Babakarkhil v Victorian WorkCover Authority
[2021] VCC 1170
•23 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05060
| NOORMUHAMMED BABAKARKHIL | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne (via Zoom) | |
DATE OF HEARING: | 18 August 2021 | |
DATE OF JUDGMENT: | 23 August 2021 | |
CASE MAY BE CITED AS: | Babakarkhil v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1170 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – Worker under 26 years of age – Medical Panel opinion – Pecuniary loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:State of New South Wales v Moss [2000] NSWCA 133; Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545
Judgment: Leave granted to the plaintiff to bring a proceeding for pain and suffering and loss of earnings damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr C O’Sullivan | Zaparas Lawyers |
| For the Defendant | Mr B McKenzie | Minter Ellison |
HIS HONOUR:
Introduction
1This is an application for leave to bring common law proceedings pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2The plaintiff, Mr Noormuhammed Babakarkil, seeks leave to commence a common law proceeding in respect to psychiatric injury suffered by him in the course of his employment with Australia Auto Export Co Pty Ltd (“the employer”). He seeks leave to commence a proceeding for both pain and suffering and loss of earnings (pecuniary loss) damages.
3Prior to this matter proceeding to hearing, upon referral from a Judge of this Court, a Medical Panel was asked to answer medical questions regarding the plaintiff.
4Pursuant to a Certificate of Opinion dated 20 November 2020,[1] a Medical Panel answered such questions.
[1]Plaintiff’s Amended Court Book (“PCB”) 43
5As part of the administrative process for the referral to the Medical Panel, the parties filed a joint statement of agreed facts.[2] It is convenient to set out the relevant history in the agreed facts, as follows:
[2]Defendant’s Court Book (“DCB”) 7
“Agreed Facts
1. The Plaintiff was born on … 1992 and is currently 27 years of age.
2. He resides at … in the State of Victoria and is right handed.
3. The Plaintiff was born in Afghanistan and completed the equivalent of Year 10 in Afghanistan and subsequently worked as a sales assistant in a family grocery/convenience store in Afghanistan from approximately 2011 to 2012 and then as a shop keeper in Pakistan from approximately 2012 to 2013. From 2013 to 2014 the Plaintiff was an asylum seeker/refugee in Australia.
4. He commenced work with the employer in this proceeding (Australia Auto Export Co Pty Ltd) formally on 5 October 2015. The Plaintiff was employed as a labourer with the employer (a large-scale motor vehicle wrecker) and his duties involved stripping down cars.
5. The Plaintiff suffered injury on 19 December 2015 when burnt by an exploding gas bottle. He lodged a claim for compensation dated 30 December 2015 for those injuries.
6. The claim was accepted and weekly payments of compensation and medical and like expenses were paid by Xchanging on behalf of the employer pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
7. By Notice dated 28 February 2018, Xchanging terminated the Plaintiff’s entitlement to weekly payments of compensation under the Act as from 16 June 2018 on the following grounds:
‘● weekly payments have been paid or payable to you for a total of 130 weeks (whether consecutive or not), and –
•you have a current work capacity;
•alternatively, you have no current work capacity but it is not likely to continue indefinitely.’
8. The Plaintiff lodged a Claim for Impairment Benefits dated 26 March 2018. By Notice dated 31 July 2018, Xchanging advised the Plaintiff as follows:
‘Liability is accepted for the following injuries:
• Burn and scarring to arms, neck, face, ears, thighs and low back.
• Psychological condition.
Liability is rejected for the following injuries:
• Bilateral elbow contractor (restriction of movements).
• Right ankle.’
9. He disputed the assessment of impairment under the Act and this led to him being assessed by a previous Medical Panel (Medical Panel Reference No. M119/0416) which provided a Certificate of Opinion and Reasons for Opinion dated 28 April 2019.
10. The Plaintiff has not returned to work since the incident on 19 December 2015.
11. He has received treatment as outlined in the medical reports accompanying this referral to the Medical Panel.
12. The Plaintiff has undergone some retraining in computers, English, safe food handling and retail as outlined in the documents accompanying this referral to the Medical Panel.
