Asling v Veolia Environmental Services Australia Pty Ltd
[2012] VCC 1786
•26 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-05123
| GARRY ASLING | Plaintiff |
| v | |
| VEOLIA ENVIRONMENTAL SERVICES AUSTRALIA PTY LTD (formerly COLLEX PTY LTD) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4, 5 and 8 October 2012 | |
DATE OF JUDGMENT: | 26 October 2012 | |
CASE MAY BE CITED AS: | Asling v Veolia Environmental Services Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1786 | |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – knee injury – loss of earning capacity – pain and suffering damages
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Humphries & Anor v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
JUDGMENT – Leave granted for pain and suffering damages and loss of earning capacity damages
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton SC with Mr S Martin | Slater & Gordon Ltd Lawyers |
| For the Defendant | Mr I McDonald | Herbert Geer Lawyers |
HIS HONOUR:
1 The plaintiff in this action seeks leave to commence common law proceedings against the defendant, his former employer, then known as Collex Pty Ltd, pursuant to s134AB(16)(d) of the Accident Compensation Act 1985 (“the Act”) and is in respect of both pain and suffering and loss of earning capacity damages.
2 The application refers to an injury to the plaintiff’s left knee which he claimed he sustained on 22 December 2005 while working as a bricklayer for the defendant at Smorgon Steel at Laverton North (“the premises”). At the time of the injury, he was using a jackhammer to break up a reinforced concrete floor surface when the jackhammer became jammed, subsequently “freed itself”, and thereafter smashed into his left knee.
3 At the hearing, it was not in dispute that the plaintiff suffered a compensable injury in the course of his employment with the defendant on the date alleged. What was in contention was whether the plaintiff suffered a “serious injury” within the meaning of paragraph (a) of the definition of that term in s134AB(37) of the Act as a result of this compensable injury. Paragraph (a) provides that a “serious injury” means “permanent serious impairment or loss of a body function”.
4 In his opening, counsel for the defendant indicated that the main issue before the Court was whether the impairment subsisting at the time of hearing, when judged by comparison with other cases in the range of possible impairments or losses, can fairly be described as at least very considerable and more than significant or marked.[1] This is colloquially known as a “range case”. It was also contended that a main defence of the plaintiff’s case would be centred on credit. This issue was enlarged during the hearing of the matter where surveillance films tendered in evidence were said to be “at odds” with the plaintiff’s presentation in his affidavits and in the histories recited to various medicos.
[1] Humphries & Anor v Poljak [1992] 2 VR 129 at paragraph [140]
Medical History Prior to the Injury
5 The plaintiff was born in September 1962. In about 1976, he suffered an injury to his left knee when playing junior football and subsequently, underwent a left knee meniscectomy.
6 Thereafter, he returned to playing football without any ongoing problems. In about June 1984, he dislocated his left patella while at work when a pipe fell off a trolley, striking his left knee. He was subsequently off work for a period between eighteen months and two years. He underwent surgery, being a high left tibial osteotomy and thereafter, returned to work on a full-time basis in about 1986. He also returned to playing club cricket up until about 1996.
7 In the years leading up to the injury in December 2005, he found the knee would swell from time to time after a lot of activity but he was generally able to manage the condition. He also underwent treatment for a cyst in that knee in about February 2003. Any such symptoms allegedly did not stop him working long term in the physically demanding employment of bricklaying. He also stated that the symptoms did not interfere to any great extent with his activities of daily living or his enjoyment of life.
8 In connection with his June 1984 injury, he was examined by surgeon, Mr Robert Marshall, on 1 May 1987. At that time, the plaintiff was working as a bricklayer and in a position Mr Marshall described as:
“… requiring considerable strength and the use of his legs and that he is coping very well. He said himself that his knee is very much better.”
9 Mr Marshall considered that his present work capacity was normal and that for all normal purposes, his knee was perfectly good and he was fit for any reasonable employment. He considered there was no reasonable basis upon which he might require a knee replacement in the future.
10 The plaintiff was also examined by surgeon, Mr Michael Shannon, on 2 June 1987. At that time, x‑rays taken in 1984 demonstrated medial compartment osteoarthritis with narrowing of the joint spaces, lipping of the joint margins and varus deformity. Mr Shannon considered that the injury at work had caused significant aggravation of the osteoarthritic process and it was likely that this process would be progressive, and that in the distant future he may require the operation of total knee replacement. At that stage, there was a near full range of movement of the knee with only slight crepitus and the high tibial osteotomy had produced significant relief of his symptoms.
