Alkerdi v VWA
[2019] VCC 2020
•13 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-02145
| MOHAMED ALKERDI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 December 2019 | |
DATE OF JUDGMENT: | 13 December 2019 | |
CASE MAY BE CITED AS: | Alkerdi v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2020 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application - worker under 26 years at date of injury - amputation of ring and little fingers on dominant hand - reattachment of fingers - pain and suffering - loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:State of New South Wales v Moss (2000) 54 NSWLR 536; Berthelot v Fleetweld Pty Ltd [2015] VCC 1453; Sassine v Maribyrnong Superstore Pty Ltd [2018] VCC 310; Francis v Woolworths Group Ltd [2018] VCC 627; Cosoleto v Malua Racing Pty Ltd [2018] VCC 709; Hogan v Victorian WorkCover Authority [2018] VCC 2189
Judgment: Leave granted to the plaintiff
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC Mr G Pierorazio | Arnold Thomas & Becker Lawyers |
| For the Defendant | Mr D Churilov | Minter Ellison |
HER HONOUR:
1 The plaintiff, Mr Mohamed Alkerdi, applies under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act2013 (‘the Act’), for leave to issue proceedings for damages for economic loss and pain and suffering in respect of an injury to his dominant right hand suffered on 18 September 2016 while working for Mr Nazih Ammouche (‘the employer’) assisting with carpentry work.[1] While using a circular saw with his employer, he sustained a complete amputation of his right ring finger and a partial amputation of his right little finger. He underwent surgery to replant his right ring finger and repair his right little finger. The surgery was successful in the sense that the fingers were reattached/repaired, but he suffered considerable loss of function. In spite of ongoing hand therapy, he suffered an internal infection in the fingers which required further surgery. He has permanently suffered a significant loss of function in the affected fingers, and has developed chronic pain and some psychological issues. He has not worked since the injury and claims a range of recreational, social and domestic activities are curtailed. He says that the pain and suffering sequelae of his right hand impairment meet the narrative test for serious injury. He also says that as a result of the permanent impairment of the right hand he will permanently suffer a loss of earning capacity which will be productive of a financial loss of 40% or more.
[1]The plaintiff’s application is brought only under sub-paragraph (a) of the definition of ‘serious injury’ in s 325(1) of the Act. The plaintiff’s application under sub-paragraph (c) of the definition was not pursued at the hearing.
2 The defendant says that the plaintiff’s application should fail for a number of reasons.
3 Firstly, there are a number of credit issues affecting the reliability or credibility of his evidence. These include: his failure to declare income earned from carpentry work to the Australian Tax Office; the fact that he has a conviction for a dishonesty offence (robbery); the inconsistency between his evidence and his employer’s affidavit as to the work arrangements in the six days prior to his injury; an alleged history given to Dr Kilner Brasier to the effect that he was working as a part-time security guard on weekends for the 12 months prior to the assessment on 7 November 2019;[2] the observations of a number of experts that he did not fully cooperate with physical examinations, and that there is substantial psychological overlay to his presentation. The defendant says that these concerns impact on the assessment of the pain and suffering and loss of earning capacity consequences of the injury to his hand.
[2]Plaintiff’s Court Book (‘PCB’), p 78.
4 Second, the plaintiff has failed to engage in a pain management program for which funding has been available since December 2018, even though some doctors have opined that his future capacity for employment depends on the improvement of function which might be obtained through participation in such a program. His failure to engage in this program is due to psychological factors. His inability to work or to try jobs is based on a multiplicity of causes apart from the organic injury to the hand; these include the impact of the two types of anti-depressant medication he takes, the back pain he suffers as a result of substantial weight gain, and his psychological condition.
5 The defendant relies on the opinion of Dr Dominic Yong to the effect that the plaintiff retains a residual capacity to work as a meter reader, price integrity officer or ticket attendant, starting at nine hours per week and working towards full-time hours. The defendant says that if the plaintiff regains the capacity to work full-time in these positions, his maximum gross weekly earnings would be $1,165.[3]
[3]The defendant provided a table setting out the gross weekly wage for each occupation in which it says the plaintiff has capacity to work.
6 Third, the plaintiff suffers from depression, chronic pain and psychological overlay, and the Court cannot be satisfied that there is a substantial organic basis for his loss of earning capacity nor that it will be permanently productive of a 40% loss of earning capacity.
