jurisdiction – Earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325
Cases Cited:Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; Acir v Frosster Pty Ltd [2009] VSC 454; Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120; Richter v Driscoll (2016) 51 VR 95; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr E Makowski | Arnold Thomas & Becker |
| For the Defendant | Ms G J Cooper | Wisewould Mahony |
HIS HONOUR:
Introduction
1Mr Tarek Ali was in Australia on a working visa when he sustained a severe psychiatric injury at the hands of his employer. He subsequently left Australia and returned to Egypt where he began working full time. The dispute in this case focused on whether or not Mr Ali had sustained a loss of earning capacity of more than 40 per cent which would result in the Court’s finding that he had suffered loss of earning capacity consequences which satisfy the terms of s 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“WIRCA”).
2The parameters of the dispute centred on the definition of what constituted “suitable employment”. The Defendant submitted that Mr Ali’s earnings and job capacity deployed in Egypt should be transposed to the Australian market in Australian dollars. The Plaintiff submitted that this was inconsistent with the meaning of “suitable employment” in the WIRCA. The Plaintiff submits that the Plaintiff’s situation must be assessed as it is in Egypt with the currency converted from Egyptian pounds to Australian dollars to allow for the comparison required in s 325(2)(f)[1] to be made.
[1] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325(2)(f)
3For the reasons which follow, I do not accept the Defendant’s arguments. I prefer the construction of the WIRCA proffered by the Plaintiff for the reasons set out below.
Facts
4Mr Ali was born in September 1984 in Cairo, Egypt. Between 2002 and 2008 he completed dentistry training and then worked as a dentist for approximately three years. He came to Australia in 2010 on a 485 Graduate Skill visa. He initially worked in Perth as a dental technician while doing a dental technology course. While in Perth, he successfully applied for a position as a dental technician for Andent Pty Ltd at 20 Collins Street, Melbourne. He was successful in that application and moved from Perth to Melbourne in October 2013. He was earning, at that stage, $45,000 gross per annum approximately. In July 2014, he moved from the Andent practice to an associated company known as Dentmill Pty Ltd in Collingwood. Dentmill was an associate company of Andent and manufactured dental prosthetics. The director of both Andent and Dentmill was the same, being Barry Smith. Barry Smith’s son was Kurt Smith, and he managed the Dentmill factory in Collingwood.
5After moving to Dentmill in Collingwood in July 2004, Mr Ali increased his salary to $55,000 plus superannuation, gross per annum.
6Mr Ali alleges that from late 2014, he began to suffer from verbal abuse and harassing behaviour from Kurt Smith at the Dentmill factory. The details of this have not been ventilated and do not bear on the outcome of this case.
7Relevantly, the Plaintiff’s 485 Graduate Skill Visa was due to expire in February 2015. He approached Barry Smith to assist with transferring to a different sponsored visa which would eventually lead to permanent residency. The evidence was that Barry Smith was supportive of this suggestion and undertook to help advance Mr Ali’s visa application.[2] His evidence was that he loved his work with the Defendant. He was working full time. He gave evidence that he was positive, motivated, and hardworking. He gave evidence that his plan was to live a full life in Australia with his family.
[2]Plaintiff’s affidavit at Plaintiff’s Court Book (“PCB”) 25, at paragraph [15]
8Mr Ali gave evidence via affidavit that Kurt Smith’s behaviour towards him worsened during the end of 2014 and the beginning of 2015.[3] Ultimately, it led to the Plaintiff making a WorkCover claim on 16 February 2015.[4] Shortly afterwards, on 18 February 2015, Mr Ali tried to commit suicide by hanging.[5] He was fortunately found and transferred by ambulance to The Alfred Hospital. He remained an inpatient at the psychiatric ward of The Alfred until 24 February 2015. Shortly afterwards, he began seeing Dr George Camilleri at the Melbourne Clinic[6] and remained under his care for a significant period of time.
[3]PCB 14 – 18, at paragraphs [18] – [35]
[4]PCB 68 – 69
[5]PCB 18, at paragraph [39]
[6]PCB 19, at paragraph [43]
9In the meantime, on 2 April 2015, the Department of Immigration approved the sponsorship application of Dentmill, which meant that the Plaintiff had three years, that is, until 2 April 2018, to complete the sponsorship agreement and thereby continue on his path to permanent residency.[7]
[7]PCB 112
10As at mid-2016, Dr Camilleri diagnosed Mr Ali with Post-Traumatic Stress Disorder (“PTSD”) and major depression.[8] He commented on poor concentration, poor focus and low tolerance to stress. On 29 September 2016, Mr Ali resigned his employment as a dental technician with the Defendant.