11 In a pre-employment medical assessment for the defendant dated 26 April 2005, the plaintiff relayed to the defendant that he suffered some pain in the left knee following his left tibia fracture when either crouching, bending or kneeling (Exhibit P). Despite this statement, he was employed by the defendant to perform work at the Smorgon factory for its Christmas shut-down procedure for 2005. Apparently he had been similarly employed in the shut-down period in 2004.
12 The plaintiff deposed in his first affidavit that the work was physically demanding. It involved operating in a confined space inside a refractory to replace either the floor or walls of the kiln with specialised bricks, laying them in a specialised manner so that they could cope with the high temperatures used in the kilns. When he injured himself, he was working in a very cramped environment such that there was a low roof in the kiln and he was hunched over. He considered that in the years leading up to the injury, he had not experienced any significant problems with his left knee, apart from the swelling from time to time after a lot of activity, as mentioned above.
Medical Treatment after the Injury
13 On the morning after the incident, the plaintiff tried to get out of bed but his left knee gave way and he fell to the floor. On that day, he reported to his general practitioner, Dr Oppenheimer, who prescribed some anti-inflammatory medication, but the plaintiff suffered ongoing significant pain and stiffness in the left knee. He was referred for x‑rays and also to orthopaedic surgeon, Mr Jonathon Hooper, who first saw him in January 2006. At about this time, he also lodged a WorkCover Claim for Compensation, which was accepted.
14 Mr Hooper took a history in January of 2006 that although the plaintiff had previous problems with his knee, there had been “little in the way of symptoms over the past 20 years.”[2]
[2]Exhibit G
15 Mr Hooper performed an arthroscopy on 30 March 2006 and the knee was found to be markedly degenerate. Thereafter, the plaintiff continued to have anterior knee pain. He was re-arthroscoped on 22 August 2006. Mr Hooper found that the plaintiff had “end stage arthritis in his knee, particularly involving the patellofemoral joint”. Thereafter, the plaintiff was keen to continue working as a bricklayer but Mr Hooper did not believe he would be able to continue this for too long and he thought the plaintiff would require a total knee replacement if his symptoms persisted.
16 When reviewed by Mr Hooper on 11 September 2006, he noted that the knee was continuing to both the plaintiff and he thought that he was well and truly on the path towards a total knee replacement. At that stage, Mr Hooper thought he was going to have great difficulty getting back to work as a bricklayer. He would eventually require a total knee replacement and then he would have to be retrained to some form of lighter work.
17 On 12 November 2006, Mr Hooper recorded that the two arthroscopies had not helped him greatly. He continued to complain of medial side knee pain and the alignment of his knee was in 5 degrees varus. He recommended a second high tibial osteotomy to bring him into valgus and get the weight bearing into the lateral side of his joint. He considered that it was inevitable he would require a total knee joint replacement but that the osteotomy may delay the necessity for this procedure for several years. The procedure was performed on 19 December 2006. On 17 July 2007, Mr Hooper recorded that the high tibial osteotomy performed by him had now united, “but it has not helped him at all”. He required a total knee joint replacement that was attributable to the original (22 December 2005) injury. He further recorded, “whatever happens he will not get back to his previous work as a bricklayer”.
18 On 3 October 2007, Mr Hooper performed the knee replacement and the internal fixation from the high tibial osteotomy was removed. On 25 October 2007, Mr Hooper noted that the plaintiff had made a very good recovery from the surgery. At that stage, he was rehabilitating and the plaintiff was pleased with what had been done for him and there had been a relief of the pain he had been getting in his knee. Mr Hooper further recorded:
“The downside is, of course, that he is a young man to have a knee replacement performed and it will not allow him to get back to heavy activities when he has to kneel, squat, climb ladders or work on scaffolding and hence he will have to be retrained in some form of alternative work as I cannot see him getting back to the work as a bricklayer.”
19 He further considered that once the post-operative condition stabilised, he would none the less be unable to return to heavy work of a bricklayer or work that involved squatting, bending or climbing. Mr Hooper noted that he was an enthusiastic and intelligent man and that he would be hopeful that he would not have trouble getting light work.
