Ammerlaan v DC Roof Tiling Pty Ltd

[2015] VCC 1421

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-14-02868

KANE ROBERT AMMERLAAN	Plaintiff
v
DC ROOF TILING PTY LTD	First Defendant
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2015
DATE OF JUDGMENT:	5 November 2015
CASE MAY BE CITED AS:	Ammerlaan v DC Roof Tiling Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2015] VCC 1421

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:             Serious injury – Worker under 26 years of age – Pecuniary loss

Legislation Cited:     Accident Compensation Act 1985 s134AB(38)(e)

Cases Cited:State of New South Wales v Moss [2000] NSWCA 133; Capper v Munday Sales Pty Ltd and Anor [2013] VCC 1015 (Judge Millane); Jarvis v Woolworths Ltd [2012] VCC 1329 (Judge Brooks)

Judgment:                 

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Purcell with Mr M Fogarty	Slater & Gordon Ltd
For the Defendant	Mr A Moulds QC with Mr A Saunders	Minter Ellison

HIS HONOUR:

Introduction

1       Kane Ammerlaan is currently 21 years of age.  He commenced work as an apprentice roof-tiler employed by the first defendant on 1 February 2010.

2       Six weeks into his apprenticeship, on 13 March 2010, he was injured when cement came into contact with his left eye.  He has suffered in effect a total loss of vision in that eye.

3 The proceeding concerns an application by Mr Ammerlaan for leave to claim damages for pain and suffering and pecuniary loss in accordance with the provisions of s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”).

4       The defendants concede that the plaintiff has a serious injury that entitles him to bring proceedings for the recovery of pain and suffering damages only.  The sole issue in dispute in this application is whether or not the plaintiff can satisfy the necessary threshold for the court to grant leave for him to claim damages for loss of earning capacity.

5 The parties were in agreement that the provisions of s134AB(38)(e)(i) and (ii) are applicable in this case. Due to the plaintiff’s age at the date of the injury there is no statutory requirement to ascertain Mr Ammerlaan’s “without injury” earning by reference to the statutory period three years pre and post-injury. Nevertheless, leave cannot be granted unless I am satisfied that Mr Ammerlaan presently suffers, and will continue to suffer, a loss of earning capacity which will be productive of financial loss of 40 per centum or more.

The evidence

6       Mr Ammerlaan had sworn affidavits on 5 December 2013 and 6 August 2015 which were tendered in evidence and form part of Exhibit A.  Additionally, an affidavit from Mr Kevin Somerville, a managing director of Cairns Roofing Contractors Pty Ltd, was put into evidence.  This affidavit exhibited wage records relating to a roof-tiler employed for approximately 20 years.

7       The medical material was tendered in evidence without objection, and is not controversial at least in so far as it concerns the nature and extent of the injury suffered by Mr Ammerlaan.

8       Dr David Kaufman, ophthalmic surgeon, examined Mr Ammerlaan on 31 October 2013.  He described the injury as a corneal burn to the left eye caused by concrete splashing.  This resulted in extensive corneal scarring and the growth of inflammatory scar tissue at the corneal periphery.  He goes on to describe the extent of injury in further detail, which it is unnecessary to repeat here.

9       Dr Kaufman described the consequence of the injury as “the loss of vision and glare interferes with any outdoor activity involving eye/hand coordination”.[1]  He regarded the condition as essentially stabilised and did not see a role for any further treatment such as a corneal transplant.

[1]Exhibit B, page 84

10      A report from Dr Stephen O’Hagan dated 1 June 2015 expressed a similar view as to diagnosis and future treatment.  Dr O’Hagan practices in Queensland as an ophthalmic surgeon.  Dr O’Hagan commented as follows:

“Kane should wear polycarbonate protective eyewear to protect the vision of his other eye.  I believe this will make him more careful in his social and domestic activities, however it does not preclude him from driving a motor vehicle and leading a normal lifestyle, provided he protects his right eye.”[2]

[2]Exhibit A, page 49

11      The plaintiff relied upon three reports from Dr David Middleton, an occupational health and rehabilitation consultant.  Dr Middleton has provided three medico-legal reports to the plaintiff’s solicitor between 18 November 2013 and 13 September 2015.  In his first report, Dr Middleton opined that Mr Ammerlaan had the capacity to:

“perform highly restricted duties, noting in particular his poor reading and concentration endurances varying between 5 and 15 minutes.”[3]

[3]Exhibit A, page 59

12      He also expressed concern that the plaintiff would be unable to engage in work operating machinery or involving dexterous activities due to his loss of depth perception and stereoscopic vision.  He expressed a similar opinion in his second report in May 2015, stating:

“Mr Ammerlaan is significantly restricted in areas of reading and concentration and as such, his endurances vary between 5 and 15 minutes and as such, he would need to be able to perform his work in a self-paced manner and take work breaks as required.  This would be best overcome by rotation of types of duties required, which seems to be covered in Mr Ammerlaan’s present employment.”[4]

[4]Exhibit A, page 74

13      Dr Middleton provided a supplementary report, essentially commenting on a vocational assessment and labour-analysis report which had been supplied to the defendant by Ms Joanne Bryant, occupational therapist, in June 2015.[5]  I note that Dr Middleton was quite sceptical of some of the options suggested as suitable employment for the plaintiff in Ms Bryant’s report.  Quite frankly, tasks such as “sales and marketing manager, training and development professional and recruitment consultant” seem to have little relevance to the background, experience, or qualifications of Mr Ammerlaan.  I will comment further on those matters when analysing the evidence.

[5]Exhibit 1, pages 6–28

14      The plaintiff also relied upon two reports from Annette Webster of Flexi Personnel dealing with the plaintiff’s capacity for work and his likely future earnings.  These reports were dated 18 September 2013 and 8 September 2015.[6]  I will deal with the substance of these reports when analysing the evidence.

[6]Exhibit A, pages 87–92

15      The final piece of evidence relied upon by the plaintiff was a summary of his taxable income in the years ended 30 June 2010, 30 June 2011 and 30 June 2014.[7]

[7]Exhibit A, page 93

16      The defendant tendered medical reports from a number of ophthalmologist consultants: Dr Robert West, Dr David Gale, Dr Marc Sarossy and Dr Mark Lazarus.  There was also a report from the initial treating ophthalmologist at the Royal Victorian Eye and Ear Hospital, Dr Christine Chen.

17      The concise opinion from Dr Sarossy in his report dated 20 June 2011[8] provides an insightful analysis of the restrictions which the plaintiff is likely to face in the labour market.  The most recent ophthalmological opinion is that from Dr Robert West in March 2015.[9]  In relation to the diagnosis and capacity for employment, Dr West states:

“Mr Ammerlaan’s left eye is legally blind.  His right eye has normal vision.

Mr Ammerlaan’s main symptoms are related to loss of vision of his left eye.  He reported also increased sensitivity to light of his left eye, occasional watering and sensitivity to atmospheric irritants.  He said the sustained close work causes strain on his right eye.”[10]

[8]Exhibit 1, page 55

[9]Exhibit 1, pages 29–31

[10]Exhibit 1, page 31

18      Dr West believed that the condition of the left eye had improved slightly with respect to inflammation; however, there had been no improvement of his visual function.  The opinion continued, describing a difficulty with depth perception and a further opinion that active treatment of the corneal disease would be unlikely to result in any improvement.

19      The further material relied upon by the defendant was an affidavit of Rachel Hill, solicitor, exhibiting extracts from the plaintiff’s Instagram account.[11]  The two vocational assessments were also put into evidence on behalf of the defendant.  The first of these was a vocational assessment report dated 20 March 2012 prepared by Ms Kristen Leijer from Nabenet.  The more recent opinion was expressed by Ms Joanne Bryant from CoWork Pty Ltd on 18 June 2015.[12]

[11]Exhibit 1, pages 5a–5r

[12]Exhibit 1, pages 6–28

20      The initial vocational assessment prepared by Ms Leijer in March 2012 identified the following positions as suitable employment options for the plaintiff:

·     handyperson

·     dispatch clerk

·     warehouse administrator

·     counter sales assistant (hardware).

21      At the time of that assessment Mr Ammerlaan had actually returned to work with his grandfather’s clothing business, Embroidered Club Sportswear.  According to the history taken by Ms Bryant in June 2015, it would seem that Mr Ammerlaan worked with his grandfather for about six or seven months and then moved to Queensland to reside with his father.  There followed a period of about twelve months of unemployment, and then he obtained work as a security guard in a nightclub in June 2013.  Thereafter he obtained work in January 2014 as a car detailer, and finally in February 2015 he commenced his present employment with Reece Plumbing in Cairns as a customer sales assistant.

