Borserio v Hardwicks Abattoirs Pty Ltd
[2013] VCC 993
•12 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-00797
| AARON BORSERIO | Plaintiff |
| v | |
| HARDWICKS ABATTOIRS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
| COMPASS RECRUITMENT AUSTRALIA PTY LTD | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2013 | |
DATE OF JUDGMENT: | 12 August 2013 | |
CASE MAY BE CITED AS: | Borserio v Hardwicks Abattoirs Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 993 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right leg – pain and suffering and loss of earning capacity damages
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering and pecuniary loss damages in respect to injury suffered by him on 28 October 2008 during the course of his employment with the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC with Ms A M Malpas | Patrick Robinson & Co |
| For the Defendants | Mr B R McKenzie | Lander & Rogers |
HIS HONOUR:
1 The plaintiff in this action seeks leave to commence common law proceedings against the first defendant, his former employer, Hardwicks Abattoirs Pty Ltd, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in respect of both pain and suffering and loss of earning capacity damages.
2 The application relates to an injury to the plaintiff’s right leg which occurred on 28 October 2008 when he was then twenty-two. He was working as a slaughterman pursuant to a labour hire arrangement to the first defendant trading as an abattoir.
3 The compensable injury occurred whilst the plaintiff was using a knife. As he was attempting to cut the neck of a sheep carcass, the handle of the knife caught in a hide which was supposed to be slipped away by a previous process of a machine, and as a result of the catching, his hand slipped and jerked and he cut his right thigh with the knife. He severed the femoral artery and vein.
4 There was a large loss of blood on site, and eventually the plaintiff was helped and transported to hospital by ambulance. He underwent surgical repair of the artery and the vein, which took place under anaesthetic, and also a femoral graft was required for vascular repair, to be taken from the left leg.
5 Following that procedure, the plaintiff developed a thrombosis in the femoral artery, so he returned to theatre for a second operation. Following that operation, he developed a compartment syndrome in the upper and lower legs, which was considered by all medical practitioners to be a very serious condition.
6 Accordingly, a third surgical procedure was performed in the form of a fasciotomy where effectively the lower and upper leg are opened up surgically. This procedure was performed to release vascular pressure, and before there could be closure of the wound on this occasion there were complications, resulting in a ten-day stay in hospital overall.
7 Further, the plaintiff suffered nerve damage to the peripheral nerves in the vicinity of the injury, particularly the right femoral nerve where there has been permanent damage, and there were also other nerves affected, including the peroneal nerve, the tibial nerve and branches of the sciatic nerve.
8 As a consequence of that injury, the plaintiff has lost significant muscle bulk in the right leg compared to the left, he has a wasting weakness and he has disturbed sensation through the peripheral nerve system. He has also a general neuralgia of the peripheral nerves and he has adhesive scar tissue which has left him with neuropathic pain, along with hypersensitivity, allodynia and wasting.
9 Since the time of the accident, he has ingested a myriad of medications, including Duloxetine, Endep or Amitriptyline, and he has had Gabapentin, Mersyndol Forte, Panadeine Forte, and recently he has been ingesting Tramadol and Endone.
10 At the hearing, it was not in dispute that the plaintiff suffered a compensable injury in the course of his employment with the first defendant on or about 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.”
See in particular s134AB(38)(b) and (c) of the Act.
11 The plaintiff also relies on paragraphs (b) and (c) of ss(37) of s134AB of the Act but the main thrust of the claim was pursuant to paragraph (a).
12 In his opening, Counsel for the defendants indicated that the main issue before the Court was whether the impairments existing at the time of hearing, when judged by comparison with other cases in the range of possible impairments or losses of a body function, could fairly be described as being more than significant or marked and as being at least very considerable.
13 In particular, at transcript 16, Counsel stated that the plaintiff's credit was in issue with respect to a number of factors, which would be explored in cross-examination. In essence, Counsel stated there was no issue about compensable injury, no issue about causation and no issue about permanency of a physical condition. There was an issue, as already stated, as to whether the physical condition is “serious” in accordance with the legislation.