13. The Plaintiff’s driver’s license is currently suspended on medical grounds.”
6In the proceeding before the Court, the plaintiff was represented by Mr Mighell QC and Mr O’Sullivan of counsel. Mr McKenzie of counsel appeared on behalf of the defendant. The matter proceeded in the “usual way”, namely the plaintiff tendered three affidavits relied on by him, and he was cross-examined as to the contents of his affidavits. In addition, the parties tendered medical reports and other relevant documents. I have taken into account the tendered evidence, together with the transcript of the plaintiff’s oral evidence, but I shall only refer to it to the extent necessary.
7At the commencement of the application, the defendant conceded that the plaintiff had suffered a “serious injury” in respect to the pain and suffering consequences of the psychiatric condition suffered in the course of employment with the employer. Accordingly, the only issue in dispute is whether the plaintiff is entitled to leave to commence a proceeding for loss of earnings damages.
8Finally, by way of preliminary comments, it should be noted that the plaintiff was under 26 years of age at the time that he was injured. As he was a worker under 26 years, the plaintiff must satisfy the statutory formula set out in s325(2) of the Act, and in particular s325(2)(e)(ii), which provides as follows:
“(ii)the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more”.
The Medical Panel opinion
9As mentioned, prior to the matter proceeding, medical questions were referred to a Medical Panel (“the Panel”) and answered by a Certificate of Opinion (“the Panel’s Opinion”) dated 20 November 2020. The Panel were asked questions regarding the nature of any medical condition affecting the plaintiff’s neck, right arm, left arm, skin and mind. The Panel were also asked questions about work capacity. It is convenient to reproduce the Panel’s Opinion in its entirety, as follows:
“MEDICAL PANEL
CONSTITUTED PURSUANT TO THE WORKPLACE INJURY REHABILITATION AND COMPENSATION ACT 2013
CERTIFICATE OF OPINION
Re: Mr Noormuhammad BABAKARKHIL
Medical Panel Reference Number: M120/1409
The Medical Panel formed its Opinion in response to a Referral from Judge Wischusen lodged on 4 June 2020 pursuant to Victorian Workers Compensation Legislation.
The Panel comprised the following members:
Dr Judith Hammond, General Practitioner
Mr Russell Corlett, Plastic Surgeon
Mr John Harris, Orthopaedic Surgeon
Dr Steven Adlard, PsychiatristDr Diane Neill, Psychiatrist
I, Dr Judith Hammond as Presiding Member of this Panel, have discussed the answers herein with the other Panel Members and this is the opinion of the Panel on the medical questions set out below.
Question 1What is the nature of the medical condition of the Plaintiff’s:
(a)neck;
(b)right arm;
(c)left arm;
(d)skin; and
(e)mind?
Answer:In the Panel’s opinion there is:
(a)mild restriction of rotation to the left side from right sided submandibular scarring of the skin of the neck;
(b)no intrinsic condition of the right arm;
(c)no intrinsic condition of the left arm
(d)scarring from surgically treated and spontaneously healed burns to the face, neck, right arm and left arm, right and left thighs and right inguinal region;
(e)Post Traumatic Stress Disorder.
Question 2
(a)Does any medical condition of the neck identified by the Medical Panel in answer to Question 1(a) continue to result from or be materially contributed to by injury sustained on 19 December 2015?
(b)Does any medical condition of the right arm identified by the Medical Panel in answer to Question 1(b) continue to result from or be materially contributed to by injury sustained on 19 December 2015?
(c)Does any medical condition of the left arm identified by the Medical Panel in answer to Question 1(c) continue to result from or be materially contributed to by injury sustained on 19 December 2015?
Answer:In the Panel’s opinion:
(a)The mild restriction of rotation of the neck to the left side from right-sided submandibular scarring of the neck continues to result from and to be materially contributed to by injuries sustained on 19 December 2015;
(b)Not applicable
(c)Not applicable
Question 3Is any medical condition of the Plaintiff’s:
(a)neck;
(b)right arm;
(c)left arm;
(d)skin; or
(e)mind –
as identified by the Medical Panel “permanent” meaning likely to last for, during or through the foreseeable future?