7 In the application, the parties tendered court books containing the plaintiff’s affidavits and a lay witness affidavit from the employer as well as relevant medical and vocational reports. At the hearing, the plaintiff gave viva voce evidence and was cross-examined. I have considered all of the evidence as well as the submissions made by counsel.
Relevant background
8 The plaintiff is 28 years old. He is of Syrian background, but was born and educated in Lebanon. He completed school and then a Bachelor’s Degree in Mechanical Engineering, and wanted to be a builder. He worked in Lebanon in restaurants and retail. He came to Australia in July 2013 on a student visa and between March and November 2015 he studied Certificates III and IV in Building Construction. He planned to complete a Diploma in Building Construction so that he could obtain a builder’s licence. Whilst studying here he also worked on weekends doing security work as well as working on occasion for the defendant as a carpenter.
9 In April 2015, while working part-time as a security officer, there was a fight after which he was charged with, and convicted of, robbery and recklessly causing serious injury. On 19 November 2015 he was sentenced to six months’ imprisonment and a two year Community Correction Order. As a result of his conviction, his student visa was cancelled. He spent five weeks in a detention centre in Melbourne before being sent to Christmas Island, where he spent three months. After an appeal, his student visa was reinstated and he arrived back in Melbourne on 1 September 2016.
The plaintiff’s evidence
10 Upon his return, he contacted the employer, a qualified carpenter, in order to obtain some work and on the job training helping him with carpentry work. He worked for the employer for a total of six days until the time of the accident on 18 September 2016, earning about $1,350 during that time.
11 On 18 September 2016 he was working with the employer on the renovation of a house in Reservoir. The employer instructed the plaintiff to hold a length of architrave on a wheel barrow, and he did so with his right hand, his fingers beneath it. The employer used a circular saw to cut the architrave but in doing so cut through the plaintiff’s right ring and little fingers.
12 The plaintiff had surgery to replant the fingers. He made a claim for compensation and received weekly payments until about March 2019. He had hand therapy and psychological counselling as well as some pain management. In his affidavits he indicated that had he not been injured he would have completed a Diploma in Building and Construction, and then would have obtained his builder’s licence and earned a good income.
13 He suffers from daily pain in the hand which interrupts his sleep and for which he takes Lyrica daily. He finds it difficult to write and holds his mobile phone with his left hand. He has been relatively inactive and put on weight which has given him back pain. He used to be extremely fit and regularly attend gym to use weights, box and row. He played table tennis regularly and would also play basketball, indoor soccer and volleyball. He used to be a keen swimmer. He no longer does any of these activities. He can no longer wash his car or hold tools with his right hand. He is restricted in doing the laundry, cooking and gardening. He does right hand exercises daily. He has not received any retraining or rehabilitation. He spends most of his time at his uncle’s house alone, watching television. He considers that he will be unable to get back to carpentry, building or shop fit out work.
14 At the hearing, the plaintiff agreed that his tax return for the financial year 2014/2015 did not declare the money he earned working in carpentry, sometimes one or two days per week, and said he did not know he needed to do so.
15 He said that Mr Ammouche was his only contact for doing carpentry work and that it was Mr Ammouche who obtained jobs and took him along to assist.
16 He strongly denied telling Dr Brasier in early November 2019 that he had been working part-time as a security officer for the previous 12 months, and said that Dr Brasier was mistaken about this.[4]
[4]T43.15.
17 He agreed that he did not attend the pain management program once the funding for it was finally approved, because he had been put off by the persistent requests for money in the pre-program stage.[5] He said that he had in any event been receiving treatment from his general practitioner, attending hand therapy, taking medication and seeing a psychologist regularly. He said that if further arrangements for a pain management program were made, he would undertake such a program. He owns a mobile phone but not a tablet or computer. He uses his right index finger to scroll with his right hand and can do his emails and banking on his phone. He was taken to the jobs proposed by vocational assessors. In relation to the roles of parking inspector or meter reader, he said that he gets a lot of pain in his right hand and does not know how long he could use it at work. He said that he takes medication for pain, and antidepressants, and that the medication affects his concentration. His depression makes him unwilling to go out. He has put on weight and cannot walk long distances because he gets a sore back. He said that he is trying to control his use of Lyrica, but suffers constant hand pain. He agreed it is a combination of his depression, medication and hand pain which prevents him from working.