20 On 14 February 2008, Mr Hooper noted that the replacement surgery had not been straightforward because of all the previous surgery he had had on the knee. However, he had made a good recovery, was well motivated and when last seen had flexion approaching 90 degrees in his knee. Despite the good result, Mr Hooper considered that because of the multiple surgeries he had, the end result of the knee joint replacement will perhaps not be as quite as functional as in a virginal arthritic knee. He noted the plaintiff understood he would not be able to get back to heavy work or work as a bricklayer and would have difficulty kneeling, squatting, climbing ladders or stairs or working on scaffolding. Only time would tell how long the knee replacement would last, but they were now lasting in the vicinity of twenty to twenty-five years. Mr Hooper considered, at that stage, somewhat prophetically:
“He is a well motivated man and I have no doubt that he will be able to get himself employed at a suitable level of function in the future.”
21 When last seen in October 2008, Mr Hooper was of the opinion that the injury in December 2005 had aggravated the degenerative disease in his knee and precipitated the need for further surgery and accelerated the degenerative changes that necessitated his knee replacement. At that time, he recorded:
‘It is possible, although not necessarily probable, that his knee replacement will not see him through and if it does cause trouble due to wear or loosening revision surgery may be required, but one cannot speculate about this recurrence either in terms of time or severity.”
22 Further, as a sequelae of having a knee replacement, it was his opinion that the plaintiff should restrict his work, social and sporting activities to those that are not regarded as repetitive/impact activities or putting his knee in extreme positions. He also noted that he was developing arthritic knee symptoms on the right knee which were compounding his problems. In reading his report of 18 January 2012, I do not believe Mr Hooper was making a causal connection between the left knee and the right knee problems.
23 The plaintiff was seen by orthopaedic surgeon, Mr Russell Millar, for medico-legal purposes, on 24 September 2008 and 14 June 2011.[3] In his first report, he recorded the plaintiff had undergone a left total knee replacement for arthritic disease and had enjoyed a good early result. The medium term prognosis was good but unfortunately the long-term prognosis was poor. He considered the plaintiff was at high risk of developing loosening in his lifetime and he believed on the balance of probabilities he will do so to the point where he would require revision surgery which would be particularly complex given his multiple prior surgeries. It was clear to him that the plaintiff had pre-existing disease in the left knee which was rendered symptomatic by the effects of the injury in December 2005. That injury had accelerated a requirement for major treatment in the form of a knee, replacement probably by many years.
[3]Exhibit K
24 On review on 14 June 2011, Mr Miller considered that the current conservative regime was appropriate and would need to continue indefinitely. He thought that the left knee would continue to slowly deteriorate and there was a likelihood that he would come to revision surgery and he remained of the view that the long term prognosis for the left knee was poor. At that time, he considered the plaintiff could not perform work that involved prolonged standing, prolonged walking, kneeling, squatting, twisting or turning or knee agility. It would not be safe for him to climb. He thought it unlikely he could increase his working hours beyond the current 20 hours per week, which was sedentary work with a slightly physical component to it.
25 Mr Brian Davie, consultant orthopaedic surgeon, saw the plaintiff on behalf of the defendant on 26 February 2007, 24 July 2007, 25 August 2011 and 29 September 2011.[4] In his first report, Mr Davie considered the relevant injury on 22 December 2005 aggravated the pre-existing arthritis in the left knee and employment had materially contributed to his present problems. In the second report, he considered the subject injury had been a significant one and had aggravated and accelerated the arthritic change in the left knee and would be the responsibility of the insurers for Veolia Environmental Services. He required a knee joint replacement and permission should be given for same.
[4]Exhibit O
26 On 25 August 2011, he reviewed the plaintiff who described his knee as having improved since the replacement surgery. However, for the past twelve months or so he had noticed that the knee became somewhat tired on walking, causing him to be able to walk for only short distances, prior to be stopped by soreness and a tendency to stumble. Once again, he considered the subject injury was significant and worsened the arthritic process, leading to symptoms and eventually a tibial osteotomy and knee joint replacement. At that stage, he did not consider the plaintiff would be able to carry out his pre-injury employment duties as a bricklayer, which involved squatting, twisting and carrying activities. He had shown a capacity to perform lighter employment duties and he believed he should continue with that job of 15 to 20 hours for as long as he could. He considered that his present work of 15 to 20 hours per week as estimator for bricklaying companies was an ideal occupation for him to continue with. He found the plaintiff to be a non-complaining man who has a significant problem with his knee and should be given every assistance.