Answer:The Panel is of the opinion that:
(a)The mild restriction of rotation of the neck to the left side from right-sided submandibular scarring of the neck is permanent.
(b)Not applicable;
(c)Not applicable;
(d)The scarring from surgically treated and spontaneously healed burns to the face, neck, right arm, left arm, right and left thighs and right inguinal region are permanent.
(e)The Post Traumatic Stress Disorder is permanent.
Question 4Does the Plaintiff’s neck condition (excluding the psychological or psychiatric consequences of that condition) result in or materially contribute to him having:
(a)a “current work capacity” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”); or
(b)“no current work capacity” within the meaning of the Act?
Answer:(a) The mild restriction of rotation of the neck to the left side from right-sided submandibular scarring of the neck results in and materially contributes to Mr Babakarkhil having a “current work capacity” within the meaning of the Act
(b)No.
Question 5If “yes” to question 4(a):
(a)What employment would constitute suitable employment within the meaning of the Act?
(b)In relation to any suitable employment identified by the Medical Panel in answer to question 5(a), for how many hours and days per week does the Plaintiff have capacity to work?
(c)Would employment as a:
(i)Hospital Orderly;
(ii)Patient Transport Officer;
(iii)Courier;
(iv)Retail Sales Assistant;
(v)Sterilisation technician;
(vi)Electronic Assembler –
constitute suitable employment with (sic) the meaning of the Act and, if so, for how many hours and days per week?
Answer:(a) The Panel is of the opinion that Mr Babakarkhil could do work:
(i)that does not involve prolonged sun exposure;
(ii)that does not require Mr Babakarkhil to hold a current driver’s licence;
(iii)for which Mr Babakarkhil has suitable transferrable skills or
(iv)for which Mr Babakarkhil is provided with appropriate additional training.
(b)The Panel is of the opinion that Mr Babakarkhil could commence suitable employment working four hour shifts, three days per week, with a graduated increase to full time hours over one to two months.
(c)The Panel considers work as:
(i)a hospital orderly;
(iv)a retail sales assistant;
(v)a sterilisation technician;
(vi)an electronic assembler,
would constitute suitable employment options within the meaning of the Act.
The Panel considers Mr Babakarkhil could commence the suitable employment options identified, working four hour shifts, three days a week, graduating to full time work over one to two months
Question 6If “yes” to question 4(b), is this “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer:Not applicable
Question 7Does the Plaintiff’s skin condition (excluding the psychological or psychiatric consequences of that condition) result in or materially contribute to him having:
(a)a “current work capacity” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”); or
(b)“no current work capacity” within the meaning of the Act?
Answer:The Panel is of the opinion that:
(a)Mr Babakarkhil’s skin condition (excluding the psychological or psychiatric consequences of that condition) results in and materially contributes to him having a “current work capacity” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013.
(b)No
Question 8If “yes” to question 7(a):
(a)What employment would constitute suitable employment within the meaning of the Act?
(b)In relation to any suitable employment identified by the Medical Panel in answer to Question 8(a), for how many hours and days per week does the Plaintiff have capacity to work:
(c)Would employment as a:
(i)Hospital Orderly;
(ii)Patient Transport Officer;
(iii)Courier;
(iv)Retail Sales Assistant;
(v)Sterilisation technician;
(vi)Electronic Assembler –
constitute suitable employment with (sic) the meaning of the Act and, if so, for how many hours and days per week?
Answer:(a) The Panel is of the opinion that Mr Babakarkhil could do work:
(i)that does not involve prolonged sun exposure;
(ii)that does not require Mr Babakarkhil to hold a current driver’s licence;
(iii)for which Mr Babakarkhil has suitable transferrable skills or (iv) for which Mr Babakarkhil is provided appropriate additional training.
(b)The Panel is of the opinion that Mr Babakarkhil could commence suitable employment by working four hour shifts, three days per week, with a graduated increase to full time hours over one to two months.