The Injury
14 The plaintiff was examined by consultant neurologist, Dr Robert Hjorth, on 16 May 2013. The relevant history taken at that time was that the plaintiff told him he had tried to go back to work but was not successful and essentially, he had not worked since the accident. His present problems at that stage were:
(i) Constant pain in the right thigh, the site of the stabbing;
(ii) Numb skin between the knee and the ankle, uncomfortable “like hot water pouring on it”;
(iii) Numbness at the site of the main graft and the left leg;
(iv) Wasting in the right thigh and knee;
(v) Low-back pain: “They say that my standing and gait are crooked”.[1]
[1]exhibit S, Plaintiff’s Court Book (“PCB”) 141
15 On examination, Mr Hjorth found that there was wasting of the right quadriceps and the right adductor muscles. Examining the power showed reduced power of hip flexion and knee extension. Mr Hjorth was not sure of the extent to which the weakness was due to nerve damage and the extent it was due to pain. Sensory testing showed reduced pinprick and light touch over the anterior and posterior calf on the right side but excluding the sural nerve and excluding the nerves at the sole of the foot. Also, there was a long strip of reduced sensation at the site of the left vein graft. Mr Hjorth found the following impairments:
(i)There was a substantial sensory loss in the territory of the right common peroneal nerve;
(ii)There was substantial loss in the territory of the tibial nerve and those branches of the sciatic nerve that supply the back of the leg;
(iii)The plaintiff had pain and sensory loss in the territory that is probably supplied by the femoral nerve and its branches. He certainly had pain and he limped and it restricted his activities;
(iv)The plaintiff has weakness in the femoral nerve and Mr Hjorth thought this was due to femoral nerve involvement although it could have possibly have had other causes;
(v)Apparently the femoral artery had been replaced by a section of vein from the left leg.[2]
[2]Exhibit s, PCB 143
16 Mr Hjorth’s assessment of the injury was as follows:
“(3) This was a very serious injury. Had it occurred in 1950 he would have lost the leg. He has been left with a lot of pain and I can see no reason to think that it’s anything but physical. He was not psychologically disturbed when I saw him as far as I could tell from a general examination but pain is a difficult symptom and it always causes some degree of psychological distress.
(4)I don’t think he can go back to the work he did in the past. It might be possible for him to find a job where he could move between sitting down and standing up and have time off work. Certainly one would hope that a man as young as this should be able to find something to do. Of course he has no academic background and it is going to be hard for him to find a suitable job.”[3]
[3]Exhibit S, PCB 143
17 As to whether the plaintiff would be fit for alternative work, Mr Hjorth opined as follows:
“Now the key thing here is that Mr Borserio has trouble with standing and walking. If he had a job where he could sit down and get up and move around and so on, it would be reasonable for him to do that. It would be essential that he could move and have a rest as necessary.
Looking through the list that you provide, I must say that I am unsure about some of the activities. I would have thought that a security officer, an HR truck driver and forklift driver would not be possible. It may be that a customer service sales assistant would be all right, providing that he could sit down for much of the work. I am not sure if a hand packer had to sit or stand but I would assume that they would have to stand. Again, the same applies to packer and container filler so that it’s hard to provide an answer to these except to say that any work he does must have the capacity for him to move around and can’t involve long standing or walking. Even with this it might be difficult.”[4]
[4]Exhibit S, PCB 144
18 The plaintiff was also examined on a number of occasions by Associate Professor Kenneth Myers, consultant general surgeon. In his report dated 15 July 2013,[5] Mr Myers states:
“In relation to the right leg, he told me that he gets a throbbing ache where the knife wound occurred, extending down to below the knee towards the ankle. He states that there is loss of sensation in the whole of the leg below the wound, apart from a strip down the back of the thigh. In relation to the left leg, he told me that that part is sensitive where the vein was taken from, particularly if he rubs against it. On examination, of note was wasting of the right quadriceps, the measured circumference of the right thigh being five centimetres less than the circumference of the left thigh at the mid-thigh region. The measured circumferences of the calves were equal.”
[5]Exhibit O, PCB 106
19 In particular, Mr Myers disagreed with the defendants’ occupational physician, Dr Yong, to the effect that the plaintiff had a current capacity for work. In Mr Myers’ opinion, the plaintiff’s inability to stand for prolonged periods of time would make it impossible for him to work as a security officer. His educational background would make it impossible for him to be trained as a website designer.
20 In Mr Myers’ opinion, the plaintiff had no capacity for full-time unrestricted manual or any pre-injury employment. He was of the view that his educational background, age and limited past work experience would make it impossible for him to obtain any alternative employment in the future. In addition, his physical disability with prolonged pain, particularly with standing, would make it impossible for him to cope with even the most simple employment.
