Apostolopoulos v Victorian WorkCover Authority
[2024] VCC 2125
•12 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-02491
| JOHN APOSTOLOPOULOS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3-4 June 2024 | |
DATE OF JUDGMENT: | 12 December 2024 | |
CASE MAY BE CITED AS: | Apostolopoulos v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2125 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right knee – pain and suffering – economic loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 325
Cases Cited:Church v Echuca Regional Health (2008) 20 VR 566; [2008] VSCA 153; Dordev v Cowan and Ors [2006] VSCA 254; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Popal v Transport Accident Commission [2023] VSCA 222; The Herald & Weekly Times v Jessop [2014] VSCA 292; Ellis Management services Pty Ltd v Taylor [2013] VSCA 326; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Davidson v Transport Accident Commission [2015] VSCA 12; Peak Engineering v McKenzie [2014] VSCA 67
Ruling:Application for leave to issue proceedings for pain and suffering damages granted
Application for leave to issue proceedings for pecuniary loss damages dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Frederico with Ms J Zhu | Zaparas Lawyers Pty Ltd |
| For the Defendant | Mr W R Middleton KC with Ms K Bradey | Wisewould Mahony |
HER HONOUR:
Introduction
1Mr Apostolopoulos injured his right knee in an incident on 10 April 2021 while working for Hickory HR Pty Ltd (“the employer”).
2Mr Apostolopoulos claims that his injury is a “serious injury” pursuant to s 325(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) and seeks leave to issue proceedings for pain and suffering damages and economic loss damages.
3At the hearing, Ms J Frederico and Ms J Zhu of Counsel appeared on behalf of Mr Apostolopoulos and Mr W R Middleton KC and Ms K Bradey of Counsel appeared on behalf of the defendant, the Victorian Workcover Authority (“VWA”).
4The relevant impairment of body function under paragraph (a) of the definition of “serious injury” is the right lower leg. There was no dispute between the parties that Mr Apostolopoulos suffered a compensable injury to his right leg.
5The relevant legal principles are well known and were not in dispute.
6Whilst the VWA did not concede the issue of pain and suffering, the focus of the VWA’s submissions was on credit and the claimed pecuniary loss consequences.
7The pecuniary loss issues related to the calculation of Mr Apostolopoulos’ “without injury” earning capacity and his “with injury” earning capacity.
8I have considered all the tendered evidence, Mr Apostolopoulos’ oral evidence and the submissions of Counsel, but I shall only refer to the materials to the extent necessary in these reasons.
9For the reasons that follow, I have determined that the application for leave to issue proceedings for pecuniary loss damages fails and the application for leave to issue proceedings for pain and suffering damages succeeds.
Background
10Mr Apostolopoulos is a 49 year old man. He has two teenage children with his former wife. He lives with his current partner.[1]
[1] Plaintiff’s Exhibit P1, Plaintiff’s Court Book (“PCB”) 18.
11He completed Year 12 and a motor mechanic apprenticeship. He worked as a motor mechanic for fifteen years, before moving into work as a service manager at a number of car dealerships.[2]
[2] Plaintiff’s Exhibit P1, PCB 18.
12In 2010, he commenced working with the employer as a general labourer.[3] In 2017, he was made redundant by the employer. He returned to work at a car dealership for a short period of time and then did some labouring work with another employer.
[3] Plaintiff’s Exhibit P1, PCB 19.
13In November 2017, he returned to work as a labourer for the employer. His duties included forklift work, traffic management and other general labouring work in the construction industry.[4]
[4] Plaintiff’s Exhibit P1, PCB 19.
The work injury
14On 10 April 2021, Mr Apostolopoulos was moving a pallet with an electric pallet jack when the brakes failed and his right leg was crushed between the jack and a forklift.[5] He attended St Vincents Hospital where imaging of his right knee and leg revealed a broken fibula and torn meniscus.[6]
[5] Plaintiff’s Exhibit P1, PCB 19.
[6] Plaintiff’s Exhibit P8, PCB 73.
15On 9 December 2021, he had surgery in the form of a right knee arthrolysis, medial meniscal debridement, chondroplasty and a manipulation under anaesthesia. Surgery had been delayed as Mr Apostolopoulos had developed a DVT.
16Mr Apostolopoulos did not have a good outcome from the surgery.
17On 10 June 2022, he had a second operation in the form of a repeat right knee arthroscopic debridement.[7]
[7] Plaintiff’s Exhibit P5, PCB 53-54.
Post-injury employment
18Mr Apostolopoulos returned to light duties with the employer shortly after the second operation. He worked for one day before he decided that his knee condition precluded him from continuing to work in the construction industry.[8] He applied for and was granted voluntary redundancy in August 2022.[9]
[8] Trancript (“T”) 49, Line (“Line”) L5-17.
[9] T48, L7-15.
19After the redundancy, Mr Apostolopoulos began informally assisting his cousin at an Ultra Tune store (“the store”) in Mentone. He formally commenced full-time employment at the store in April 2023.
20In November 2023, Mr Apostolopoulos was promoted to store manager. He deposed that his role involved 50% light mechanical duties and 50% administrative/customer service duties.[10]
[10] Plaintiff’s Exhibit P1, PCB 25.
21At the time of the hearing, Mr Apostolopoulos remained employed as the store manager on a full-time basis, working approximately five hours of overtime each week, a total of 43 hours per week. He is currently earning $94,640 gross per annum/$1,820 gross per week.
The hearing
22The hearing proceeded in the usual way.
23Mr Apostolopoulos gave oral evidence and was cross-examined. He was the only witness called.
24Mr Apostolopoulos tendered affidavits sworn by him, medico-legal reports, medical records, radiology reports, correspondence relating to his WorkCover claim, an earnings report and payslips form his current job. A chronology and two outlines of submissions were also produced.
25The VWA tendered an affidavit sworn by Ms Poly Kiosses sworn 8 March 2024, surveillance footage, medico-legal reports, social media posts, payslips, tax returns, suitable employment reports, job advertisements and correspondence regarding Mr Apostolopoulos’ post injury employment. The VWA produced a summary of surveillance video and an outline of submissions.
Mr Apostolopoulos’ evidence
Pain and suffering consequences
26Mr Apostolopoulos set out his claimed impairment consequences in three affidavits sworn 11 January 2023, 16 November 2023 and 13 May 2024.[11] These included:
· Worsening pain, swelling and discomfort in his right knee, which varied from moderate to strong pain depending on what he did each day;
· A need to elevate and ice his knee most nights;
· Random collapsing of the knee;
· Avoidance of a number of activities including running, sitting for long periods and bending his knee;
· Disrupted sleep due to pain, causing tiredness and difficulty concentrating;
· Reduced capacity for domestic duties particularly gardening, mowing the lawn and anything involving the use of a ladder;
· Cessation of bicycle riding. Prior to the injury, this activity was a big part of his life and he regularly cycled 25-35 kilometres after work;
· Difficulty fishing. Prior to the injury, he would fish from various locations (off piers, the beach and rock walls) but since the injury he limited himself to fishing whilst seated on piers;
· Impact upon his relationship with his partner and children, including greater reliance on his partner to assist with his children and to carry out certain domestic tasks. He was also unable to play sports with his children, specifically football with his son and bike riding with his daughter.