(c)The Panel considers suitable employment options for Mr Babakarkhil include:
(i)hospital orderly;
(iv)retail sales assistant;
(v)sterilisation technician;
(vi)electronic assembler,
would constitute suitable employment options within the meaning of the Act.
The Panel considers Mr Babakarkhil could commence the suitable employment options identified, working four hour shifts, three days a week, graduating to full time work over one to two months
Question 9 If “yes” to question 7(b), is this “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer:Not applicable.
Question 10 Does the Plaintiff’s right arm condition (excluding the psychological or psychiatric consequences of that condition) result in or materially contribute to him having:
(a)a “current work capacity” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”); or
(b)“no current work capacity” within the meaning of the Act?
Answer:(a) Not applicable
(b)Not applicable
Question 11If “yes” to question 10(a):
(a)What employment would constitute suitable employment within the meaning of the Act?
(b)In relation to any suitable employment identified by the Medical Panel in answer to Question 11(a), for how many hours and days per week does the Plaintiff have capacity to work?
(c)Would employment as a:
(i) Hospital Orderly;
(ii)Patient Transport Officer;
(iii)Courier;
(iv)Retail Sales Assistant;
(v)Sterilisation technician;
(vi)Electronic Assembler –
constitute suitable employment with (sic) the meaning of the Act and, if so, for how many hours and days per week?
Answer:(a) Not applicable
(b)Not applicable
(c)Not applicable
Question 12If “yes” to question 10(b), is this “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer:Not applicable.
Question 13Does the Plaintiff’s left arm condition (excluding the psychological or psychiatric consequences of that condition) result in or materially contribute to him having:
(a)a “current work capacity” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”); or
(b)“no current work capacity” within the meaning of the Act?
Answer:(a) Not applicable
(b)Not applicable
Question 14 If “yes” to question 13(a):
(a)What employment would constitute suitable employment within the meaning of the Act?
(b)In relation to any suitable employment identified by the Medical Panel in answer to Question 14(a), for how many hours and days per week does the Plaintiff have capacity to work:
(c)Would employment as a:
(i)Hospital Orderly;
(ii)Patient Transport Officer;
(iii)Courier;
(iv)Retail Sales Assistant;
(v)Sterilisation technician;
(vi)Electronic Assembler –
constitute suitable employment with (sic) the meaning of the Act and, if so, for how many hours and days per week?
Answer:(a) Not applicable
(b)Not applicable
(c)Not applicable
Question 15If “yes” to question 13(b), is this “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer:Not applicable
Question 16Does the Plaintiff ‘s psychiatric condition result in or materially contribute to him having:
(a)a “current work capacity” within the meaning of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”); or
(b)“no current work capacity” within the meaning of the Act?
Answer:(a) Yes
(b)No
Question 17 If “yes” to question 16(a):
(a)What employment would constitute suitable employment within the meaning of the Act?
(b)In relation to any suitable employment identified by the Medical Panel in answer to Question 17(a), for how many hours and days per week does the Plaintiff have capacity to work:
(c)Would employment as a:
(i)Hospital Orderly;
(ii)Patient Transport Officer;
(iii)Courier;
(iv)Retail Sales Assistant;
(v)Sterilisation technician;
(vi)Electronic Assembler –
constitute suitable employment with (sic) the meaning of the Act and, if so, for how many hours and days per week?
Answer:(a) The Panel is of the opinion that Mr Babakarkhil could do work which would not significantly impact upon his psychiatric symptoms when considering his post-trauma and mood symptoms.
(b)The Panel is of the opinion that Mr Babakarkhil could commence suitable employment by working four hour shifts, three days per week, with a graduated increase to full time hours over one to two months.
(c)The Panel considers suitable employment options for Mr Babakarkhil including:
(iv)retail sales assistant;
(vi)electronic assembler,
would constitute suitable employment options within the meaning of the Act.
The Panel considers Mr Babakarkhil could commence the suitable employment options identified, working four hour shifts, three days a week, graduating to full time work over one to two months.