21 Finally, Mr Myers agreed with Professor Mendelson, psychiatrist, for the defendants, that all of the plaintiff’s disability results from a physical injury with no contribution from psychological factors, with pain and suffering and loss of earning capacity being entirely due to physical injury.
22 The treating general practitioner, Dr Pooyan Tofighi, referred the plaintiff to the Pain Management Clinic at The Royal Melbourne Hospital. The diagnosis of the consultant in pain management, Dr Kevin Young, in his report dated 31 January 2013,[6] was to the effect that the diagnosis is:
“Chronic right lower limb, neuropathic pain following a penetrating knife injury at work on 9 October 2008, complicated by compartment syndrome and thrombosis.”
[6]Exhibit M
23 The plaintiff described to Dr Young having deep, sharp pain in the right thigh, feeling “like the knife is still in there”, as well as in his knee and lower limb, feeling like it is “bleeding from the inside”.
24 The pain is throbbing and constant. He rates it from 3 to 10 out of 10 severity, and is at 3 out of 10 at present after ingestion of Endone. The pain is worse at night and on waking. He is unable to stand for greater than 10 minutes on that leg, but compensates by weight bearing mainly on the left and is able to walk 2 kilometres before the pain becomes unbearable. He obtained significant relief with Endone. He had sleep interference, obtaining 4 hours in total per night, interrupted two-hourly.
25 Dr Young noted that the plaintiff had trialled multiple medications in the past, including Amitriptyline and other medications mentioned earlier. The Mersyndol Forte resulted in migraines and the Diazepam has been appropriately ceased.
26 Dr Young noted that the plaintiff underwent a multidisciplinary pain program at Epworth Hospital for eighteen weeks, as well as at Bendigo, but did not find these of benefit. Examination of the right thigh revealed a healed scar with surrounding hypoesthesia. There was significant atrophy of the left vastus muscles, particularly medialis. There was no allodynia and mild hypoalgesia of the posterior lower limb with a general hypoesthesia below the knee.
27 Finally, Mr Young stated:
“I have discussed the challenging treatment of neuropathic pain particularly when it has been refractory to first line agents. I have suggested that we try a Buprenorphine patch 10 micrograms per hour, topical, weekly in the beginning whilst monitoring for any skin reactions.”
28 The treating general practitioner, Dr Tofighi, has certified the plaintiff as totally incapacitated as at 4 December 2012.[7] Diagnosis at that stage was:
“Vascular injury to the right femoral vessels with vascular repair at RMH October ‘08 complicated with DVT. Ongoing neuropathic pain.”
[7]Exhibit U
29 The defendants, for their part, in line with the concessions made by Counsel in his opening, tendered the following relevant evidence:
30 Dr J Rowe, specialist occupational physician, examined the plaintiff twice on 16 September 2009 and 21 September 2010. Of note, is that on the first examination, he found that:
“His right thigh was grossly wasted and was 36 centimetres in circumference compared to 39 centimetres on the left side. The right calf too was wasted and was 32 centimetres compared to 24 centimetres on the left side.”[8]
[8]Exhibit 4, Defendants’ Court Book (“DCB”) 5
31 Dr Rowe’s diagnosis at that stage was that the plaintiff had suffered a deep stab wound to the right thigh, severing the right femoral artery and vein. The superficial nerves also had been severed and this had resulted in numbness in the right foreleg and weakness in the right leg. He considered that there was no functional overlay or exaggeration present. At that stage, Dr Rowe considered the plaintiff may not be able to return to his pre-injury employment at the moment, but he would see no reason why in the future he could not return to work in an abattoir.
32 The restrictions on him would be because of his inability to stand or walk for long distances and he would have difficulty coping with work in an abattoir currently.[9]
[9]Exhibit 4, DCB 6
33 At that stage, Dr Rowe considered the plaintiff needed to continue with his exercise program to build up the right thigh and calf and the stronger that he became the more likely he would be to find work. There were no other alternative treatments required at that stage. His exercises at home were thought to be reasonable.