[11] Plaintiff’s Exhibit P1, PCB 18-29 and 84-87.
27Mr Apostolopoulos was cross-examined about a number of the claimed impairment consequences outlined above, as well as his current treatment regime. The following evidence emerged:
· Mr Apostolopoulos remained steadfast in his evidence that he iced his knee each night;[12]
· He had not seen his treating surgeon or sought any investigation of his knee since 2022;
· He had not seen his General Practitioner regarding his right knee for a number of years;[13]
· He was not undergoing any physiotherapy and was not taking prescription medication for the knee;
· He said he took 4 Panadol tablets during the day and a couple of Nurofen tablets at night.[14] He also used Voltaren anti-inflammatory cream; and
· Mr Apostolopoulos said his first affidavit was incorrect when he said that he gardened and mowed his lawns less frequently post-injury. Mr Apostolopoulos clarified that by the time he swore that affidavit he had engaged a gardener and had ceased gardening and mowing entirely.[15]
[12] T71, L23-31.
[13] T74, L14-17.
[14] T74, L7-13.
[15] T23, L18-31 – T24, L1-21.
28Mr Apostolopoulos was cross-examined about a number of Facebook posts which displayed various bicycles for sale.[16] Mr Apostolopoulos agreed that he repaired and sold a few bicycles after his injury. He said a number of the bicycles either did not sell or he decided to keep them for his children. He advised he stopped selling bicycles approximately 12 months ago.[17]
[16]See: T25-27 and Defendant’s Exhibit 12, Defendant’s Supplementary Court Book (“DSCB”) 83-87, 88-94.
[17] T27, L29-31.
29Mr Apostolopoulos was unable to explain why his first affidavit mentioned his passion for bicycle riding but did not refer to repairing and selling vintage bicycles.[18]
[18] T24, L23-28.
30I accept Mr Apostolous’ explanation that his involvement with buying and selling bicycles was a small hobby. The issue was a minor matter and did not assist the Court in its determination.
Post-injury employment
31Mr Apostolopoulos said he commenced assisting his cousin at the store from approximately August 2022 onwards.[19] His cousin was the only other person who worked in the store. Mr Apostolopoulos said he would help out as a way to get out of the house and repay his cousin who had previously repaired his car. He said he was not paid for all the time he spent at the store and that by January 2023, he had received only $3,000 to compensate him for his assistance.
[19] T17, L8-18.
32He further said there were no set hours when he first assisted at the store. There were some weeks he did not go into the store at all. He said that he never worked a full day and never attended in excess of 25 hours a week from August 2022 to January 2023.[20] He also confirmed the store was open Monday-Saturday.
[20] T16, L23-28.
33Mr Apostolopoulos said that he mostly did administrative tasks with some light mechanical work currently.[21] He said this involved preparing for the upcoming work including drawing invoices, ordering any necessary parts, liaising with customers about additional work required to their car and answering phone queries.
[21] T14, L13-15.
34His evidence was that he was currently limited to light mechanical work which could be done without him needing to pivot off his feet or get under the car. The light work included changing air filters, applying service stickers or stamping log books.[22]
[22] T17, L2-6.
35Mr Apostolopoulos formally commenced as an employee at the store on 17 April 2023.[23] From that date onwards, he worked full-time with minimal overtime. He resigned from this role on 5 June 2023, and re-commenced one month later.[24]
[23] See: T12, L5-14 and Defendant’s Exhibit D14, DSCB 115.
[24]See: T12, L5-19.
36Mr Apostolopoulos was cross-examined about ceasing work at the store only to return a month or so later. He was taken to a payslip for the period 5 June 2023 to 11 June 2023 (after his resignation) which recorded he continued to receive a wage from the store. The inference was that he had resigned but was still being paid.
37Mr Apostolopoulos said that he gave notice on 5 June 2023 but continued to work for a few weeks afterwards. I accept this explanation.
38Mr Apostolopoulos said his cousin ceased operating the store in November 2023 and a new operator took over the store, at which time Mr Apostolopoulos commenced as the store manager. He remained in that role at the time of the hearing.[25]
[25] See: T10, L28-31 and Defendant’s Exhibit D15, DSCB 114.
Surveillance
39The VWA played surveillance footage totalling 5 hours and 36 minutes. The footage was taken on the following days:
·7 February 2023;[26]
[26] Defendant’s Exhibit D1.
·11 February 2023;[27]
[27] Defendant’s Exhibit D1.
·12 February 2023;[28]
·2 March 2023;[29]
·8 March 2023;[30]
·24 March 2023;[31]
·29 May 2023;[32]
·2 June 2023;[33]
·9 October 2023;[34] [35]
·21 November 2023;[36]
·22 November 2023;[37]
·1 March 2024.[38]
[28] Defendant’s Exhibit D1.
[29] Defendant’s Exhibit D2.
[30] Defendant’s Exhibit D3.
[31] Defendant’s Exhibit D4.
[32] Defendant’s Exhibit D5.
[33] Defendant’s Exhibit D5.
[34] Defendant’s Exhibit D6.
[35] Defendant’s Exhibit D7.
[36] Defendant’s Exhibit D8.
[37] Defendant’s Exhibit D8.
[38] Defendant’s Exhibit D9.
40I have reviewed the surveillance footage and note that it showed Mr Apostolopoulos at the store on the above dates carrying out a range of activities, including:
· opening and closing the store on the same day;
· remaining at the store for more than 10 hours;
· moving a tyre display in and out of the shop and stacking tyres to build a display;
· wheeling a motorbike out of the shop and putting it to one side;
· holding a squat and kneeling;
· attending the store on a Sunday; and
· washing the engine of a car, fixing a tail light and lifting a tyre on a mag wheel.
41Mr Apostolopoulos admitted that he was the person depicted in the footage.[39]
[39] See, for example: T33, L18-24, T36, L16-23, T53, L21-26 and T52, L13-23.
42Senior Counsel for the VWA put to Mr Apostolopoulos that his activities in the surveillance footage contradicted his Affidavits and his oral evidence to the Court prior to the surveillance being shown. Mr Apostolopoulos disagreed with that proposition.
43In explaining the apparent discrepancy between his affidavits and evidence to the Court, Mr Apostolopoulos said his cousin had experienced marital difficulties in early 2023 which meant at times his cousin was unable to attend the store regularly.[40] The tenor of his evidence was that his cousin’s personal issues meant that occasionally Mr Apostolopoulos had to open and close the store and remain there all day on his own.
[40] T33, L26-31 – T34, L1-5.
44When questioned as to how often this occurred, Mr Apostolopoulos said it was only on isolated occasions but could not recall exactly how many times.[41]
[41] See: T36, L24-29 and T43, L17-18.
45Mr Apostolopoulos accepted that he did not display any obvious discomfort in the footage but maintained that he experienced discomfort whilst squatting and kneeling.[42] He said that that the tasks he was seen performing were not particularly strenuous.[43] He said that the mag wheel he lifted weighed 5-10 kilograms and that the tyre display rack he moved was on wheels and easy to manoeuvre.[44]
[42] T59, L28-31 – T60, L1-6.
[43] T34, L7-28.
[44] T53, L4-7.