27 In a supplementary report dated 29 September 2011, Mr Davie considered that the maximum weekly working hours the plaintiff could perform as an estimator would be 40 hours per week. Significantly, this did not include duties as a bricklayer per se.
The Injury
28 There can be no doubt that the injury suffered on 22 December 2005 was a significant contributing factor to the aggravation and acceleration of the pre-existing arthritic process in the knee joint, such that it was common ground that the knee replacement surgery carried out in October 2007 (and the three intervening operative procedures) were causally related to the injury.
29 Further, when comparing the impairments both before and after the injury, there is no doubt that there is now a considerable worsening of the impairment as evidenced by the above medical opinions.
30 The contest between the parties is whether the totality of the evidence is such that the plaintiff has proved that the pain and suffering consequences or the loss of earning capacity consequences is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, is fairly described as being more than significant or marked and as being at least very considerable.[5]
[5]Section 134AB(38)(c) of the Act
31 When assessing loss of earning capacity consequences, the Act requires the plaintiff to also prove that he had a loss of earning capacity of 40 per centum or more when comparing the worker’s gross income from personal exertion (expressed at an annual rate) which he is capable of earning in suitable employment at the date of the hearing and the gross income (expressed at an annual rate) that he was earning or was capable of earning from personal exertion during that part of the period within three years before and three years after the injury, as most fairly reflects his earning capacity, had the injury not occurred.[6]
[6]Section 134AB(e) and (f) of the Act
32 It was common ground between the parties that the plaintiff had a retained capacity for work which included bricklaying duties. In essence, the dispute in this regard was the defendant’s contention that the plaintiff was capable of earning greater than 60 per centum of his pre-injury earnings in suitable employment, or alternatively, he had failed to discharge the onus of proof in regard thereto. Despite the relatively strong medical evidence in favour of the plaintiff, the defendant tendered in evidence many hours of film of the plaintiff taking on 13 September, 14 September, 17 September, 18 September and 19 September 2012.
33 Before returning to the surveillance in more detail, it is worth noting that the defendant submits that the evidence disclosed by the surveillance, together with documentary evidence of his earnings in 2010,[7] is in stark contrast to the contents of his two affidavits.
[7]Exhibit 8
34 In his first affidavit, the plaintiff deposed:
“By October 2008, despite ongoing pain and associated problems with the left knee, I was able to obtain some part-time employment with a friend who works as a Bricklayer. He gave me some light administrative work, about ten to fifteen hours per week. My duties involved answering the phone and giving quotations, and the like. Although it thought it was akin to “charity”, I was grateful for my friend’s help as I needed the money. That work lasted until early 2009. Since then I have managed to obtain similar light work with other miscellaneous companies in the construction industry on an intermittent basis. However, I remain quite limited in the duties I can perform. In particular, given the ongoing problems with my left knee, I am unable to negotiate building sites and other places where the ground is quite uneven. I am also unable to cope with the heavier aspects of brickwork. As a result I remain limited to some of the more administrative-type jobs involved in building work, such as giving quotes, answering the phone and doing some paperwork. As a result of this work my taxable income in 2009 was $14,079 while in 2010 my taxable income was only $13,775.”[8]
[8]Paragraph 30
35 The plaintiff further deposed:
“I continue to suffer constant pain and stiffness in and around my left knee. The pain varies in intensity and I have ‘good days’ and ‘bad days’ with it, however, it is always there to some degree.”[9]
[9]Paragraph 32
36 Further, he states:
“The pain in and around my left knee is most often aggravated by prolonged periods of standing or walking. I also find that I have a reduced sitting capacity when I have to keep my knee bent for any significant period of time. Various of movements, such as kneeling or squatting movements, also increase the pain I suffer. In addition, I still have trouble negotiating steps, inclines and uneven ground. My knee also continues to feel somewhat unstable and unreliable.”[10]
[10]Paragraph 33
37 At the time of swearing his first affidavit (9 June 2011), the plaintiff deposed that he was relying upon various analgesic medications including Tramal. He was also taking anti-inflammatory medications when necessary and sometimes used alcohol to help dull the pain.[11] In conclusion, he deposed that he was unable to work in his chosen profession as a bricklayer and that these days he was confined to working in sedentary employment doing light duties on a part time basis for friends or contacts that he had in the industry. He considered that when his friends or contacts ran out of work for him, he would be unable to obtain any employment on the open market.