34 Dr Rowe then reviewed the plaintiff on 21 September 2010. The plaintiff still had some pain in the right thigh and leg, although it was said to be improving at that stage. On examination, the right thigh was 36 centimetres at an equal point to the left, which was 40 centimetres in circumference –
“So he has lost one centimetre in the right. Thus, the exercise program has not been successful.”[10]
[10]Exhibit 4, DCB 11
Further:
“He had lost 20 degrees of extension in the right knee now and he could flex normally. His anterior cruciate and medial ligaments were lax in the right knee which is a new finding. He had difficulty squatting.”[11]
[11]Exhibit 4, DCB 11
35 On that occasion his opinion was to the effect the plaintiff had suffered a stab injury to the right thigh resulting in weakness and wasting in the right quadriceps muscle. The condition had not resolved and further, he had not improved since seen last time. The thigh was still wasted and weak; however, he did not think that this prevented him from working.
36 In expressing that opinion, Dr Rowe did not state what account he made of the pain complained of by the plaintiff and the effect that that might have on his ability to work.
37 As at September 2010, Dr Rowe thought that the plaintiff could go back to work in his pre-injury duties and hours and he saw no reason why he could not go back to work as a slaughterman:
“He might have to rest and take a break during the course of the working day but there is no reason why he could not work in that capacity.”
38 Given the diagnosis made by Dr Rowe and the findings on examination, together with the complaint of the ongoing pain, I find it hard to reconcile this opinion with those of the plaintiff’s doctors to the effect that the plaintiff, at that stage, was fit for full pre-injury duties and hours.
39 Of interest, Dr Rowe says that there are no psychosocial factors that he is aware of. Further, he states:
“He may need some investigation for the condition of the right knee. It seems that he has developed ligamentous laxity there and his quadriceps is not building so the treatment offered to him up until now has not really helped to his right leg.”[12]
[12]Exhibit 4, DCB 13
40 Given the deterioration in the condition between the two examinations and given that the plaintiff was not fit for work on the first occasion, “currently”, it is hard to see how, upon deterioration, he is now fit for full-time duties.
41 The plaintiff was also examined on behalf of the defendants by Dr Dominic Yong, specialist occupational physician, on two occasions: 14 May 2012 and 12 June 2013. On the first occasion, Dr Yong took a history that the plaintiff’s treatment included Endone, two tablets a night; Lyrica, three tables a day, together with exercise. He was currently being certified unfit for any work duties at that stage.[13]
[13]Exhibit 9, DCB 58
42 On examination, apart from the scarring, there was obvious wasting in his right thigh where the circumference of the right lower limb 20 centimetres to the proximal to the tibial tuberosity was 35 centimetres compared to 37 centimetres on the left. There was tenderness to palpation over the right upper leg scars. Otherwise the examination was considered to be unremarkable.[14]
[14]Exhibit 9, DCB 60
43 In summary, on that occasion, Dr Yong considered the plaintiff had reported a stab wound to his right thigh severing the right femoral artery, vein and, in addition, nerves. This had been complicated by the presence of a chronic pain condition in the right leg. Dr Yong thought the plaintiff did have a current capacity for work but with the following restrictions:
§ avoid prolonged standing and walking tasks
§ avoid firm pushing and pulling on a repeated basis
§ avoid safety critical work whilst he is on narcotic medication and other medications which can cause drowsiness
§ vary posture regularly between sitting, standing and walking.
44 Therefore, taking these restrictions into account, the following tasks comply with the restrictions: security office (gatehouse), website designer.
45 For my own part, I find it difficult to reconcile the findings on examinations and the restrictions on the plaintiff’s employment with a requirement to apprehend persons who may come under suspicion as a security officer.
46 In addition, Dr Yong considered that meatworker/slaughterman and baker/ pastry chef occupations do not comply with the restrictions, as he would be expected to stand for prolonged periods and thus would be unable to have a variety of postures. Further, he believed that forklift driver and truck driver are not considered suitable whilst he remained on narcotic medication and other medications which cause drowsiness.
47 Dr Yong conducted a second examination on 12 June 2013. The plaintiff indicated he had the following levels of function: sitting not unreasonable; standing for a maximum of 30 to 60 minutes; walking for a maximum of one kilometre; driving over one hour.[15]
[15]Exhibit 9, DCB 67
48 On examination, there was again obvious wasting of the right thigh, especially medially. The circumference of the right thigh 27 centimetres proximal to the tibial tuberosity was 36 centimetres compared to 38 centimetres on the left.
49 In summary, Dr Yong considered the plaintiff had a persisting chronic pain condition after severing his right femoral artery and right femoral vein in addition to nerves in this area.[16]
[16]Exhibit 9, DCB 68
50 The inference I take from this opinion is that the chronic pain is physically-based in accordance with the physical diagnosis referred to therein.