[8]PCB 44
11As he was no longer with Dentmill, he obtained a Temporary Work Skill Visa subclass 457, which permitted him to do other work. He managed to find some work as a trolley boy working in New South Wales in February 2017.[9] However, he was only earning a small amount of money and so decided to return to Egypt. He returned to Cairo in the middle of 2017.[10] Ultimately he returned to work in February 2018 in Cairo with a company known as “3ddiagnostix”.[11] His work there is full time and, but for COVID-19, he would be in an office with about twenty other people.[12] The work there is not the same as in Australia.[13] Rather, he receives information via email from dentists in the United States and manipulates software programs to design dental treatment plans for implants. These are then emailed back to the dentists in the United States.[14]
[9]PCB 20, at paragraph [52]
[10]PCB 20, at paragraph [54]
[11]PCB 21, at paragraph [60]
[12]Transcript (“T”) 18, Line (“L”) 25 – 27
[13]T22, L18 – 24
[14]T19, L1 – 12
12He remains on Sertraline for his psychological injuries.[15]
[15]PCB 24, at paragraph [8]
13In October 2020, Mr Ali was examined by Dr Timothy Entwisle, psychiatrist for the Defendant. He considered that Mr Ali had a major depressive illness with psychotic features in partial remission.[16] He considered it to be a chronic condition with moderately-severe anxiety features. Dr Lester Walton, psychiatrist, provided a report on 10 December 2020,[17] which largely agreed with Dr Entwisle’s reporting. A further medico-legal psychiatric opinion was obtained from Dr Rasanjali Rathnayake on 23 June 2021.[18] She had conducted an examination via video conferencing and noted that there was no recovery from the Major Depressive Disorder and ongoing thoughts of failure and helplessness. She did not believe that he fulfilled a PTSD diagnosis.
[16]Defendant’s Court Book (“DCB”) 24
[17]PCB 48
[18]DCB 44
14The Defendant accepts that for the purposes of this application, the Plaintiff has sustained a severe psychological disorder which qualifies as a serious injury within the meaning of s 325 of the WIRCA.
Legislation
15Section 325 relevantly states, as to the test to be satisfied by a worker seeking to obtain a determination that they have suffered a loss of earning capacity of the requisite degree:[19]
[19]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325(2)(e) and (f)
“(e) if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), the Authority or self-insurer must not issue a certificate under section 335(2)(c), and a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i) at the date of a decision under section 335(2)(c) or at the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii)the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;
(f) for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i) the worker's gross income from personal exertion (expressed at an annual rate) which the worker is— (A) earning, whether in suitable employment or not; or (B) capable of earning in suitable employment— as at that date, whichever is the greater, and—
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;”
Analysis
16This case turns on a very narrow basis. This is because the following matters are not in dispute between the parties. First, that Mr Ali was injured throughout the course of his employment with Dentmill throughout the latter part of 2014 and in particular in February 2015. It is accepted that that injury is a severe psychological disorder, that is, a permanent serious injury within the meaning of the WIRCA. Secondly, that an assessment of the three years before and the three years after his date of injury (being the period from February 2012 to 2018) leads to a finding that he was earning $55,000 gross per annum.[20] Thirdly, it is this figure of $55,000 gross per annum which must be compared with the figure which the Court determines pursuant to s 325(2)(f)(i).[21] That is the figure to be determined by the Court’s finding as to Mr Ali’s gross income from personal exertion expressed at an annual rate which Mr Ali is:[22]
“(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment —
… whichever is the greater [as at the date of the trial]”
[20]T44, L3 – 9
[21] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325(2)(f)(i)
[22] Ibid
17As a result of that narrowed debate, the parties focused attention on:
(a) How his actual earnings in Egypt with 3ddiagnostix should be calculated: that is, in Egyptian pounds converted to Australian dollars or by transposing the job being performed in Egypt to the Australian economy and ascertaining the value of those earnings; or,
(b) As to his capability to earn, the Plaintiff argued that this must be considered on the basis he was confined to the Egyptian economy and converted to Australian dollars, whereas the Defendant submitted his capacity should be transposed to the Australian economy and valued in Australia dollars in this economy.
18The debate between the parties is resolved by reason of the text of the WIRCA itself. Turning to examine that text in relation to s 325(2)(f)(i)(A).[23] This is Mr Ali’s gross income which he is earning, whether in suitable employment or not. This is, I consider, a factual enquiry. There is no dispute that he is employed on a full-time basis in Cairo earning AUD$8,195.[24] The dispute between the parties is whether it is sufficient to simply convert the figure earnt in Egyptian pounds to Australian dollars, being the sum of AUD$8,195, or whether the calculation should be performed as if the job were done in Australia and therefore at the Australian rate, expressed in Australian dollars.
[23] Ibid, s 325(2)(f)(i)(A)
[24]PCB 28
19The section, it seems to me, is clear. The WIRCA calls simply for the gross income actually earned. This is a factual enquiry at this stage of the test, which the WIRCA sets out. There is no requirement at this stage to speculate as to the earnings of the employed capital asset.[25] Rather, the focus is on the actual earnings. So much is clear from the way s 325(2)(f)(i)[26] employs the term “is earning”. This is a factual enquiry into the current state of affairs. This yields the finding that Mr Ali is working full time in a position as a dental planner with 3ddiagnostix, earning 93,398 Egyptian Pounds (AUD$8,195).[27] The next dispute is whether the Plaintiff’s construction that such a figure be converted to Australian dollars is accepted. The language of the WIRCA answers this dispute also. This is because, as set out above, the focus is on the factual circumstances of the worker at the time of trial. Here, that yields a figure of 93,398 Egyptian Pounds but the only sensible way to continue with the section is to convert that to Australian dollars. The section as to the loss of earnings test is one designed to establish a straightforward, simple test for comparison.[28] The language of the text focuses, at this stage, on actual earnings from personal exertion. This is not a hypothetical situation. The Plaintiff’s construction is to be preferred because it gives effect to the language of the section.