46Whilst Mr Apostolopoulos accepted he was seen spending time in the workshop performing some mechanical work, he maintained he did not perform any of the heavier duties, such as tuning cars. He also denied that he regularly changed car tyres for customers.[45]
[45] T44, L6-24.
47Mr Apostolopoulos could not recall why he attended the store on a Sunday when he said the store was closed. He suggested he may have been changing over a car but there was no further explanation.
48Senior Counsel for the VWA put to Mr Apostolopoulos that he had not been forthright with a number of medico-legal examiners about his role at the store.
49It was put to Mr Apostolopoulos that when he attended Dr Saxby on 21 February 2023, he advised him he was not really working and was just helping a friend doing some administrative work. It was put that this was a misrepresentation of his hours and duties at that time. In response, Mr Apostolopoulos said he could not recall whether he told Dr Saxby this.[46]
[46] T19, L3-17.
50It was also put to Mr Apostolopoulos that he told Dr Haynes on 8 March 2023 that he could not squat. It was submitted that this was contradicted by the surveillance footage. In response, Mr Apostolopoulos denied telling Dr Haynes he could not squat. He said there had been a miscommunication and that he in fact told Dr Haynes that when he did squat he experienced pain.[47]
[47] T36, L3-15.
51It was finally put to Mr Apostolopoulos that he told Dr Haynes he was assisting at the store by carrying out customer service and invoicing work up to four hours each day. It was asserted that such a history was contradicted by the surveillance footage which showed him regularly performing manual work in excess of four hours each day. Mr Apostolous disputed this and maintained he did predominantly perform administrative work at the store.[48] He otherwise did not offer any explanation as to why he was observed on surveillance working in excess of four hours a day on a number of occasions in early 2023.
[48] T21, L9-17.
52In re-examination, Mr Apostolopoulos said when he was at the store, he spent the majority of his day inside the office performing administrative duties, and using a stool to elevate and rest his leg.[49] He said he was limited to minor mechanical work, such as changing oil and that he avoided heavier tasks such as removing suspension components .[50]
[49] T79, L5-9.
[50] T79, L25-31 – T80, L1-4.
53In re-examination he said that his son was working at the store as an apprentice and this removed a lot of the pressure on him to perform heavier tasks. This was the first time that his son was mentioned in this context.
Findings on reliability
54I have had regard to the guidance provided by the Court of Appeal in the case of Church v Echuca Regional Health[51] (‘Church’) about the use of surveillance film to discredit a plaintiff.
[51]Church v Echuca Regional Health (2008) 20 VR 566; [2008] VSCA 153.
55The surveillance has not been shown to any doctors for their commentary. In accordance with Church, I will not speculate as to whether they would or would not have altered their opinions if they were shown the surveillance.[52]
[52]Ibid at [100].
56I am mindful of what the Court of Appeal has said in cases such as Dordev v Cowan and Ors[53] and Petrovic v Victorian WorkCover Authority,[54] and most recently in Popal v Transport Accident Commission,[55] in relation to a plaintiff’s reliability in serious injury applications.
[53][2006] VSCA 254.
[54][2018] VSCA 243.
[55][2023] VSCA 222.
57It is clear that a plaintiff’s reliability is relevant, not only to the question of whether his evidence should be accepted: it is also relevant to the reliability of the medical evidence presented, because the opinions of doctors are essentially dependent on the credibility and reliability of the history given to them by a plaintiff.
58The issue here is that the surveillance footage showed a level of activity beyond what Mr Apostolopoulos has asserted.
59Lead Counsel for Mr Apostolopoulos submitted he was under observation for a total of 105.75 hours, across a total of seventeen days and noted that only approximately six hours of footage was tendered. It was not said that the footage was edited in any way.
60The VWA attempted to impugn the credit of Mr Apostolopoulos, on the basis he was not forthcoming with a number of medical examiners regarding his role at the store and on the basis his self-reported pain and restrictions were contradicted by the surveillance footage.
61I do not consider Mr Apostolopoulos’ credit was impugned. I accept that the nature of his work at the store evolved over time from an informal ad-hoc arrangement to a more regular and formalised role.
62This is not a case where Mr Apostolopoulos has intentionally deceived medical examiners by failing to disclose that he was working. He consistently reported to medical examiners that he was either assisting or working in the store. However, the medical examiners may not have been informed of the hours he attended the store or the nature of the work undertaken which was revealed by the surveillance footage.
63Lead Counsel for Mr Apostolopoulos submitted the Court should accept he spent the majority of his time at work in the office with his leg up on a stool. It was said that there was no footage of this as his office was internal. In essence, the plaintiff submitted the surveillance footage was not a complete picture of Mr Apostolopoulos’ day.
64I do not accept that submission that the surveillance footage was not a complete picture of his day. The surveillance footage was persuasive evidence of the hours worked and the nature of the work being undertaken at the store.
65I find that the surveillance footage depicted Mr Apostolopoulos at the shop on some occasions for more than 10 hours in a single day and often on his own. His movements appeared fluid and unrestricted, and he did not appear to have a limp.
66I find that the surveillance footage confirmed that Mr Apostolopoulos undertakes both mechanical work and administrative work.
67I find Mr Apostolopoulos’ reliability was impugned by the surveillance footage which causes me to doubt his description of restrictions on his capacity for work. I have therefore looked for other evidence to evaluate the extent of such restrictions and their impact on his life.
Lay Affidavits
68Mr Apostolopoulos did not tender any lay Affidavits.
69The VWA invited the Court to draw an adverse inference regarding Mr Apostolopoulos’ failure to produce any evidence from his current partner, his current employer (believed to be Shan Wickramasinghe) and his cousin Osmond/Ozzie who had first employed him at the shop.[56]
[56]T99, L2-20.
70There has been no explanation for the absence of these witnesses. The Court was informed that Osmond/Ozzie was in Queensland, however this would not prevent him from providing an Affidavit to support Mr Apostolopoulos.
71I am not prepared to draw an adverse inference on the failure to call his current employer. It is not known whether the current employer was aware of this claim.
72However, in the absence of any real explanation about the failure to call Osmond/Ozzie or his current partner, I am prepared to draw an adverse inference and find that their evidence would not have assisted Mr Apostolopoulos.
Radiology
73Mr Apostolopoulos tendered ultrasounds and MRI scans of his right knee.[57]
[57]Plaintiff Exhibit P8, PCB 73-80.
74There is no need to set the radiology out in detail, as there was no real dispute as to the nature of the injury sustained.
Medical evidence
Mr Apostolopoulos’ treating practitioners
Dr Hazel Addison, General Practitioner (“GP”)
75Mr Apostolopoulos tendered a short report from Dr Addison, dated 7 May 2021,[58] which confirmed that he had attended the Sandringham Ambulatory Care Centre with a DVT following a fracture of the right patella and proximal fibula.
[58]Plaintiff Exhibit P3, PCB 30.
Mr Jarrad Stevens, Orthopaedic Surgeon
76Mr Apostolopoulos tendered a series of letters from Mr Stevens.[59] Mr Stevens performed the initial surgery on Mr Apostolopoulos in December 2021.
[59]Plaintiff Exhibit P4, PCB 31-37 and 45-49.