[5]T28.30.
Evidence of Nazih Ammouche
18 Mr Ammouche is a self-employed carpenter who says in his affidavit sworn 29 November 2019[6] that in September 2016 the plaintiff helped him out on three to four carpentry jobs in 2015, and that they helped each other out depending on which of them sourced the jobs. The arrangement was that if the plaintiff found a job, they would split the profit in equal shares, but if Mr Ammouche sourced the job, he would pay the plaintiff $100 per day. On 8 and 9 September 2016 they went to a job in Coburg sourced by the plaintiff and they each received $550.00. He deposited the money into the plaintiff’s account. After this, the plaintiff asked Mr Ammouche to pay him in cash and the balance of the $1,350 paid to the plaintiff was paid in cash. On 18 September 2016 they returned to a job in Reservoir which Mr Ammouche had sourced, and the plaintiff was injured at that site. Mr Ammouche stated that he now sub-contracts his carpentry work to a third party and would be unlikely to have offered the plaintiff any work even if he had not sustained his right hand injury.
[6]Defendant’s Court Book (‘DCB’), p 190.
Medical evidence
19 The evidence of the plaintiff’s treating practitioners can be summarised briefly.[7]
[7]PCB, pp 17-55.
20 On 18 September 2016 the plaintiff underwent replantation of a completely amputated right ring finger and repair of a partially amputated right small finger. He had extensive post-operative hand therapy but complained of ongoing pain. When reviewed, he was diagnosed with a flexion contracture of both operated fingers. He was managed conservatively but continued to complain of pain. On 17 May 2018 a retained suture was discovered on ultrasound, and this suture was removed by a further procedure performed on 16 July 2018.
21 He continued to suffer chronic pain. As at the last consultation on 27 July 2018, the treating surgeon, Mr David McCombe, noted that the plaintiff still had chronic pain, as well as significant limitation of his range of motion in the two affected fingers and consequently restricted grip function with those fingers. He was unable to fully extend them to allow for grasp.[8]
[8]PCB, p 54.
22 In his report dated 1 April 2019,[9] Mr McCombe concluded that the plaintiff’s condition was stable but recommended that the plaintiff participate in a pain management program in order to improve his overall function. It was possible that he had flexor and extensor tendon adhesion and joint contracture which could be surgically treated, but the post-operative treatment would involve aggressive hand therapy which, given his current pain levels, he would not be able to participate in effectively. He concluded that the plaintiff did not have the capacity for lifting, gripping, pushing or pulling with his right hand, and that his social, recreational and domestic activities were restricted by his right hand function. He was unable to return to his pre-injury duties as a carpenter.
[9]PCB, p 52.
23 The plaintiff’s treating general practitioner, Dr Malek Kallab, reported on 18 February 2019[10] that the plaintiff remained in hospital for 18 days when he had his surgery and was very anxious about the outcome of surgery. After surgery he developed symptoms of depression and severe anxiety caused by his pain, inability to do sport, and consequential weight gain. The weight gain contributed to back pain. Whilst he had participated in physiotherapy, he had ceased doing so because of the pain in his hand and his depressed mood. His pain was being managed with Lyrica and analgesics. He was seeing a psychologist for his depression. He was reluctant to take antidepressants. Dr Kallab felt that it was unlikely that the plaintiff would return to his pre-injury occupation due to the loss of function of his hand.
[10]PCB, p 49.
Medico-legal reports
Reports of psychiatrists
24 Although the plaintiff did not pursue the application under sub-paragraph (c) of the definition of ‘serious injury’ in s 325(1) of the Act, the following reports are relevant to any issue of disentanglement.
25 Associate Professor Saji Damodaran reported on 13 February 2017[11] a complaint from the plaintiff of ongoing pain and stiffness of the affected fingers, and pins and needles in the whole hand. The pain was aggravated by any movement. He was unable to do many tasks, which affected his confidence and mood. A/Professor Damoradan diagnosed an Adjustment Disorder with anxious mood in related to the incident but felt that he was fit from a psychiatric point of view to work up to 20 hours per week in alterative duties depending on his physical condition.
[11]DCB, p 6.