Question 18If “yes” to question 16(b), is this “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer:Not applicable
Date of Opinion: 20 November 2020”
10The proceeding before the Court was ultimately confined to the psychiatric injury. Relevant to that injury, the Panel’s answer to Question 17 deals with work capacity referable to the plaintiff’s psychiatric symptoms. The Panel opined that suitable employment options for the plaintiff included retail sales assistant and electronic assembler, commencing four-hour shifts, three days a week, before graduating to full-time work over one to two months.[3]
[3]PCB 51
11The defendant accepts that the plaintiff’s psychiatric condition precludes him from returning to his pre-injury employment with the employer. In my view, that is a “very considerable” consequence; namely, the inability to return to pre-injury employment.
12The defendant also accepts that the plaintiff’s residual capacity for work is as determined by the Medical Panel to now be either as a retail sales assistant or electronic assembler. It submitted that the Panel’s Opinion is binding on the Court and must be applied.[4]
[4] Transcript (“T”) 53, Line (“L”)10-16
13Section 313(4) of the Act provides:
“(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel—
(a)is to be adopted and applied by any court, body or person; and
(b)must be accepted as final and conclusive by any court, body or person—g
irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
14I accept the defendant’s submission that the section requires the opinion of the Panel on a medical question to be adopted and applied by the Court and that the Panel’s Opinion is binding on the Court. However, that is not the end of the matter. The application of the Panel’s Opinion to the relevant legal test is not, and cannot be, determined by a Medical Panel. Rather, the application of the Panel Opinion is a matter for the Court.
Analysis
15The starting point in the analysis is the fact that the plaintiff was under 26 years of age when he suffered what I consider to be extremely nasty burn injuries in a terrifying gas‑bottle explosion at the employer’s factory on 19 December 2015 (“the incident”).
16Next, it is relevant that before that incident he was a fit and healthy young man. He had survived extremely difficult times in fleeing his home country of Afghanistan, through Pakistan and then detention in Australia, before obtaining a visa and commencing work with the employer. At the time he was injured he was a young man with a wife and two children still in Afghanistan who to some extent relied on him for financial assistance. He gave evidence that he came to Australia for a better life. He summed that up in his first affidavit as follows:[5]
“I had hoped to work hard and earn good money in Australia. I wanted to make a good life here for me and my family. Before injuring myself at work I was physically fit and a hard worker. I had hoped and planned to get into the construction industry over time.”
[5]Affidavit of plaintiff sworn 17 June 2019, PCB 11, paragraph [32]
17By reason of the plaintiff’s age at the date of injury, the statutory test is less onerous than for a worker who was over the age of 26 years. The plaintiff must firstly satisfy the Court that he has a loss of earning capacity of 40 per cent or more as at the date of hearing, and, secondly, that he will, after the date of the hearing:
“(ii) ... continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more”.[6]
[6]Section 325(2)(e)(ii) of the Act
18The plaintiff submitted that the usual common law position was to be applied in determining whether the plaintiff met the relevant statutory test. The defendant, on the other hand, submitted that the common law position applied in respect to assessing the plaintiff’s “before injury” earning capacity, but that the common law test was displaced by the statute in respect to the assessment of the plaintiff’s “after injury” earning capacity, and was determined by the application of the Panel’s Opinion.
19Section 325 is identical in language to s134AB of the Accident Compensation Act 1985 (“the ACA”). When s134AB of the ACA was introduced, the then Minister for WorkCover said in the Parliamentary Second Reading Speech that:
“In the case of such workers, a court may have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life. This means the usual common-law position prevails.”[7]
[7]Accident Compensation (Common Law and Benefits) Bill, 13 April 2000, Hansard, p1003, per the Honourable Mr Cameron (Minister for WorkCover)
20But for being injured, the plaintiff had a range of employments open to him, save, of course, that any potential employment would need to be within the plaintiff’s physical and intellectual capacity. In that regard his upbringing and lack of tertiary qualification, together with limited English language skills, would likely to some extent narrow his vocational options. But I accept that he had the unrestricted capacity for physical work.