77In a letter to the WorkCover insurer dated 4 February 2022, Mr Stevens stated that Mr Apostolopoulos had a successful right knee arthroscopy which had cleared away a significant amount of scar tissue, stabilising the meniscal tear and chondral flap. Mr Stevens recommended further physiotherapy before a return to work was considered.[60]
[60] Plaintiff Exhibit P4, PCB 47.
78In a questionnaire dated 21 April 2022,[61] Mr Stevens noted that Mr Apostolopoulos was undergoing physiotherapy but was unlikely to return to pre-work activities or construction-type work.[62] He suggested he may return to some full-time work in 4-6 months with restrictions on standing, sitting, bending, lifting and use of the right knee.[63]
[61] Plaintiff Exhibit P4, PCB 48-49.
[62] Plaintiff Exhibit P4, PCB 49.
[63] Plaintiff Exhibit P4, PCB 49.
Mr Sam Patten, Orthopaedic Surgeon
79Mr Apostolopoulos tendered a series of letters and an operation report from Mr Patten.[64]
[64]Plaintiff Exhibit P5, PCB50-55.
80Mr Apostolopoulos came under the care of Mr Patten in March 2022. Mr Patten performed the second arthroscopy on 10 June 2022.[65]
[65] Plaintiff Exhibit P5, PCB 53.
81In a letter to Dr Bhargava of Centre Road Medical Clinic,[66] Mr Patten said that he had observed quite a bit of degeneration on the patellar articular surface but there was no exposed bone signifying advanced arthritis.[67]
[66]Mr Apostolopoulos’ GP at the time.
[67] Plaintiff Exhibit P5, PCB 54.
82In a further letter to Dr Bhargava dated 19 July 2022, Mr Patten confirmed Mr Apostolopoulos continued to complain of persisting pain and dysfunction in the right knee.[68] He recommended regular rehabilitation, regular Voltaren and further review.[69]
Mr Apostolopoulos’ medico-legal material
[68] Plaintiff Exhibit P5, PCB 55.
[69]Mr Apostolopoulos confirmed he had not returned to Mr Patten after July 2022.
Mr Raf Asaid, Orthopaedic Surgeon
83Mr Apostolopoulos tendered two reports from Mr Asaid dated 15 August 2023 and 27 November 2023.[70]
[70]Plaintiff Exhibit P6, PCB 56-62.
84Mr Asaid examined Mr Apostolopoulos on 15 August 2023, when he recorded difficulty squatting, irritability and marked crepitus in the right knee, a large knee joint effusion and tenderness to palpation over both the medial and lateral joint line.[71]
[71] Plaintiff Exhibit P6.
85At that time, Mr Apostolopoulos confirmed he was working five days a week (40 hours total) performing administrative duties.[72] Given this, Mr Asaid considered he had capacity for administrative-type roles with restrictions on pushing, pulling, lifting, squatting, kneeling and the use of stairs and ladders.
[72] Plaintiff Exhibit P6, PCB 57.
86Mr Asaid opined that the prognosis was guarded as the recorded degenerative changes would continue to cause a degree of pain and restriction into the foreseeable future.
87Mr Asaid provided a supplementary report dated 27 November 2023.[73] He did not re-examine Mr Apostolopoulos. He confirmed that he relied upon the history given by Mr Apostolopoulos at the time of his examination in August 2023. This included the history that he was working in alternative administrative-type work (40 hours per week).
[73] Plaintiff Exhibit P6, PCB 61-62.
88In the supplementary report, Dr Asaid reviewed a Recovre Suitable Employment Report dated 19 September 2023.[74] He considered the roles of Automotive Service Advisor, Automotive Parts Interpreter and Construction/Electrical Spotter were within Mr Apostolopoulos’ capacity, so long as they were in accordance with the restrictions outlined in his initial report. He provided a caveat that such matters would be more suitably considered by an Occupational Physician.
[74]Defendant Exhibit D18, DSCB 8-27.
Dr Kilner Brasier, Occupational and Environmental Physician
89Mr Apostolopoulos tendered two reports from Dr Brasier dated 2 October 2023 and 27 November 2023.[75]
[75]Plaintiff Exhibit 9, PCB 63-72.
90Dr Brasier examined Mr Apostolopoulos on 3 August 2023.[76] Dr Brasier observed an antalgic gait favouring the right lower limb, as well as wasting of the quadriceps and calf musculature and slight swelling in the medial aspect of the right knee. In terms of range of movement, Dr Brasier noted extension was within normal limits (with reports of pain at the extreme) whilst flexion was reduced to 100 degrees (the normal being 130 degrees).
[76] Plaintiff Exhibit P7, PCB 63-68.
91Dr Brasier considered Mr Apostolopoulos’ prognosis was guarded, as he was likely to suffer further degenerative changes in his right knee and would likely require further orthopaedic surgical treatment in the future.
92Dr Brasier considered Mr Apostolopoulos had retained a capacity for work with restrictions on squatting, kneeling, crouching and avoidance of walking on uneven terrain, up inclines, down declines, up or down stairs and long distances. He also commented he could not negotiate ladders.
93Dr Brasier provided a supplementary report dated 27 November 2023.[77] He did not re-examine Mr Apostolopoulos. Dr Brasier provided his opinion regarding Mr Apostolopoulos’ capacity to undertake the roles of Construction/Electrical Spotter and Dogman, Automotive Service Advisor and Automotive Parts Interpreter. He considered the Spotter Role was outside Mr Apostolopoulos’ physical capacity. He was supportive of the Automotive Service Advisor role, with the exception of moving truck vehicles as this would require Mr Apostolopoulos to climb in and out of truck cabins. He was also supportive of the Automotive Parts Interpreter role, provided there was no requirement to traverse stairs, meaning the role would either need to be at ground level, or a lift provided.
VWA’s medico-legal material
[77] Plaintiff’ Exhibit P7, PCB 69-72.
Dr Terence Saxby, Orthopaedic Surgeon
94The VWA tendered a report from Dr Saxby dated 21 February 2024, which was prepared after Dr Saxby examined Mr Apostolopoulos on 17 February 2023.[78]
[78] Defendant Exhibit D10, DSCB 5-10.
95Dr Saxby recorded slight swelling of the right knee and some medial and joint line tenderness and crepitus. He observed both knees were stable to ligamentous testing (cruciate and collateral) and the range of motion of the right knee was 120 degrees (the left was 130 degrees). He stated Mr Apostolopoulos did not walk with a limp.
96Dr Saxby considered Mr Apostolopoulos’ reported pain and symptoms were likely to be permanent and commented there might be some long-term deterioration.
97In terms of restrictions, Dr Saxby recommended Mr Apostolopoulos avoid any activities that caused him to bend his knee. Dr Saxby therefore recommended he avoid all activities and vocations which required him to squat, kneel, walk up or down stairs and lift heavy objects. Dr Saxby considered he could lift up to 15 kilograms intermittently but that he should avoid any repetitive lifting, especially from the ground.
98At the examination, Mr Apostolopoulos reported he was “not really working” but had been helping a friend with some administrative work in an Ultra Tune store.
99Dr Saxby commented Mr Apostolopoulos could increase to full-time hours in an administrative or light manual-type role, so long as the work did not increase the load across his patellofemoral joint.