51 Dr Yong noted that the current treatment included the following: Endone, one tablet a night; Tramadol, 200 milligrams slow-release, one tablet in the morning; Gabapentin, one tablet a day; doing exercises in a home gym.[17]
[17]Exhibit 9, DCB 68
52 Once again, restrictions were imposed as follows:
§ avoid prolonged standing and walking tasks
§ avoid firm pushing and pulling on a repeated basis
§ avoid safety critical work whilst he is on narcotic medication and other medications which can cause drowsiness
§ vary posture regularly between sitting, standing and walking.
53 Thereafter, Dr Yong considers that the plaintiff may have a capacity for other alternative occupations.
54 The plaintiff was also examined on behalf of the defendants by a plastic surgeon, Mr Murray Stapleton, on 30 May 2012 and 4 April 2013. The examination conducted on the first occasion seems to be confined to an examination of the scarring as befits an examination by a plastic surgeon. Thus, his opinions with respect to abilities to perform various occupations would appear to be in keeping with that limited examination and expertise.
55 There was a second examination by Mr Stapleton on 4 April 2013. The examination was similarly confined, and photographs were taken. Although Mr Stapleton gave an opinion that the plaintiff was not capable of a job involving standing, climbing or walking, it would appear to me that the same comment would have to be made that such an opinion does not include a neurological or neuropathic condition.
Credit
56 The defendants’ Counsel had telegraphed in his opening that credit was an issue in this matter, and to that end, four DVDs were shown to the plaintiff,[18] taken on various dates in 2012 and 2013. These videos were shown to a number of practitioners, both for the plaintiff and for the defendants. Dr Yong specifically refers to the surveillance material in some detail in his report dated 23 July 2013.[19] He viewed the surveillance material from 11 June 2013 and 12 June 2013 with a duration of approximately 33 minutes.
[18]Exhibit 3
[19]Exhibit 9, DCB 71
57 Upon reviewing the film, Dr Yong recorded the following observations concerning the plaintiff:
· bending to the back passenger door whilst the door was open
· to access his vehicle at the back which required him to squat
· walk in an unrestricted manner
· walk and carry long items in an unrestricted manner, and work at a low height at his vehicle
· ability whilst working at his vehicle to crouch, kneel and squat
· drive a motor vehicle
· stand and remove a battery from underneath the bonnet
· lie down to work on a vehicle and then go to a standing position in an unrestricted manner
· to pull a wheelie bin
· to fill his motor vehicle with petrol
· reach into his car boot in an unrestricted manner
· walk in an unrestricted manner from 13:35 but then have a limp at 13:41 outside his Heidelberg Consulting Suites.
58 Dr Yong considered, having viewed this film, that there was a significant improvement in the level of function, compared to when he was formerly assessed by him. Dr Yong stated the plaintiff was able, in the footage, to do a variety of postures including the following: standing; bending his back; walking in an unrestricted manner; crouching; kneeling; squatting; lying. He was able to change positions in an unrestricted manner during the footage.
59 In my view, these observations are consistent with what I noticed when the films were shown in cross-examination. Further, the additional films, which were shown on 26 November 2010, 19 and 20 May 2011 and 4 May 2012, were consistent with these observations, plus additionally showing the plaintiff running across the road at a moderate speed. In cross-examination, it would have to be said that the plaintiff did not readily agree with the propositions being put to him by Counsel for the defendants as to any lack of disability shown on the film. In particular, the plaintiff stated that the film did not show that he was in pain and the plaintiff stated that on occasions, he was favouring the right leg, so as to protect it from weight-bearing manoeuvres.
60 Counsel for the plaintiff, in final submission, submitted that the matters and actions of the plaintiff shown on the surveillance material were not at odds with any of the examination findings of the various medico-legal examiners or the histories taken from them. In particular, he pointed out the history taken by Dr Yong, prior to viewing the surveillance on 12 June 2013. On that occasion, the plaintiff had advised him that sitting was not unreasonable and he could stand for a maximum of 30 to 60 minutes. He also stated he could walk for a maximum of one kilometre and he could drive for over an hour. I accept this submission.