21I accept the plaintiff’s evidence that he had planned to try and obtain a better job than the one he had with the employer. In support of that there is the evidence of his friend, Mr Dost Bangash.[8] It is also a history that the plaintiff has consistently given to both treating and medico-legal practitioners. For example, when seen by IPAR as part of a transferable skills analysis report in November 2016, he said that:
“... he has always pushed himself and does not enjoy staying at home.”[9]
[8]Affidavit sworn 3 August 2021 at paragraph [7]
[9]DCB 33
22As against that, his residual capacity for suitable employment as determined by the Medical Panel is now limited to retail sales assistant and electronic assembler. It goes without saying that a wide range of jobs are now unsuitable and unavailable to him.
23In respect to the common law approach to the assessment of damages for loss of earning capacity, Heydon JA (as he then was) in State of New South Wales v Moss[10] said as follows:
“There are two uncontroversial themes running through the cases relating to the assessment of damages for injury to earning capacity. One is that in general it is desirable for precise evidence to be called as to what the plaintiff would have been likely to earn but for the injury and what the plaintiff is likely to earn after it. The second is that the failure to call such evidence does not necessarily result in selection of only a nil or nominal figure as damages for impaired earning capacity.”
[10][2000] NSWCA 133 at paragraph [66]
24Bearing in mind that the plaintiff had un unrestricted capacity for work (or, to use the language of the Act, for “suitable employment”) prior to the incident and bearing in mind that his residual capacity is as determined by the Medical Panel, in circumstances where he is currently out of work and with his options narrowed down to just two jobs, I have no hesitation in finding that in accordance with general common law principles he currently has a loss of earning capacity of 40 per cent or more. Indeed, I did not understand the defendant to seriously suggest otherwise.
25By the application of common law principles, the narrowing of his job options is in my opinion such that he will permanently suffer a financial loss of 40 per centum or more, and so the test for leave to commence a proceeding for loss of earnings damages is satisfied.
26In determining this issue, I accept the submissions of the plaintiff that the usual common law position applies. Firstly, there is nothing in the statute to suggest that the usual common law position does not apply, bearing in mind the comments made in the second reading speech when the identical provision was inserted into the ACA. Secondly, as it is a loss of earning capacity that must be productive of financial loss of 40 per centum or more, the only way of making that determination is to assess loss of earning capacity by using general common law principles and then similarly determining the financial loss in the same manner, but of course in this proceeding applying the Panel Opinion as the binding evidence of residual capacity for suitable employment.
27Pausing. The extent of the plaintiff’s psychiatric symptoms are not in dispute. There is no need to set out the evidence of the various medical opinions, as illustrated by the fact that the defendant chose not to put any relevant medical opinion before the Court, but rather relied instead on the opinions of vocational experts who are without formal medical qualification.
28Accepting, as I must, that the plaintiff has the “after injury” capacity for suitable employment as a retail sales assistant or electronic assembler – in other words, applying the opinion of the Medical Panel – in my view, and bearing in mind we are dealing with a gateway provision,[11] taking a holistic approach in accordance with the usual common law principles, he has a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
[11] Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545, paragraph [78]
29But even if I accept the defendant’s submissions that the common law approach does not apply to the determination as to whether there is a permanent financial loss of 40 per centum or more, the result is still the same, as on the evidence and by application of the Panel’s Opinion, the requisite loss is still made out.
30I accept on the evidence that but for being injured the plaintiff would have pursued better-paid employment, and in particular employment within the construction industry, such as a construction labourer, at a rate of pay which, according to the most recent CFMEU enterprise bargaining agreement, is $46.10 per hour, or $1,659.60 per week for a 36‑hour week, without allowances or overtime. That equates to gross annual earnings of $86,299.20 for 52 weeks.[12]
[12] PCB 35
31The remaining issue for this alternative approach is then whether the plaintiff has a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
32Ms Katherine Rintoule of Flexi Personnel provided an earnings report dated 2 August 2021[13] in which, by reference to relevant employment awards, she gives evidence of retail sales assistant jobs paying $827.80 gross per week, and electronics assembler jobs paying $811.70 gross per week. If the plaintiff’s “before injury” earning capacity is taken as a construction labourer, as earlier set out at $86,229.20 gross per annum, then 60 per cent of that figure is $51,779. Taking the higher figure in the Flexi Personnel report of $827.80 gross per week equates to gross annual earnings of $43,045.60. Acceptance of that figure and applying the Panel Opinion, means that the requisite loss has been made out.