Dr Philip Haynes, Occupational Physician
100The VWA tendered three reports from Dr Haynes dated 10 March 2023, 27 September 2023 and 12 October 2023.[79]
[79]Defendant Exhibit D11, DSCB 11-20; 41 -46.
101Dr Haynes first examined Mr Apostolopoulos on 8 March 2023,[80] at which time he recorded Mr Apostolopoulos walked with a slight limp favouring his right leg. During examination, he recorded both knees were stable with right knee flexion limited to 90 degrees, compared to 130 degrees on the left.
[80] Defendant Exhibit D11, DSCB 11-17.
102Dr Haynes first examined Mr Apostolopoulos on 8 March 2023.[81] Mr Apostolopoulos reported he was performing part-time work from home restoring and selling vintage bicycles and working up to 4 hours per day, performing invoicing and customer service work at his friend’s Ultra Tune store.
[81] Defendant Exhibit D11, DSCB 11-17.
103Dr Haynes considered Mr Apostolopoulos could work full-time in any role so long as he was not required to climb ladders or stairs, squat, kneel or lift more than 15 kilograms once every five to ten minutes and could sit or stand from time-to-time. He specifically considered he had capacity to perform office-based administrative duties, customer service type work, process or assembly work and bicycle mechanic jobs.
104Dr Haynes prepared a supplementary report dated 27 September 2023.[82] This was a report on the papers. Dr Haynes considered whether Mr Apostolopoulos had capacity for the specific roles of Automotive Service Advisor, Automotive Parts Interpreter and Construction/Electrical Spotter. Dr Haynes opined that Mr Apostolopoulos could perform full-time work in such roles.
[82] Defendant Exhibit D11, DSCB 19-20.
105Dr Haynes prepared a third report dated 12 October 2023, after re-examining Mr Apostolopoulos.[83] During the examination, Mr Apostolopoulos reported he was now working full-time at Ultra Tune as a motor mechanic, performing mechanical and administrative duties. He reported that lifting heavy wheels caused increased right knee pain and that, whilst squatting or kneeling, he supported most of his weight on the left leg.
[83] Defendant Exhibit D11, DSCB 41-46.
106Dr Haynes noted that such a role would require standing, walking, squatting, kneeling, bending and lifting on a regular basis.
107Dr Haynes recorded restricted right knee movement, with flexion limited to 90 degrees on the right, compared to 140 degrees on the left knee.
108In this report, Dr Haynes said he was “doubtful” as to whether a genuine effort was made with the right knee flexion.[84] Dr Haynes confirmed Mr Apostolopoulos was able to squat fully and rise, mainly using his left leg, but was unable to walk on his toes and heels due to right knee pain.
[84] Defendant Exhibit D11, DSCB 43.
109Dr Haynes confirmed his earlier opinion that Mr Apostolopoulos could undertake the roles of Automotive Service Advisor, Automotive Parts Interpreter and Construction/Electrical Spotter on a full-time basis.
Commentary on the medical material
110Dr Addison’s report is dated 7 May 2021 and deals with a single attendance. Given its date and brevity, it is of little assistance to the Court. Other than the report of Dr Addison, no material from Mr Apostolopoulos’ treating GP has been tendered.
111Mr Stevens has not seen Mr Apostolopoulos since 2022. At that time he considered that Mr Apostolopoulos could not return to pre-injury work, which is not an issue in dispute in this case. Mr Stevens offered no opinion as to Mr Apostolopoulos’ capacity for alternative work. Accordingly, his letters provide little assistance to the Court in resolving the issues in dispute.
112Mr Patten has also not seen Mr Apostolopoulos since 2022. He did not provide an opinion on ongoing symptoms, work capacity or prognosis. His material does not assist the Court.
113Mr Asaid was under the impression that Mr Apostolopoulos was working in a sedentary role but nonetheless was generally supportive of the suitable employment jobs suggested by the VWA, with the caveats provided in his reports.
114Dr Brasier supported the proposition that, with the exception of the dogman job, Mr Apostolopoulos was able to undertake a range of alternative employment.
115Dr Saxby was also under the impression that Mr Apostolopoulos was involved in a sedentary job and this impacts upon his opinion.
116The only person who expressed doubts as to whether Mr Apostolopoulos was making a genuine effort in the clinical examination was Dr Haynes in his third report. He did not provide any detail to support this contention. Given his clinical findings on examination were almost identical in his first and third reports, and given the other medical opinions which are consistent with the radiology, I reject his opinion on this point.
Pecuniary loss
117The Court has to determine whether Mr Apostolopoulos has suffered a reduction in his earning capacity which satisfies the requirements of s 325(2)(e) of the Act.
118In order to establish the relevant level of consequences in respect of loss of earnings, Mr Apostolopoulos must establish, at the date of the hearing, that:
(a) the relevant loss has satisfied the narrative test in s325(2)(b) and (c), namely that the loss of earning capacity consequences when judged by comparison with other cases in the range of possible impairments or losses of a body function, were fairly described as being more than significant or marked, and as being at least very considerable;
(b) that he has sustained a loss of earning capacity of 40 per cent or more, as set out in s325(2)(e)(i) equivalent to 40 per cent of gross earnings measured as set out in s325(2)(f); and
(c) pursuant to s325(2)(e)(ii), he will continue permanently to have such a loss of earning capacity.
119In summary, the appropriate sequence for the Court to follow is:
· determine Mr Apostolopoulos’ “without injury” earning capacity;
· calculate the amount which is 60 per cent of the “without injury” earning capacity; and
· determine whether Mr Apostolopoulos has proved that his “with injury” earning capacity is no greater than 60 per cent of the “without injury” earning capacity.
120The plaintiff is currently earning $94,640 gross per annum/$1,820 gross per week.
121For the reasons that follow, I am not satisfied that Mr Apostolopoulos meets the serious injury test for pecuniary loss.
Without injury earnings
122The parties could not agree what figure best reflected the plaintiff’s without injury earnings.
123Lead Counsel for Mr Apostolopoulos submitted the Court should accept one of the following three without injury earning figures:
· $175,535.94 gross per annum;
· $169,774.56 gross per annum; or
· $165,006.56 gross per annum.
124The first figure ($175,535.94) was said to be extrapolated from Mr Apostolopoulos’ taxation return for the year ending 30 June 2020 (being the last full year worked before his injury). It was not the actual figure in the taxation return.
125The second figure ($169,774.56) was extracted from a Flexi Personnel earning report dated 22 April 2024.[85] This figure was calculated by Flexi Personnel by taking Mr Apostolopoulos’ base earnings for the year ending 30 June 2020 and then adding annual wage increases up to 1 March 2024. The wage increase figures were taken from a collective agreement applicable within the construction industry.
[85] Plaintiff Exhibit P9, PCB 81-83.
126The third figure ($165,006.56) took the second figure of the Flexi Personnel report and then added an amount to account for shift allowances. The shift allowance figure was taken from a letter addressed to Mr Apostolopoulos from his WorkCover insurer dated 22 April 2021,[86] which was provided to him for the purposes of calculating his Pre-Injury Average Weekly Earnings.[87] (“PIAWE”)
[86]Plaintiff Exhibit P2, PCB 9-17.
[87] Plaintiff Exhibit P2, PCB 9.