61 It seems to me that the plaintiff was not being evasive in any manner in delivering that history, which, of course, had to be compared to findings on examination already referred to – the complaint of chronic pain and the need for medication – which has not been challenged by any practitioner, as to the diagnosis or the need for the medication. In fact, Dr Yong states, having seen the video surveillance, that the range of medications being then ingested by the plaintiff could impair his concentration. Thus, there was a restriction where he would need to avoid critical work whilst he is on narcotic medication and other medications, which can cause drowsiness.[20]
[20]Exhibit 9, DCB 73
62 It seems to me that in placing this restriction on the plaintiff’s ability to work, necessarily means that he accepts the pain complained of is still extant to the extent that narcotic medication is required. The surveillance film has not been shown to Dr Rowe apparently, and Mr Stapleton’s opinion of 22 July 2013 must suffer from the same limitations referred to in his earlier reports, in that it does not refer to neurological and neuropathic findings on examination.
Findings
63 The plaintiff’s case is essentially that the plaintiff is totally incapacitated pursuant to an impairment to the right limb under paragraph (a) of the definition referred to. There are matters which cause me to doubt this contention, being:
(a) The level of function as disclosed by the film would suggest that a physical occupation of some sort would be within the capabilities of the plaintiff;
(b) His daily ingestion of marijuana or cannabis must affect this motivation, particularly when it is not supported by any of the doctors as a necessary analgesic treatment for the injury.
64 That being said, I accept the plaintiff’s evidence, on the whole, that he could not return to an abattoir to perform the duties of a slaughterman or a meatworker because of the precarious environment consisting of the use of knives and slippery floors and the level of concentration that would be required. This is particularly so when he is ingesting quantities of narcotic medication, which has now been existing for some five years.
65 Given that there is no issue as to permanency of the physical impairment, I am of the view that the plaintiff is not fit for pre-injury duties or any other physical labour on a full-time basis. Having made those observations, I consider that the most applicable evidence in this regard is that of Associate Professor Myers in his report of 13 September 2012,[21] to the effect:
“I doubt that he would be able to cope with employment in any capacity, but if he were to do so, I suspect that it would be for a maximum of two to four hours a day for two to three days a week. However, I believe that his pain and pain management would considerably impair his ability to cope, even in the short term, for any period of time at work.”
[21]Exhibit O, PCB 104
66 This restriction of 4 hours a day, three days a week is only 12 hours per week. This is to be compared with the level of hours that the plaintiff was working at the time of the injury, as revealed by the employer’s report of injury.[22] Therein it was stated, that the plaintiff was working standard hours of 45 hours per week before being injured, resulting in his usual gross weekly earnings of $1,100 per week, together with average weekly overtime of 4 hours, resulting in another $300 per week. This total of $1,400 per week, which was not contradicted by the defendants in evidence, leads to a 60 per cent figure of $840 per week.
[22]Exhibit D, PCB 49-50
67 Having made the findings that I already have, it would appear to me that the plaintiff would not be capable of earning any figure, even approaching that amount. Further, it is common ground that the plaintiff was under 26 years of age at the time of suffering his injury, and as such, the formula in s134AB(38)(f) of the Act does not apply. This means the Court “may have regard to the probable income from personal exertion, which the plaintiff would have earned but for the injury over the worker’s probable earning life”. This means the usual common law position prevails.[23]
[23]See Accident Compensation (Common Law and Benefits) Bill, Second Reading Speech, 23 May 2000
68 Accordingly, in considering the loss of earning capacity and whether the plaintiff has a permanent loss of earning capacity of 40 per cent or more, after the date of hearing and into the future, I find:
(i)The “three years before and the three years post-injury period” is irrelevant;
(ii)The issue of suitable employment is not relevant, save by reference to s134AB(38)(g) of the Act;
(iii)The Court can have regard to the availability of employment.
69 In this regard, I note that the defendants’ evidence from Job-Fast[24] is to the effect:
“A labour market analysis conducted on 21 September 2009, revealed no advertised positions within reasonable travelling distance of Aaron’s residence.”
[24]Exhibit 11, DCB 113
70 This having been said, even if I am wrong in making this finding, the limits placed on the plaintiff by his disability would, in my view, still entitle him to the relief, as already indicated.
71 Accordingly, there will be leave for the plaintiff to issue proceedings at common law for loss of earning capacity.
72 Further, in accordance with the principles laid down in Advanced Wire & Cable Pty Ltd v Abdulle,[25] leave will also be granted to the plaintiff to issue proceedings for pain and suffering.
[25][2009] VSCA 170
73 I will hear the parties as to any consequential orders.
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