[25]Herald & Weekly Times Ltd and Victorian Workcover Authority v Jessop [2014] VSCA 292
[26] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325(2)(f)(i)
[27]PCB 28
[28]Accident Compensation (Common Law and Benefits) Bill Hon Monica Gould (Minister Assisting the Minister for Workcover) Legislative Council 23 May 2000; See also Acir v Frosster Pty Ltd [2009] VSC 454
20Accepting that construction yields the figure pursuant to s325(f)(i)(A)[29] of AUD$8,195.
[29] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325(2)(f)(i)(A)
21The next part of the Act, s325(2)(f)(i)(B)[30] requires a determination of the gross income from personal exertion, which Mr Ali is “capable of earning in suitable employment” (My emphasis).[31]
[30] Ibid, s 325(2)(f)(i)(B)
[31]Ibid
22The term “suitable employment” is defined in s 3 of the WIRCA:[32]
[32] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 3
“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 planning process;
(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;
and, for the purposes of Part 4, includes—
(c) employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d) employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e) suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;
23Particularly, that definition requires regard be had inter alia, to the worker’s place of residence. This factor has been considered in numerous cases.[33]
[33]Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120at [38] and [101]; Richter v Driscoll (2016) 51 VR 95 at [79] – [80] relying on Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at 636.
24The salient point from those cases is that the concept of suitable employment travels well beyond physical capacity. Once understood in that way, the fact of the Plaintiff’s residence in Egypt becomes a matter to be taken into account in the assessment of what he is capable of earning. Necessarily, he is excluded from the Australian economy and cannot earn in it now and for the foreseeable future. It is accepted that there is no equivalent position to that which he held with the Defendant in Egypt here in Australia.[34] As such, it is entirely unclear what such a position would result in by way of gross income. I consider that the Defendant’s construction does not adequately explain the way the definition of the suitable employment is to operate, given part (iv)[35] of the definition of that term, and the consideration given to part (iv) by cases such as Giankos,[36] Richter[37] and Barwon Spinners[38] referred to above.
[34]T22, L19
[35] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 3(iv)
[36] Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120
[37] Richter v Driscoll (2016) 51 VR 95
[38] Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
25Applying the test as required at s 325(2)(f)(i)(B),[39] the gross income he is capable of earning in suitable employment, on the evidence, can only then be the same as that which he is currently earning. As set out above, that is the figure of AUD$8,195. Making a comparison of that figure to his earnings as found in accordance with s 325(2)(f)(ii)[40] of $55,000, it can be seen that he has sustained a loss of earning capacity of at least 40 per cent or more.
[39] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325(2)(f)(i)(B)
[40] Ibid, s 325(2)(f)(ii)
26The Defendant in this case complained that allowing the Plaintiff to make the comparison relying on his deployed earning capacity in the Egyptian market would be to distort the test set out in the WIRCA. As was made plain by his Honour Justice Forrest in Acir,[41] the provisions in this section of the WIRCA are gateway provisions. The argument as to the actual loss of earnings sustained, which is at the nub of the Defendant’s argument, is a matter which is properly ventilated at any damages trial.
[41]Acir v Frosster Pty Ltd [2009] VSC 454
27Beyond that, it is not necessary to go. However, there was dispute between the parties about the inadmissibility of Mr Barry Smith’s statement. Mr Smith’s statement was sought to be relied on by the Plaintiff as it supported his argument that he would have completed the requirements of his visa and proceeded on the pathway to permanent residency. The Defendant objected to its tender and sought to exclude it on the basis that it was not in affidavit form and further sought to provide expert evidence. A ruling does not strictly need to be made in regard to the inadmissibility of Mr Smith’s statement given the construction that I have placed on the WIRCA and applied to the facts as set out above. However, because the matter was argued before me, I would make the following remarks. It is ordinarily not the case that statements are admitted into evidence in serious injury applications. However, in this case there are a number of features of Mr Smith’s statement that I consider render it admissible. It is a statement taken contemporaneously from the director of the Defendant company. It outlines factual circumstances surrounding the employment of Mr Ali and his visa status. There is almost no way that Mr Ali could obtain such evidence from anyone at the Defendant’s place of work, particularly a director who was charged with assisting workers obtain bridging visas and working-skill visas. The evidence of Mr Smith is relevant and probative of the working conditions at the Defendant’s premises and the immigration status of Mr Ali. Both matters are relevant to the earning capacity of Mr Ali. The evidence he gives about the visa application process for sponsored migrants such as the Plaintiff, is also relevant to the assessment of earnings and job stability. For all those reasons I would admit the statement.
28I will grant the Plaintiff leave under both heads. I will hear the parties on costs.
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