26 On 3 January 2018, Dr Steven Adlard, assessed the plaintiff’s psychiatric impairment and diagnosed[12] an Adjustment Disorder with mixed anxiety and depressed mood and features of traumatisation. He noted that the plaintiff reported chronic pain in the affected fingers but felt that his “pain perception is exacerbated by his distressed psychological state”.[13] He felt that his prognosis was linked to his physical condition and that if he obtained better pain control and improved function in the right hand, he could return to some form of work.
[12]DCB, p 16.
[13]DCB, p 23.
27 On 4 July 2018, Dr Nitin Dharwadkar reported[14] that the plaintiff complained of constant pain in the affected fingers. He complained of an inability to drive for more than about seven minutes before stopping; problems with self-grooming and dressing; inability to exercise; inability to use a knife in his right hand; and a number of psychiatric symptoms. He diagnosed the plaintiff as suffering an Adjustment Disorder with mixed anxiety and depressed mood with periodic mild Post Traumatic Stress Disorder symptoms. He assessed the symptoms as fluctuating and generally mild in nature. He considered that the plaintiff had a psychiatric capacity for any suitable duties allowed by the physical injury, starting with eight hours per week.
[14]DCB, p 78.
28 Dr Justin Lewis reported on 26 February 2019[15] that the plaintiff complained of depressed mood. He also complained of chronic right hand pain with some numbness as well as a feeling of pins and needles in his hand. His right hand pain and limitations prevented him from doing gym, and from playing table tennis and volleyball; all of which he used to enjoy. He was limited to driving short distances. He was unable to do more than very light domestic duties. He had been seeing a clinical psychologist for the previous year but was not taking any medication. Dr Lewis diagnosed the plaintiff as presenting with a chronic Adjustment Disorder with depressive and traumatisation features, and also with a Chronic Pain Syndrome secondary to a general medical condition. Dr Lewis recommended referral to a psychiatrist for the introduction of an antidepressant to assist with mood symptoms and neuropathic pain. Dr Lewis considered that the plaintiff was completely incapacitated for all work as a result of his cognitive difficulties, depressed mood, poor motivation and pain symptoms.
[15]PCB, p 60.
29 On 14 October 2019, Dr Natalie Krapivensky, psychiatrist, reported[16] her conclusion that the plaintiff was suffering a work related Adjustment Disorder with depressed mood which had been further compounded by non-work related factors. She considered that the prognosis was for improvement. She considered that from a psychiatric perspective the plaintiff was fit to work in alternative employment as a parking inspector, meter reader, car park attendant or ticket attendant, initially 25 hours per week, building up to full-time within 12 months.
Reports of surgeons
[16]DCB, p 136.
30 Mr John Buntine, hand, plastic and reconstructive surgeon, assessed the plaintiff a number of times at the request of the WorkCover insurer. He reported on 24 January 2018[17] that the plaintiff complained of pain and tenderness in the affected fingers, and that he did not fully cooperate with the examination “consistent with the presence of a significant psychological condition”.[18] He felt that the affected fingers would be permanently physically abnormal but should improve sufficiently to allow use of the right hand, “and the middle finger should still be capable of recovering fully”.[19] He concluded that he was unable to complete an impairment assessment due to the plaintiff’s “abnormal illness behaviour”.[20] On 22 March 2018, Mr Buntine reassessed the plaintiff and noted that a better range of active movements of the joints was achieved. Mr Buntine considered that the recovery process of his right hand would be “so slow and incomplete”[21] that the plaintiff would be better to try to obtain alternative kinds of work. At that stage, the right hand had not stabilized because further minor surgery was required.
[17]DCB, p 28.
[18]DCB, p 32.
[19]DCB, p 28.
[20]DCB, p 34.
[21]DCB, p 42.
31 On 5 September 2018, Mr Buntine reported[22] that the plaintiff complained of ongoing pain for which he was taking Lyrica and Panadeine Forte. Mr Buntine assessed that the range of movement of the right middle finger was definitely abnormal as were the ring and little fingers. He concluded that there was permanent contracture in flexion of the right ring and little fingers and some limitation of movement of the right middle finger due to the surgery on the affected fingers. He noted that the plaintiff did not appear to use his unaffected fingers of the right hand to the extent possible.[23] However, he considered that the condition of the injured fingers had stabilised.