[13]PCB 74g
33The defendant provided evidence of higher rates of pay for those jobs, as set out by Ms Joanne Bryant, Occupational Therapist, in reports of CoWork Pty Ltd. In her report of 15 January 2020,[14] the rates of pay are set out at $46,176 gross per annum for retail sales assistant, and $50,752 for electronic assembler. Ms Bryant obtained those pay rates from Jobs Market Australia and she refers to how and why that source was used by her in her reports[15]. Those rates are still below the 60 per cent threshold. In a supplementary report by Ms Bryant dated 5 May 2021, she annexes extracts from Job Markets Australia and records that the relevant rates of pay for the average weekly full time income (All Ages) for retail sales assistant was then $960 gross per week ($49,920 gross per annum) and for electronic assembler was then $997 gross per week ($51,844 gross per annum)[16]. On the figure given for electronic assembler the defendant submitted that the plaintiff would fail to demonstrate financial loss of 40 per centum or more (by about $1.25 per week).
[14]DCB 103
[15] See, as an example, “Source of Earnings Data” DCB 128
[16] DCB 162-163
34I prefer the figures in the Flexi Personnel report, firstly because the plaintiff’s injury, combined with the restrictions imposed by the Medical Panel, combined with his relevant history and background, tend to the conclusion that “with injury” he is more likely to achieve lower-paid employment rather than higher-paid employment. Secondly, the relevant extract from Job Markets Australia[17] sets out the rate of pay for a worker in the ages between 25 to 29 years, which is the plaintiff, to be $944 gross per week, which equates to $49,088 gross per annum. Thirdly, given the extent of the plaintiff’s symptoms and his lack of experience in the two jobs now found to be suitable for him, I do not accept that he would achieve average earnings. In my view he is more likely to achieve earnings less than average. Fourthly, in the absence of a compelling reason why I should accept the “hearsay upon hearsay” opinion in Ms Bryant’s reports regarding the use of statistics produced by Job Markets Australia, I prefer the approach in the report of Ms Rintoule to rely on the evidence of actual employment awards relevant to the applicable jobs.
[17] DCB 178
35Therefore, either on the application of the broad common law approach or by application of the narrower approach as submitted by the defendant, the result is the same as the plaintiff on the evidence has a loss of earning capacity which will be productive of financial loss of 40 per cent or more, bearing in mind that the Medical Panel found the plaintiff’s condition to be permanent.
36For completeness, and to do justice to the parties’ submissions, the plaintiff in his further affidavits deposes to having ambition to obtain a qualification in a trade such as an electrician or a carpenter. As mentioned, I accept the evidence that the plaintiff had ambitions to achieve a better job than the one he had with the employer. However, the evidence is uncertain as to whether the plaintiff would have had the necessary skills and ability to achieve an apprenticeship as an electrician or a carpenter. I accept he had ambitions in the construction industry, which the defendant also conceded as fair to accept[18] and I accept that those ambitions in fact may have extended beyond a construction labourer’s position. The state of the evidence does not enable a positive conclusion that his “without injury” earning capacity should be assessed by reference to the earnings of a skilled carpenter or electrician, but at the end of the day not much turns on that, as, regardless, the plaintiff has established the requisite loss of earning capacity so as to entitle him for leave to bring a claim for damages in respect to loss of earning capacity.
[18] T60 L25
37Accordingly, I shall grant leave to the plaintiff to bring a claim for damages in respect to loss of earning capacity and pain and suffering. I shall hear from the parties as to the question of costs.
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