[11]Paragraph 38
38 As disclosed in his taxation return for 30 June 2011, the plaintiff’s earnings had doubled from the previous year to a total of $26,436. In that financial year, the defendant tendered pay slips from Addcorp Industries Pty Ltd for the weeks ending 23 November 2010, 30 November 2010, 7 December 2010 and 14 December 2010,[12] which disclosed that during that period the plaintiff worked between 30 and 38 hours per week and earned $1,335, $1,805, $1,611 and $1,803 respectively. Further, the year to date figure at 31 December 2010 was shown to be $11,679.46 gross. The plaintiff gave evidence in cross-examination that this particular employment ceased because there was no further work for him to perform. He said it was basically supervisory work with little physical input.
[12]Exhibit 8
39 The plaintiff swore his second affidavit on 26 September 2012. His Australian Taxation Office Notice of Assessment for the year ending 30 June 2012 showed a reduction in earnings to $15,761.[13] In this affidavit, he deposed:
“Financially I have been struggling ever since my injury and so out of necessity I have returned to the only work I know – working in the bricklaying industry. That said, I have only managed to work part time hours, and most of the time I have been restricted to lighter, menial duties. I know that working on construction sites is not good for my knee and I pay the price in terms of increased pain at the end of any day’s work. However, I have very few other skills and little other experience.”[14]
[13]Exhibit S
[14]Paragraph 3
40 Further, he deposed:
“Over the past 12 months I have worked as a subcontractor for various bricklaying companies. However, as a result of my knee injury and the ongoing pain that I suffer, both my hours and duties have been heavily restricted. The work I have managed to find has generally been confined to businesses owned by family and friends. Because my knee prevents me from undertaking full time work or the normal array of bricklaying duties, I need a supportive employer who will allow me to take the necessary time off work when my knee is playing up.”[15]
[15]Paragraph 4
41 Further, he deposed:
“For the past few months I have been working as a subcontractor for my son Ryan’s business, RGA Bricklaying. Prior to that I was working for Neat As Bricklaying, a business run by a friend, on an intermittent basis. In both these roles I have been given the flexibility to work part time hours. I am thankful for the chance to do some work but appreciate that if my employers weren’t friends or family they would not keep me on as I simply can’t do what most of the other bricklayers can do.”[16]
[16]Paragraph 5
42 The plaintiff further deposed that he believed he had averaged approximately 20 hours per week over the past twelve months but continuing to take regular days off work. He stated that he sometimes started work with the intention of working a full day but was forced to leave early because of the knee injury.[17]
[17]Paragraph 6
43 Significantly, he deposed:
“By and large the work I have been doing is that of a supervisor and general hand rather than a bricklayer. My duties generally involve running errands, doing some quotes, performing deliveries, giving pointers to the younger workers or sweeping up on site. While from time to time I have attempted to lay some bricks, this is a task that I now really struggle with and try to keep to a minimum. I have trouble lifting, twisting, squatting and kneeling which means even if I do try and lay some bricks, I am much slower than I once was, and generally in a fair amount of discomfort.”[18]
[18]Paragraph 7
44 Further, he deposed:
“While I have occasionally had to climb a ladder or on to a scaffold, climbing is a task that I do find particularly challenging since my knee injury. As a result, I now avoid it as much as I can and try to keep most of work confined to ground level lighter duties.[19]
[19]Paragraph 8
45 The plaintiff conceded he takes little in the way of medication to deal with his symptoms, as he found that painkillers tended to make him drowsy and “feel like a zombie”. He stated that when the knee is particularly painful he will usually have a few drinks to try and take the edge of the pain.[20]
[20]Paragraph 10
46 Further, since the knee replacement surgery, he deposes that his knee continues to be troublesome and he is concerned that if his symptoms continue to deteriorate he will need a repeat joint replacement operation in the future.[21] This is consistent with the evidence given by the various medicos and is also consistent, I believe, with his desire not to go back for review at the present time as he is fearful that a recommendation will be made for an imminent operation.