[22]DCB, p 52.
[23]DCB, p 56.
32 On 21 October 2019, Mr Buntine reported[24] that the plaintiff complained of ongoing pain in the right hand. He said that his right ring and little fingers remained curled up all of the time and that his right middle finger did not move fully. He was not using the hand because of the pain. He said he could not do any work, had difficulty writing and could only use his right index finger on a keyboard. Mr Buntine again diagnosed contracture of the right little and ring fingers and lessened movement of the right middle finger. He considered that the physical condition of the right hand had stabilised, and that the prognosis for doing any work in future appeared poor, although it was possible that the condition of the hand might improve. He considered that the plaintiff would not be able to do his pre-injury work but was well-educated and should be able to obtain alternative suitable employment (such as work as a parking inspector, meter reader, car park attendant, or ticket attendant) were it not for “an apparently moderately severe psychological/psychiatric condition”.[25]
[24]DCB, p 62.
[25]DCB, p 69.
33 Mr Murray Stapleton, surgeon, reported on 18 April 2019[26] that the plaintiff’s condition had stabilised, and that his right hand “has reached maximum medical improvement and no further surgery is recommended”.[27] He felt that the plaintiff would continue to require analgesics to manage his pain. He concluded: “[g]iven that he has had quite a profound injury involving his right, which is his dominant hand, his social, recreational and domestic activities are affected and his future capacity for employment is very much restricted”.[28]
[26]PCB, p 68.
[27]PCB, p 69.
[28]PCB, p 69.
34 Mr Ash Chehata, surgeon, reported on 22 May 2019,[29] receiving a complaint of ongoing pain in the right hand. On examination, he noted there was severe pain in the affected fingers, with all scars highly sensitive. He noted restrictions of range of movement in both fingers. He concluded that “this is a dysfunctional hand, with all power grip now lost due to the ring and little finger, the sole driving force behind power”.[30] He concluded that the prognosis was poor, with degeneration likely to continue, noting that the DIP joint of the little finger was already fused, and the PIP and DIP joints of the right finger and little finger likely to continue to degenerate. He noted that the plaintiff was now barely functional, unable to sleep at night due to symptoms, and unable to engage in any recreational activities or domestic chores. He concluded that the plaintiff was permanently incapacitated for his pre-injury employment and any alternative employment due to the ongoing and severe loss of function in his right hand.
Reports of occupational physicians
[29]PCB, p 72.
[30]PCB, p 75.
35 On 31 August 2018, Dr Joseph Slesenger, occupational physician, reported that the plaintiff’s presentation was consistent with his stated abilities.[31] He concluded that the plaintiff could not return to his pre-injury duties full-time but was capable of working with restrictions (no pushing, pulling, carrying or lifting more than 3 kgs; no firm right-sided pushing, pulling or turning; and no prolonged typing). He considered that the plaintiff would not be able to perform the roles of internal sales person, junior estimator, new home sales consultant, project office, or trade planner, as they were each likely to require prolonged typing or manual handling outside his capacity limits. He recommend that the plaintiff complete his pain management program. In a supplementary report dated 12 November 2018,[32] Dr Slesenger indicated that he was “generally optimistic”[33] about the plaintiff’s capacity to perform work as a meter reader, car park attendant or ticket attendant, but recommended caution in relation to the role of customer service officer (because it may involve prolonged typing). He recommended a job specific worksite assessment of the role of parking inspector as it may require him to type into a hand held device.
[31]DCB, p 101.
[32]DCB, p 111.
[33]DCB, p 113.
36 On 7 October 2019, Dr Dominic Yong, occupational physician, reported[34] that the plaintiff complained of contracture, pain and numbness as well as reduced movement in the affected fingers. The plaintiff was taking Lyrica (two tablets daily), Panadeine Forte (three to four tablets per week) and Valium (two to three tablets per week). He spent his time watching television and had given up his sports activities. He was unable to do the cooking, laundry, vacuuming or shopping. He was independent in his activities of daily living. On examination of the right middle finger, he noted mild to moderately reduced range or movement with mildly reduced power. He noted that in the right index finger and right wrist there was mild reduction in range of movement and power.
[34]DCB, p 115.