22      In Ms Bryant’s most recent vocational assessment, positions are identified as follows:

·     internal sales clerk (customer service clerk)

·     sales representative

·     sales and marketing manager

·     training and development professional

·     recruitment consultant.[13]

[13]Exhibit 1, pages 6–28

23      Mr Ammerlaan has clearly shown a degree of endeavour and willingness for retraining since suffering the injury to his left eye.  What is abundantly clear from the vocational assessments undertaken on behalf of the defendant is that he is fit for a variety of potential occupations largely in the service industry but clearly unfit for physical type roles and effectively anything which is demanding of his limited vision.  The comment recorded by Ms Bryant in relation to his brief employment as a security guard is as follows:

“It was scary.  I couldn’t risk getting punched in the [right] eye then I couldn’t see and I was sick of working nights.”[14]

[14]Exhibit 1, page 16

24      His present employment working in a plumbing supplies business as a customer-service assistant would seem to fit well with his retained employment capacity.  Whether or not that limited period of employment and his retained skills make him suitable for consideration as a manager or a service professional remains to be seen.  Much of the cross-examination on this point by Mr Moulds QC, who appeared with Mr Saunders for the defendant, was of limited assistance, as the propositions put to the plaintiff concerning promotion to positions such as assistant manager were essentially speculative in nature.[15]

[15]Transcript (“T”) 30, Line (“L”) 15–T31, L30

25      In re‑examination he gave evidence that with computer work he would be limited to periods of perhaps half an hour between breaks.[16]

[16]T32, L19–29

Analysis

26      The sole issue for determination between the parties is whether or not the plaintiff has satisfied the relevant statutory test to be granted leave to claim damages in respect of pecuniary loss.  By reason of his age he is not required to satisfy the statutory test by reference to the requirements of s134AB(38)(f)(ii).

27      In closing address Mr Moulds QC analysed the legal framework correctly in my view, stating that there was a two-stage process for the plaintiff to establish an entitlement to leave.  First the Plaintiff needed to satisfy the court that as at the date of hearing he had a loss of earning capacity of 40 per centum or more.[17]  The second requirement was for Mr Ammerlaan to establish on the balance of probabilities that he will:

“after the date ... of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more.”[18]

[17]Section 134AB(38)(e)(i)

[18]Section 134AB(38)(e)(ii)

28      Mr Purcell, who appeared with Mr Fogarty for the plaintiff, submitted that the approach to be taken where a worker was under the age of 26 years at the date of injury was the “usual” common law position as outlined by the statement concerning this provision in the Parliamentary Second Reading Speech.[19]

[19]Accident Compensation (Common Law and Benefits) Bill 13 April 2000 at Hansard page 1003 per the Honourable Mr Cameron (Minister for WorkCover) – “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.”

29      I was referred to State of New South Wales v Moss[20] as to the general methodology to be undertaken in making such an analysis.  In that case Heydon JA (as he then was) stated:

“There are two uncontroversial themes running through the cases relating to the assessment of damages for injury to earning capacity.  One is that in general it is desirable for precise evidence to be called as to what the plaintiff would have been likely to earn but for the injury and what the plaintiff is likely to earn after it.  The second is that the failure to call such evidence does not necessarily result in selection of only a nil or nominal figure as damages for impaired earning capacity.”

[20][2000] NSWCA 133 at [66] per Heydon JA

30      In the present case I am faced with evidence on behalf of the plaintiff suggesting that the potential earning capacity for a roof-tiler is between $37,953 and $95,592, with the median income being $53,043.[21]  Additionally, the plaintiff relies upon the affidavit of Mr Somerville in support of the proposition that an employee of Cairns Roofing, one Martin Hill, had an annual salary of $76,960 in April 2014.[22]  I note that Mr Hill has some 20 years’ experience as a roof-tiler.  I also note that the material provided in Mr Somerville’s affidavit deposes to a company vehicle being provided, and there is no value ascribed to that benefit.

[21]Exhibit A, page 87

[22]Exhibit A, page 40

31      In the defendant’s written submissions, Mr Moulds pointed out that the plaintiff is currently earning $1,767 gross per fortnight with his current employer, which annualises to an amount of $45,942.  If a comparison is made with the earnings of the roof-tiler with 20 years’ experience, a 60 per cent figure would equate to $45,583.  The defendant submits that the plaintiff has therefore not satisfied the first requirement for leave to be granted; that is, that he presently suffers a 40 per cent loss of income.

32      I was referred also to two decisions of this court, the first being Jarvis v Woolworths Ltd[23] per Judge Brookes.  In that case, his Honour was also referred to State of New South Wales v Moss.  His Honour summarised the analysis further as follows:

“… [W]here a plaintiff has suffered a significantly disabling injury which obviously affects the range and nature of the work he can ... perform, a tribunal of fact 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.[24]

...