[21]Paragraph 11
47 The plaintiff’s invoices for the current financial year were called for by the defendant and tendered by it in evidence.[22] By Invoice number 60 and dated 30 September 2012, the plaintiff had invoiced his son, Ryan’s company, as follows:
Week Ending: 7/9/2012 8 hours at $25 per hour $200
14/9/2012 12 hours at $25 per hour $300
21/9/2012 20 hours at $25 per hour $500
28/9/2012 20 hours at $25 per hour $500
[22]Exhibit 8
48 This invoice is consistent with the hours showing the plaintiff working on a site at 33 Derby Street, Moonee Ponds in the weeks ending 14 September and 21 September 2012 respectively. The plaintiff gave evidence that the $25 per hour rate was a lower rate than that able to be achieved on union sites on the open market which was not available to him because of the injury. He agreed that he had worked in 2010 at rate in excess of $30 per hour for Addcorp Industries Pty Ltd, but that that work was no longer available and he had to avail himself of either family or friends. Even if he were able to achieve an hourly rate in excess of $30 per hour, a 20-hour period would result in a figure approximating $600 per week.
49 Before turning to the films specifically, the plaintiff further gave evidence that the film depicted him working with his younger son, Josh, and a young mate of his, James. He further explained that because the older son, Ryan, was working on another site, the plaintiff had agreed to perform bricklaying duties in the periods shown while assisting the young son. He stated it was not typical of the work that he had been doing in the past twelve months.
The Surveillance Film
50 The first film was taken on 13 September 2012 and ran from approximately 11.09 am until 2.22 pm.[23] The commentary from the film operator was also admitted into evidence by consent. The operator recorded:
“The subject was observed intermittently over a three hour period walking around the site in a normal manner, measuring objects, smoking, bending on many occasions to pick up bricks, laying bricks, winding up electrical cords and talking with males on site.”
[23]Exhibit 2
51 I agree that this is an accurate description of the film as shown. It should be noted, however, the film does not show the plaintiff flexing his knees or squatting or crouching.
52 The next film sequence was taken on 14 September 2012, commencing at approximately 6.31 am and finishes at about 2.10 pm. The plaintiff conceded that he probably worked until about 2.45 pm. The operator records:
“The subject was observed throughout the morning intermittently working on the site as a bricklayer. … [he] was seen to spend the afternoon working as a bricklayer on the site.”
53 I agree with these observations. The film also shows the plaintiff effectively standing for the whole day with no sitting down. He is shown to be working from approximately 7.24 am until smoko at 9.47 am. The film shows the plaintiff constantly working bricklaying using a trowel and bending to lift bricks one at a time. The lifting appears to be from the waist and not from his knees. In cross-examination, he did not agree that he was working constantly in this period. He agreed he chose not to sit down during the smoko because he said it was hard to get up from a sitting position. After smoko, it was suggested to him, that the film showed him bricklaying for a 40 minute period with solid work. He did not accept this proposition and claimed that his rate was very slow. He stated that the job was taking a lot longer than it needed to and it should have been finished in a much shorter time. He conceded that he was in charge of the site on that occasion, because his son, Ryan, was not working. He also conceded he worked pretty solidly between 12.00 and 2.45 pm without a substantial break.
54 I note that the film shows him for a number of hours repeatedly bending and twisting in order to place one brick at a time on a fence which was of about waist to chest height. The film does not show, however, him flexing his knees or squatting or crouching.
55 The next section of film was taken on 17 September 2012 at the same site. The plaintiff is shown to be working at a height of about 10 feet commencing at 8.12 am. The film also shows him bending repeatedly and lifting bricks to waist height. At 8.43 am, it appears that he and his son are working at opposite ends of the wall and meeting in the middle and working at approximately the same rate. At 8.50 am, he is shown to be descending a ladder but in a careful manner. At 8.52 am, it is apparent he is giving instructions to the other two men on site. At 9.29 am, he carries a ladder to a plank. At 9.31 am, he bends down to a bucket and slightly flexes both knees. At 9.40 am he again negotiates a ladder, alternatively putting his weight on right and left knees as he alights.
56 In cross-examination, he stated that his son, Joshua, and the mate, James, had put up the scaffolding and the plaintiff himself stated:
“I try to avoid it at all costs.”
57 He also conceded in cross-examination he had an ability to carry out bricklaying duties working from scaffolding for most of the time. Specifically he stated that his son, Josh, normally worked quicker than he did, although he considered the film did show that they were pretty much working at the same rate.
58 At 10.24 am, he is shown to descend the ladder gingerly. He disagreed with the proposition that the film showed him performing a solid day’s work. When asked why not once did he sit down, except during the lunch break, he stated that he did not sit down because it was hard to get up and to get started.