37 Dr Yong concluded that the plaintiff retained a capacity to work reduced hours in alternative duties (such as the roles of parking inspector; meter reader, car park attendant, and ticket attendant) with restrictions (no lifting more than 1.5kg with the right hand; no repeated firm gripping, squeezing, firm pushing or pulling with the right hand). Dr Yong recommended that he work nine hours per week to start and gradually increase to full-time hours over a period of six to nine months. He noted that the plaintiff’s psychological condition may be contributing to his presenting condition but that this should be assessed by a psychiatrist.
38 In a supplementary report dated 20 November 2019,[35] Dr Yong indicated that the roles of security officer (gatehouse control) and despatch clerk also complied with the recommended restrictions and would be considered suitable for the plaintiff to perform.
[35]DCB, p 133.
39 On 7 November 2019, Dr Kilner Brasier, occupational physician, reported[36] that the plaintiff complained of pain, stiffness, lack of dexterity and reduced function in the affected fingers, as well as lack of grip strength. His symptoms are aggravated by cold weather. He cannot hold tools in his right hand. Dr Brasier concluded that the injuries to the right hand have caused ongoing symptoms, significant restrictions in the function of his third, fourth and fifth fingers, and an inability to return to his pre-injury employment as a carpenter. There has also been a significant impact on his social, recreational and domestic activities. His disfigurement has led to social withdrawal. Dr Brasier noted that at the time of assessment, the plaintiff had been working weekends as a security officer,[37] and he considered that he was fit to continue doing so, but that he was permanently incapacitated for his pre-injury duties.
Vocational assessment report
[36]PCB, p 78.
[37]See paragraph 16 above regarding the plaintiff denying giving that history.
40 On 19 November 2019, a vocational assessment by Recovre[38] concluded that based on his education, work history and transferable skills, the suitable work options for the plaintiff were those of meter reader, price integrity officer, entry level clerical roles, and gatehouse security officer (pending licence renewal).
[38]DCB, p 157.
Legal principles
41 The plaintiff was under 26 years of age when he was injured. Section 325(2)(e)(i) of the Act states that the provisions of s 325(2)(f), requiring the plaintiff to establish that he has suffered a loss of earning capacity of 40 per cent or more (by comparing gross earnings which he was capable of earning in the period of three years before and after injury), have no application. This is because, as was explained in the Minister’s Second Reading speech:
…The government recognises that apprentices and workers undergoing training for the purpose of becoming qualified and in general terms workers under the age of 26 should not be subject of a six-year period of inquiry of earnings or earning capacity. In the case of such workers, a court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common law position prevails.[39]
[39]Victoria, Parliamentary Debates, Legislative Assembly, 23 May 2000, 1169 (Hon M Gould, Minister assisting the Minister for WorkCover).
42 The New South Wales Court of Appeal in State of New South Wales v Moss[40] provided guidance as to the process involved in fixing economic loss damages in circumstances in which earning capacity has been unquestionably reduced, but no precise evidence of relevant loss is available, as follows:
The task of the trier of fact is to form a discretionary judgment by reference to not wholly determinative criteria within fairly wide parameters. Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made since what is involved is not the finding of historical facts on the balance of probabilities of the assessment of the value of a chance it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility.[41]
[40](2000) 54 NSWLR 536.
[41]Ibid, [87].
43 In recent decisions of this Court[42] concerning the application of common law principles, the relevant considerations have been expressed as follows:
[42]Berthelot v Fleetweld Pty Ltd [2015] VCC 1453, Sassine v Maribyrnong Superstore Pty Ltd [2018] VCC 310, Francis v Woolworths Group Ltd [2018] VCC 627, Cosoleto v Malua Racing Pty Ltd [2018] VCC 709, and Hogan v Victorian WorkCover Authority [2018] VCC 2189.
· Evidence of past economic loss is some, although not conclusive, evidence of reduced earning capacity.
· It is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what the plaintiff is likely to earn after it.
· Where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work the plaintiff can perform, the court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment on a percentage basis or, otherwise, of the value of the lost capacity.
· The compensable loss is not a loss of income but the loss of capacity to earn income. It involves calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities.
· The task of the Court is to make a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.