127On the basis of the above figures, Lead Counsel for Mr Apostolopoulos submitted the applicable 60 per cent gross per annum figures were:
· $105,322.56;
· $101,865; or
· $99,004.
128Lead Counsel for Mr Apostolopoulos maintained on any of the above figures, Mr Apostolopoulos met the requisite 40 per cent pecuniary loss test, as he was currently earning $94,640 gross per annum.[88] Implicit in that submission was the assertion that Mr Apostolopoulos could not currently earn more than $94,640.
[88]Plaintiff’s Exhibit P10, Plaintiff’s Court Book 88-89, being two payslips covering the period 15 April 2024 – 28 April 2024 and 29 April 2024 to 12 May 2024.
129The VWA submitted that as Mr Apostolopoulos’ pre-injury earnings varied in the years prior to the injury, the correct approach was to calculate his average gross income for the three years prior to the injury.[89] This approach accounted for the variation in earnings and allowances within Mr Apostolopoulos’ pre-injury tax returns. On this basis, the VWA submitted the pre-injury earning figure was $127,344.[90] In relying upon that figure, the VWA submitted the relevant 60 per cent figure was $76,440. This appears to be a miscalculation as 60 per cent of $127,344 is $76,406.40.
[89] T49, L21-26.
[90]The VWA relied upon the following gross figures, as taken from Mr Apostolopoulos’ tax returns for the period 2018-2020 inclusive: $108,684, $150,170 and $147,932.
130The VWA relied upon an alternative figure of $133,161.57. This figure was taken from comparable earnings exhibited to the affidavit of Ms Poly Kiosses. This affidavit is dealt with in further detail below. In summary, the defendant took the average of four years of earnings by this comparable employee, totalling $133,161.57. The VWA submitted the relevant 60 per cent figure was $79,896.94. This alternative figure relied on earnings which post-dated Mr Apostolopoulos’ injury.
131Regardless of which figure was adopted, the VWA submitted the pecuniary loss application failed, as Mr Apostolopoulos was currently earning more than either of the two figures it relied upon.
Findings on without injury earnings
132Section 325(1)(f)(ii) requires the Court to determine what figure “most fairly reflects” the worker’s earning capacity had the injury not occurred.
133This is not an easy task. In order to determine Mr Apostolopoulos’ “without injury” earnings, I am required to decide which of the following four scenarios most fairly reflects his earning capacity, if the injury had not occurred:
(a) the gross income that the plaintiff was earning during the period of three years before the injury;
(b) the gross income that the plaintiff was capable of earning from personal exertion in the three years before the injury;
(c) the gross income the plaintiff would have earned in the three years after the injury, if the injury did not occur;
(d) the gross income the plaintiff would have been capable of earning from personal exertion in the three years after the injury, if the injury did not occur.
134The assessment of “without injury” earning capacity is to be approached on the basis that it represents a capital asset which, when exercised, produces income from personal exertion.[91]
[91]The Herald & Weekly Times v Jessop [2014] VSCA 292 [53].
135Mr Apostolopoulos’ actual earnings in the three taxation years prior to the injury were:
· 2018 financial year: $108,684 (which included $10,319 in allowances);[92]
· 2019 financial year: $150,170 (which included $13,431 of in allowances);[93] and
· 2020 financial year: $147,932 (which included $13,660 in allowances).[94]
[92]Defendant Exhibit D16, DCB 117-118.
[93]Defendant Exhibit D16, DCB 119-120.
[94]Defendant Exhibit D16, DCB 121-122.
136Mr Apostolopoulos’ actual earnings in the three taxation years after the injury were:
· 2021 financial year (noting that the injury occurred in April 2021): $134,997 (which included $9,893 in allowances);[95]
· 2022 financial year: $93,423;[96] [it was not clear how much of this figure were actual earnings from personal exertion and how much were WorkCover payments];
· 2023 financial year: no material was produced.
[95]Defendant Exhibit D16, DCB 123-125.
[96]Defendant Exhibit D16, DCB 126-127.
137Evidence of a worker’s actual earnings will not always be the best evidence of the worker’s earning capacity. The Court must assess all the evidence to determine which scenario most fairly reflects the worker’s earning capacity.
138In order to understand the figures, it is necessary to understand Mr Apostolopoulos’ work history including the nature of this industry he worked in and the type of payments/bonuses/allowances which were available.
139Mr Apostolopoulos provided little information in his affidavits about his pre-injury earnings. In his first affidavit, he said that in around November 2017 he was re-employed by the employer as a general labourer. He said that he loved that work as he was earning “roughly double” what he had been earning before.[97]
[97]Plaintiff Exhibit P1, PCB 19 [6].
140In his second affidavit he said that in the last full financial year prior to the injury he received income from personal exertion of $147,932, which included $13,660 in unidentified allowances. He asserted that according to an award, he would have been entitled to bi-annual pay increases which would have meant that his wages would have gone up as follows:
· 1 October 2021: 2.5%
· 1 March 2022: 2.5%
· 1 October 2022: 2.5%
· 1 March 2023: 2.5%
· 1 October 2023: 1.75%
141In his second affidavit he then extrapolated those increases to the sum of $147,932 to assert that, at as at November 2023, he would have been earning a gross salary from personal exertion of $175,535.94.
142I find this was an incorrect calculation because the base figure used of $147,932 included allowances. According to the relevant taxation return, his actual earnings for that year were $134,272. There was no evidence before the Court to suggest that the bi-annual pay increases applied to the allowances.
143Mr Apostolopoulos did not give any evidence about the pattern of work he performed in the three years prior to injury.
144In his third affidavit[98] he said that he was regularly paid allowances which included travel allowances, site allowances and crib allowances. He said that the allowances varied from job to job. He asserted that the allowances were increased in accordance with changes in the award. There was no independent evidence to support this assertion.
[98]Plaintiff Exhibit P1, PCB 85 [6].
145The VWA tendered an affidavit from Ms Poly Kiosses from the employer. Her position was described as “General Counsel and Director of People.”[99] Ms Kiosses’ evidence was that work at the employer, in the construction industry, was not guaranteed and employees were paid at a rate which took this into account; and there were likely to be times when construction-related employees were out of work.
[99]Defendant Exhibit D17, DCB 3-7.
146Ms Kiosses’ affidavit exhibited pay records for a number of construction employees who had worked for the defendant from April 2021 to the date of the Affidavit (8 March 2024). It was asserted these employees were comparable employees.
147The pay records produced by the defendant showed a variation of wages as follows:
· 2022 financial year: a range of figures from $132,261 - $140.327;
· 2023 financial year: a range of figures from $129,586 - $130,470.
148Ms Kiosses was not required for cross-examination. Even though her evidence was unchallenged, it is unclear whether her figures included allowances.
149The VWA challenged the Flexi Personnel report on the grounds it did not account for any fluctuation of earnings or availability of work within the construction industry.[100] To support such submissions, the VWA relied upon Ms Kiosses’ evidence which had not been challenged.
[100] T111, L10-30.