59 It was accepted by the plaintiff that the film taken on 18 September 2012 and the observations made on 19 September 2012 were essentially correct and showed similar duties being performed. He further conceded he may have worked for a few hours on Thursday, 20 September, but not at all on Friday, 21 September.
60 The plaintiff was also cross-examined on the history he gave to Katrine Green Consulting Pty Ltd set out in a vocational assessment report dated 7 April 2012.[24] He agreed that the film showed that he was able to stand for more than 30 minutes as set out in the report and that it did not show him tending to trip over or showing any difficulty walking on ramps and inclines, as claimed in the report. He also told Ms Green that if he is sitting he can twist, but if he is standing it is difficult to twist; whereas in the film, he was standing and twisting on a repetitive basis.
[24]Exhibit L
Loss of Earning Capacity
61 The plaintiff tendered in evidence by consent details of gross income from personal exertion for the financial years 30 June 2005 to 30 June 2011[25] and the Australian Taxation Office Notice of Assessment for the year ending 30 June 2012.[26] Part of Exhibit W was the actual taxation return for 30 June 2006, which was relevant to the plaintiff’s pre-injury gross income pursuant to s134AB(f)(ii) of the Act.
[25]Exhibit W
[26]Exhibit S
62 The gross figure for the year is $67,427. It is common ground that this includes the amount of WorkCover payments received after the occurrence of the injury on 22 December 2012, which would be less than 100 per cent of the earnings as assessed by the Victorian WorkCover Authority. Within the return, there is a three week period where the plaintiff earned $1,460 per week gross between 1 September 2005 and 22 September 2005. There was also a period of just over ten weeks working for Pinefields when he earned $2,452.52 gross per week.
63 At the time of the occurrence of the injury, the plaintiff was working in a relatively highly paid short term position with Smorgons at an earning rate that was generally higher than the yearly average. Doing the best I can, I would assess his earning capacity from personal exertion in the relevant period set out in s134AB(f)(ii) as $67,427 expressed at an annual rate. Clearly, this figure is lower than the average figure he was earning with Dampier and Pinefields in that financial year but there were obviously periods when he was not working (e.g. 1 July 2005 to 31 August 2005) such that a lower weekly rate expressed as an annual rate would seem appropriate.
64 In terms of calculating the plaintiff’s gross income from personal exertion, as at today’s date, which is capable of earning in suitable employment, I first have regard to the documentary evidence as set out in the invoices attached to Exhibit 8. Clearly, they are prima facie of a loss of earning capacity of 40 per cent or more, as they demonstrate a capacity to earning income in the vicinity of $26,000. I accept counsel for the plaintiff’s submission that the film depicting the hours worked by the plaintiff is consistent with this documentary evidence. I further accept that the plaintiff could work faster and more often if his left knee was in its pre-injury state. Counsel for the plaintiff urged that his client should not be penalised for “having a crack”. Clearly, this is correct.
65 On the other hand, if he has exaggerated his disability to the medical practitioners or is otherwise earning or capable of earning more money than disclosed in the documents, then it could be said he has not discharged his onus of proof.
Findings
66 I accept counsel for the defendant’s submission that the film taken in the period 13 September 2012 until 18 September 2012 does not readily align with the second affidavit of 26 September 2012. On the other hand, I accept the submission by counsel for the plaintiff that at all material times examining doctors have found the plaintiff to be non-complaining, straight forward, and basically “stoical”.[27] He has had injuries in the past and has apparently shown the character to overcome difficulties occurring as a result thereof.[28]
[27]See Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
[28]See generally Mr Robert Marshall - Exhibit F; Mr Paul Steadman - Exhibit M; Mr Michael Shannon - Exhibit N
67 Accordingly, I find that the plaintiff’s capacity for suitable employment at the present date is approximately 20 hours per week at rate of $25 per hour up to approximately $33 per hour, which on an annual rate produces figures between $26,000 and $34,200.
68 Accordingly, I find that the plaintiff has suffered a loss of earning capacity of 40 per centum or more on account of the injury pursuant to s134AB(38)(e)(i) of the Act.
69 There will be leave to proceed at common law in respect of pecuniary loss with respect to the injury.
70 Further, in accordance with the principles set out in Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[29] there will also be leave granted to proceed at common law for non-pecuniary loss.
[29][2009] VSCA 170
71 I will hear the parties with respect to subsequent orders and costs.
- - -
0