The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss.  ... [It is an issue of] calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities.”[25]

[23][2012] VCC 1329

[24]State of New South Wales v Moss (op cit) at [69]

[25]Moss at [71]

33      I was also referred to the decision of Capper v Munday Sales Pty Ltd and VWA[26] per Judge Millane.  Her Honour also referred to the Hansard debates concerning the introduction of the legislation, the passages from Heydon JA in Moss, and his Honour Judge Brookes’ earlier decision in Jarvis v Woolworths Ltd.

[26][2013] VCC 1015

34      In both cited decisions from the County Court, their Honours undertook the relevant analysis by considering in effect the ongoing restrictions placed upon the particular plaintiffs in terms of availability of potential present and future employment opportunities.  Her Honour Judge Millane stated as follows:

“    The plaintiff’s evidence was to the effect that his physical symptoms and the compromised function of his left hand since the injury had made it difficult for him to exercise any residual earning capacity in regular employment which required manual dexterity, repetitive use of his left hand, exposed the amputation site to knocks and bumps or required lifting or carrying weights.”[27]

[27]Capper v Munday Sales Pty Ltd and VWA at [150]

35      His Honour Judge Brookes in the earlier case made reference to relevant medical opinion, noting that the plaintiff:

“... will need considerable support in order to be able to enter the workforce in a non-physical capacity.”[28]

[28]Jarvis v Woolworths Ltd at [24]

36      I accept the argument advanced by the defendant that an analysis of the precise figures set out in Mr Somerville’s affidavit construed in a particular manner do not produce an arithmetic result that would demonstrate that the plaintiff’s current earnings are precisely no more than 60 per cent of what might be earned by a roof-tiler of 20 years’ experience based upon rates current in 2014.

37      Such an analysis in my view is not consistent with the methodology outlined by Heydon JA in Moss and is consistent with the assessment of an actual loss of earnings rather than the assessment of a present and future impairment of earning capacity.  In that case the task of the trial judge was described as forming “a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.”[29]

[29]Moss at [87]

Findings of fact

·     I am satisfied in this case that the pre-injury capacity of the plaintiff was unimpaired in so far as his ability to perform unrestricted physical activity consistent with a range of tradesman-like occupations, including that of a roof-tiler.

·     By reason of his injury, the plaintiff presently suffers an impairment of his ability to engage in occupations which might require manual dexterity involving depth, perception, and/or expose him to potential risk of damage to his remaining useful eye.

·     The plaintiff has made appropriate and reasonable endeavours towards retraining and reskilling but is effectively limited to a class of employment outside the range of trade-type employment whereby he could achieve the stated goal of establishing his own business.  Such a restriction would also necessarily impair the plaintiff’s ability to effectively perform as a police officer, which was also a stated ambition in his affidavit.  This is consistent with his evidence concerning his apprehension about further eye damage whilst working as a security officer.

·     The plaintiff’s ability to perform unrestricted office work involving extensive computer use is also compromised by the strain placed upon his sight whilst working extensively at a computer screen.  This further impacts upon his employability in non-physical areas.

·     The present position of the plaintiff, being under the direction of both a manager and an assistant manager, can provide little guidance as to whether the plaintiff could presently perform a higher role, or would as a matter of probability qualify for a higher-ranked role, at some foreseeable time in the future.  The plaintiff’s work history with his current employer is limited to several months, and I can only be satisfied that he is currently performing his role satisfactorily, but there is no evidence to suggest that promotion or reclassification is necessarily likely to occur.  Any conclusion as to the probability or otherwise of a change in the plaintiff’s present employment or particularly his earning capacity would be at best speculative.

38      I am satisfied that the loss of binocular vision and the destruction of the plaintiff’s capacity to work in his preferred trades field has impacted to at least a very considerable extent upon his present and future earning capacity.  A precise monetary comparison based upon actual earnings is not required by statute, nor is it appropriate in the present case.

39      Exercising matters of judgment and assessment as best I am able, I find that the plaintiff suffers a present loss of earning capacity in excess of 40 per cent of his pre-injury capacity for earning.  There is no submission nor any medical evidence to support a positive change in his medical condition in the foreseeable future sufficient to establish an increased capacity to earn.  I therefore find that his present loss of earning capacity is likely to continue on a permanent basis at not less than 40 per cent of his pre-injury earning capacity.

Conclusion

40 I am satisfied that the plaintiff has established a loss of earning capacity which can be assessed by reference to the statutory requirements as satisfying the strictures of s134AB(38)(e)(i) and (ii) of the Act. I therefore propose to grant leave to the plaintiff to claim damages in respect of pecuniary loss and pain and suffering damages.

41      I will hear the parties in relation to formal orders sought and any question of costs.

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