150I find that the figures put by Lead Counsel on behalf of Mr Apostolopoulos do not fairly reflect Mr Apostolopoulos’ earning capacity had the injury not occurred. The first figure was said to be a figure adjusted from Mr Apostolopoulos’ 2020 taxation return. The basis for the adjustment was not fully explained, but appears to be based on Mr Apostolopoulos’ incorrect calculation set out earlier. I reject this figure as it is inaccurate.
151The second figure was prepared by extrapolating figures from the Flexi Personnel report. It was clear from the Flexi Personnel report that they had been asked to provide the average percentage increase Mr Apostolopoulos would have been entitled to from 20 June 2020 to 3 June 2024. Flexi Personnel advised they were unable to provide an accurate estimate. In these circumstances, I am unable to accept the second figure.
152The third figure used a figure from Flexi Personnel and extracting a shift allowance figure from a letter from Xchanging. That letter calculated PIAWE at $2,291 which included $545 for overtime and $171 for shift allowances.[101]
[101]Plaintiff Exhibit P2, PCB 9-17.
153Using the PIAWE figure within this letter, Mr Apostolopoulos’ annualised earnings, including overtime and shift allowances, would be 46 x $2,291 = $105,386 (based on 6 weeks not working during the year due to holiday/illness/periods of being out of work). Even if one applied the PIAWE figure to 52 weeks the calculation is 52 x $2,291 = $119,132.
154Consequently, I reject the third figure proposed by the plaintiff as it is not a true reflection of the PIAWE assessment.
155I prefer the VWA analysis as, in my view, it most fairly reflects Mr Apostolopoulos’ earning capacity had the injury not occurred. The first figure put by the VWA was based on an average of earnings and did not involve adjustment or extrapolation.
156I reject the alternative figure submitted by the VWA of $79,896 based on Ms Kiosses’ Affidavit. It is unclear whether the figures included allowances and therefore may be inaccurate.
157I find that the appropriate figure for pre-injury earning capacity is $127,344: 60 per cent of which is $76,406.
158As Mr Apostolopoulos is currently earning in excess of that figure, his application for leave to issue a proceeding claiming pecuniary loss damages fails.
159If I am incorrect in my assessment of “without injury” earnings, and if the “without injury” earnings figure is higher, I have considered the issue of suitable employment.
VWA submissions on suitable employment
160The VWA submitted that the following jobs constituted “suitable employment” for Mr Apostolopoulos:
· Automotive Service Advisor;
· Automotive Parts Interpreter – front counter;
· Automotive Mechanic.
161The VWA relied upon the earnings figures set out in two reports:
· A redacted report of Recovre dated 19 September 2023; and[102]
· A report of Recovre dated 11 March 2024.[103]
[102]Defendant exhibit D18, DSCB 8-27.
[103]Defendant exhibit D19, DSCB 28-37.
162Additionally, the VWA relied upon a number of advertisements for roles within the automotive industry, including an advertisement for an Automotive Motor Mechanic/Service Technician/Apprentice/Manager for Ultra Tune Melton.[104]
[104]Defendant exhibits D20, D21, D22, D23, D24, DSCB 38 – 59.
163The VWA submitted that the plaintiff was capable of earning between $67,600 - $110,000 per annum in the Automotive Service Advisor role. In relation to the Automotive Mechanic Job, the VWA asserted that the wages were in the region of $80,000 - $109,000 per annum.[105]
[105]T61, L23-30.
164During cross-examination, Senior Counsel for the VWA took Mr Apostolopoulos to a number of job advertisements for the alternative positions to seek his comment on the roles:
· Automotive Mechanic at Ultra Tune:[106] Senior Counsel put to Mr Apostolopoulos that this role was very similar to what he was currently doing. Mr Apostolopoulos accepted he could do this role but went on to clarify that he was limited in terms of the mechanical work he could perform.[107] Senior Counsel for the VWA put that the salary for this position was advertised at $80,000 - $109,999 per annum. Whilst Mr Apostolopoulos accepted he may be at the upper end of such a salary range due to his industry experience, he clarified that the matter of salary was a grey area, as the figure was ultimately a matter to be determined by the franchisee at each individual Ultra Tune store;[108]
· Automotive Service Advisor/Automotive Service Manager:[109] Senior Counsel took Mr Apostolopoulos to a number of advertisements for service advisor and manager positions at various car dealerships. Mr Apostolopoulos confirmed he had worked in such roles previously and was qualified for this role.[110] However, he said his knee precluded him from returning to such work as it involved long hours and overtime, walking long distances and provided limited opportunity to sit and rest at a desk.[111] In terms of earnings, the advertised positions ranged between $90,000 - $120,000.
[106] See: Defendant Exhibit 20 – 21, DCB 38-45.
[107] T61, L23-31 – T62, L1-5 – T62, L27-29.
[108] T62, L6-12.
[109] See: Defendant Exhibit 22-24, DCB 46-59.
[110] T64, L5-8.
[111] See: T64, L12-24, T66, L1-5 and T67, L7-8.
165The VWA relied upon the opinions of Mr Asaid, Dr Brazier and Dr Haynes, who all supported Mr Apostolopoulos as having capacity to undertake the roles of automotive service advisor and automotive parts interpreter.
166In written submissions, the VWA submitted the surveillance footage demonstrated that Mr Apostolopoulos had the capacity to walk, stand, squat, kneel, repetitively lift and stack tyres, construct a tyre rack and move a motorbike with no apparent difficulty. It was therefore submitted there was no physical barrier to him performing the largely administrative-based duties of an Automotive Service Advisor and Automotive Parts Interpreter.
167The VWA submitted surveillance had shown Mr Apostolopoulos at times spent 12 hours in a single day at the Ultra Tune store, demonstrating that he did in fact have capacity for longer hours.
168The VWA submitted the real reason Mr Apostolopoulos was not interested in such positions was stated in his affidavit, namely that he had children and other responsibilities and did not want to get another job that interfered with his home duties.
Mr Apostolopoulos’ submissions on suitable employment
169Lead Counsel for Mr Apostolopoulos urged the Court to reject the suitable employment positions relied upon by the VWA for the following reasons:
· The best evidence of Mr Apostolopoulos’ capacity was his current work and his evidence was that he was working at his full capacity;
· Mr Apostolopoulos deposed in his second affidavit that he applied for and secured a job as an automotive service advisor but only remained in the position for one day, as the hours were too long and did not provide a flexible working environment;[112]
· The position of Auto Service Advisor was unsuitable because the role required a minimum of 38 hours per week, as well as up to 10 hours of overtime each week, which was in excess of the plaintiff’s capacity;
· In terms of the Automotive Parts Interpreter, Mr Apostolopoulos deposed in his second affidavit that he was not qualified to do this work and, based on his industry experience, he would need to get a job where someone would train him;[113] and
· The figures submitted by the VWA for the alternative roles should not be accepted, as they included commission and overtime and were vague and unreliable.
[112] Plaintiff’s Exhibit P1, PCB 26.
[113] Plaintiff’s Exhibit P1, PCB 26.
Findings on suitable employment
170I find that Mr Apostolopoulos does not have the capacity to return to his pre-accident employment. I find that he has the capacity to work full-time in his current position, as he is currently doing. I find that he has not needed to take any time off work due to the claimed injury.
171I accept the opinions of Mr Asaid, Dr Brasier and Dr Haynes – all of whom considered that Mr Apostolopoulos had the capacity to work in suitable employment .