Findings and reasons
44 I found the plaintiff to be a straightforward and credible witness. The account he gave of his pain and restrictions is consistent with what he reported to the many doctors who have treated him and to those who have examined him, and I accept it. Without repeating the details of his pain and restrictions, which I have outlined above, I indicate that I am satisfied that the pain and suffering consequences of the permanent impairment of the right hand are more than considerable when compared with other cases in the range of permanent impairments of the hand.
45 There is general agreement between assessing psychiatrists that the plaintiff suffers from an Adjustment Disorder with Anxiety and Depressed Mood. Three of the psychiatrists opined that on psychiatric grounds alone the plaintiff is capable of working in alternative duties, whether eight hours per week (to begin with, as suggested by Dr Dharwadkar), or 20 per week (as suggested by Dr Damodaran in 2017) or starting at 25 hours per week and building up to full time hours (as suggested by Dr Krapivensky in October 2019). Only Dr Lewis opined that the plaintiff has no work capacity on psychiatric grounds, although he is also the only psychiatrist to diagnose a Chronic Pain Syndrome in addition to a chronic Adjustment Disorder. The weight of psychiatric opinion is to the effect that the plaintiff does have a psychiatric capacity for suitable alternative employment, building up to full-time hours, and I accept that this is the case.
46 There is consensus among the three surgeons, whose reports I have referred to above, that the plaintiff has suffered a significant injury to his dominant right hand. Mr Buntine is the only one of these surgeons who opined that the plaintiff is physically capable of doing the jobs of parking attendant, meter reader, etc, but is prevented from doing so by his “apparent moderately severe psychological/psychiatric condition”.[43] I take it that he was influenced in this regard by the opinion of Dr Lewis but did not have the benefit of the more recent opinion expressed by Dr Krapivensky.[44] On the other hand, Mr Stapleton and Mr Chehata each opined that the plaintiff has, respectively, either a very limited capacity for suitable alternative employment, or none at all, due to the seriousness of his right hand symptoms. I accept Mr Chehata’s opinion that the plaintiff has sustained a very significant loss of function in his dominant right hand. I consider that, leaving aside any psychological sequelae of the injury to the right hand, there is a clear organic basis for the permanent inability of the plaintiff to perform his pre-injury work or to work, as he intended, as a builder.
[43]DCB, p 69.
[44]DCB, pp 62-63.
47 I am satisfied on the evidence before me, that the plaintiff is permanently incapacitated for his pre-injury duties but retains some residual capacity for suitable alternative employment. This conclusion is consistent with the plaintiff’s evidence to the effect that he hopes one day to try a job[45] but that he is currently held back from doing so for a combination of reasons including his right hand impairment, his psychological state and the impact of medication taken for both of these conditions on his mental functioning.[46]
[45]T37.19, T37.26 and T40.11.
[46]T37.22 and T40.30.
48 As to the plaintiff’s residual work capacity, occupational physicians, Dr Slesenger and Dr Yong, have each opined that the plaintiff is fit to work with restrictions as a meter reader, car park attendant, or ticket attendant. Dr Yong also felt that the plaintiff was fit to work as a parking inspector, despatch clerk and security officer (gatehouse control).[47] To this list, Recovre has added the positions of price integrity officer and entry level clerical roles. Even if he retains the physical capacity to perform the roles of meter reader, car park attendant or parking inspector, it is unclear how many hours per week the plaintiff would ultimately be able to work in these positions, due to his chronic pain and the impact of the medication he takes for this pain on his level of functioning.
[47]Dr Brasier’s report is of little assistance as it is based on an erroneous belief that the plaintiff has been working as a security guard.
49 Had he not been injured, the plaintiff, a graduate in Mechanical Engineering, would have completed the Diploma of Building and Construction, obtained a builder’s licence, and worked as a builder. There is no evidence before me as to what he would be earning if he were working as a builder.
50 However, taking into account the common law principles set out above at paragraphs 42-43 above, I am satisfied that as a result of the permanent impairment suffered to the function of the right hand, the plaintiff’s reliable earning capacity has been permanently reduced by something well over 50% when compared to that which would have existed had he not been injured.
51 I am therefore satisfied that his loss of earning capacity will be productive of financial loss which meets the statutory threshold established by the Act.
Conclusion
52 For these reasons, leave is granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering and economic loss in respect to the right finger injuries sustained at work on 18 September 2016.
53 I will hear the parties on the question of costs and on the form of the orders to be made.
0
7
0