172I find that the plaintiff has the capacity to work as an Automotive Service Advisor or an Automotive Spare Parts interpreter. He has the capacity to earn in excess of what he is currently earning. I find he has the capacity to earn up to $100,000 per annum, which is the mid-range figure for wages for these jobs.
173I therefore find that the plaintiff has not satisfied the provisions of s325(2)(e)(i) and (ii) of the Act, as he has not sustained a loss of capacity of 40 per cent or more, and this loss is permanent.
Pain and suffering consequences
174I now turn to consider whether Mr Apostolopoulos has established that his pain and suffering consequences meet the statutory test.
175Mr Apostolopoulos’ evidence as to pain and suffering consequences has been summarised earlier in this judgment and will not be repeated here.
Range submissions – plaintiff
176Lead Counsel for Mr Apostolopoulos submitted the Court should find that Mr Apostolopoulos was:
· a witness of good credit who gave evidence in a straightforward and forthright manner;
· a stoic, hardworking and motivated man who had returned to work after the injury and continued to work beyond his capacity; and
· willing to make concessions against his own interests.
177Lead Counsel for Mr Apostolopoulos further urged the Court to accept that:
· There was no dispute that Mr Apostolopoulos suffered a significant crush injury;
· Whilst his condition had improved after the surgical procedures, it had not resolved entirely and he continued to experience pain, swelling, restriction, muscle wasting and giving way of the knee, particularly when working;
· He took Panadol and Nurofen on a daily basis, availed himself of Voltaren gel as needed and iced his knee every night;
· There was no evidence that his condition was likely to resolve in the foreseeable future, and in fact there was opinion to the effect his condition was likely to worsen over time;[114] and
· He experienced a range of restrictions upon his vocational pursuits, domestic duties, hobbies and relationships with his partner and children.
[114] T123, L17-25.
178Lead Counsel for Mr Apostolopoulos maintained the lack of active treatment was because Mr Apostolopoulos had been told his knee was “as good as it was going to get”.[115]
[115] T126, L19-21.
179Lead Counsel for Mr Apostolopoulos also submitted that Mr Apostolopoulos’ forced cessation of work in the construction industry was of relevance to his pain and suffering application in an Ellis Management services Pty Ltd v Taylor[116] sense, as it was a loss of amenity to him.[117]
[116] [2013] VSCA 326.
[117] T123, L1-13.
Range submissions – VWA
180The VWA submitted the following:
· Mr Apostolopoulos was not undergoing any active treatment, or availing himself of any prescription medication, and had not attended his General Practitioner or surgeon in relation to his knee for an extended period of time;
· His affidavits and evidence during cross-examination painted a picture of significant restriction and disability which was entirely contradicted by the surveillance footage;
· Mr Apostolopoulos was not forthcoming with medico-legal examiners about his work at the store;
· There were no affidavits from any other person, such as Mr Apostolopoulos’ partner, his former boss/cousin or current boss, to corroborate his alleged ongoing pain and restrictions;[118] and
· Given these issues, the Court should be cautious to accept any reporting of pathology by examiners, as their findings were premised on Mr Apostolopoulos’ reports of pain and restriction.
[118] T99.
181In summary, the VWA did not dispute Mr Apostolopoulos had suffered an injury to his right knee but maintained that he sought to exaggerate his restrictions and limitations.
Findings on pain and suffering consequences
182The surveillance did not reveal any obvious pain behaviours, such as grimacing, or grabbing at the knee. I have had the benefit of observing Mr Apostolopoulos give evidence, I find that he has done his best to get on with life after the injury and not let it consume him.
183In considering whether a plaintiff’s consequences meet the serious injury threshold, it is relevant to consider the plaintiff’s life expectancy and the likely period for which that plaintiff will continue to experience those consequences.[119]
[119]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [39] and Davidson v Transport Accident Commission [2015] VSCA 12, [50].
184As per Ashley JA and Beach AJA in Stijepic v One Force Group Aust Pty Ltd & Anor:[120]
“All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
[120] [2009] VSCA 181, [43].
185As such, Mr Apostolopoulos’ life expectancy is one of the factors I can consider in determining whether his consequences meet the serious injury threshold.
186Mr Apostolopoulos was forty-six years old at the time of the incident in 2021 and is now aged forty-nine.
187I accept that Mr Apostolopoulos will continue to experience painful symptoms in his right leg and curtailment upon enjoyment of his life for the foreseeable future, and that such consequences may persist for decades.
188A worker’s inability to engage in employment of a particular kind may also be relevant, even in pain and suffering only applications.[121]
[121]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [15], Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326, [35] and Peak Engineering v McKenzie [2014] VSCA 67, [38].
189As per Osborn and Beach JJA in Ellis Management Services Pty Ltd v Taylor:[122]
“As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”
[122] [2013] VSCA 326, [35].
190I accept the opinions of Dr Asaid and Dr Brasier that the knee injury permanently precludes Mr Apostolopoulos from unrestricted general labouring work.
191I also note that whilst Dr Saxby and Dr Haynes were not asked to provide an opinion on Mr Apostolopoulos’ capacity to return to pre-injury labouring work, their opinions are such that the various recommended restrictions in their reports would, as a matter of common sense, preclude Mr Apostolopoulos from returning to pre-injury duties.
192Mr Apostolopoulos has given evidence that despite his ability to return to work, he has lost the opportunity to continue in his chosen field of employment which was well paid.
193This loss of preferred employment is a factor I have considered in determining whether Mr Apostolopoulos’ consequences meet the relevant serious injury threshold.
194I accept Mr Apostolopoulos is not undergoing active treatment and does not take any prescription medication for the knee condition.
195The lack of ongoing treatment in this application does not point to a resolution of Mr Apostolopoulos’ condition, but rather reflects the fact that he is not a candidate for further surgery, and his knee condition has reached the maximum expected level of improvement. I accept the submission made by Lead Counsel for Mr Apostolopoulos on this point.
196The following factors have weighed in Mr Apostolopoulos' favour, despite my doubts about reliability regarding work capacity, together with his return to full-time alternative employment, his lack of treatment and lack of medication:
· his age;
· his ongoing pain, which he described as variable between moderate and strong, has interfered with his recreational activities such as fishing and bicycle riding;
· although he no longer takes prescribed medication, he has continued to use over-the-counter medication on a daily basis; and
· his loss of chosen career.
197I am mindful that I am required to consider the range of impairments and impairment consequences and not just those that come before the Courts. What has been lost must be considered in the context of what is retained.
198In the exercise of the value judgment required of me, I find that Mr Apostolopoulos has satisfied his onus of establishing that the impairment consequences of his knee injury, taken together, are appropriately described as “more than significant or marked” and “at least very considerable” to him when considering the range of possible impairments.
199In my view, the combination of the plaintiff’s level of pain, his ongoing restrictions, and the loss of his career as a well-paid general labourer are “very considerable” to him.
200I find that these consequences satisfy the statutory threshold of being “more than significant or marked” or “at least very considerable”.
Disposition
201The application for leave to issue proceedings for pecuniary loss damages is unsuccessful.
202The application for leave to issue proceedings for pain and suffering damages is successful and leave will be granted.
203I will hear the parties on the question of costs.
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