Brittain v Total Logistic Solutions (Aust) Pty Ltd
[2014] VCC 1933
•25 November 2014
| 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-12-03922
| ROD WAYNE BRITTAIN | Plaintiff |
| V | |
| TOTAL LOGISTIC SOLUTIONS (AUST) PTY LTD | Defendant |
JUDGE: | HER HONOUR JUDGE K BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 September and 1 October 2014 | |
DATE OF JUDGMENT: | 25 November 2014 | |
CASE MAY BE CITED AS: | Brittain v Total Logistic Solutions (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1933 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the lumbar spine – loss of earning capacity – family trust – income from personal exertion
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v CalcoTimbers Pty Ltd (No 2) [2008] VSCA 260; Hadley v Galzon Pty Ltd [2014] VCC 651; Drousiotis v Wingfoot Australia Partner Pty Ltd & Anor [2014] VCC 221; Alter v Alcon Laboratories (Aust) Pty Ltd [2008] VCC 713
Judgment: Leave granted to bring proceedings for damages for loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin QC with Ms N Wolski | Adviceline Injury Lawyers |
| For the Defendant | Mr P Hayes | Wisewould Mahony |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant from February to July 2008 (“the said period”) and in particular, on 26 June 2008 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to loss of earning capacity only, the defendant having granted a certificate in relation to pain and suffering.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the lumbar spine.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) impose specific burdens in relation to a claim for loss of earning capacity.
8 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”.
9 The loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
14 The plaintiff relied upon two affidavits and he was cross-examined. He also relied upon an affidavit sworn by his son, Beau, on 30 September 2014. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
15 The plaintiff is presently aged fifty-three, having been born in March 1961. He lives with his son, Beau, in Adelaide.
16 After leaving school at age fifteen, the plaintiff drove trucks for his father for about three or four years. He then worked at a Brisbane service station for about three years before returning to Melbourne and commencing interstate truck driving.
17 From 1983 to 1999, the plaintiff drove local and interstate truck routes for various employers. During his last year with Discount Freight Express in 1999, the plaintiff had a knee injury. In about May 1994, the plaintiff had some back pain while working for that employer, from which he fully recovered. He did security work on and off from around 1993, working at various venues.
18 Prior to the said date, the plaintiff suffered injury to his left arm and neck in 1996. He recovered and returned to work shortly thereafter. In 1998, he had a right thumb operation and left knee surgery. His knee fully recovered.
19 In 1999, the plaintiff moved back to Melbourne and gained employment with Baytec, undertaking driving work for K&S Freighters and also some interstate driving for DAS. He then returned to K&S Freighters undertaking local runs.
20 On 10 April 2001, the plaintiff commenced work as a casual truck driver at Calleja Transport. After six weeks, he became a permanent staff member, working around 63 hours a week, with his duties involving transporting refuse from the clients’ worksites to the tip.
21 On 14 February 2002, the plaintiff had a transport accident at work. After his vehicle hit a pothole, he experienced pain in his lower back and left leg. He stopped work in March 2002.
22 Mr Carey, orthopaedic surgeon, carried out an L5-S1 laminectomy on 11 June 2002 at the Freemasons Hospital where the plaintiff spent ten days.
23 The plaintiff brought common law proceedings in relation to this injury. This claim was settled in June 2011.
24 In November 2002, after a week of light duties, the plaintiff returned to light, full-time duties. His employment was terminated in May 2003, following which he made an unfair dismissal claim. He then obtained a security licence undertaking work as a security guard.
25 The plaintiff agreed he had told Mr King, consultant orthopaedic surgeon, he once worked as a bouncer. He stopped that work about four years ago, as he was limited in what he could do and also there was just not enough work around at the time.[3]
[3]Transcript (“T”) 46
26 In 2004, the plaintiff began light driving work for McColl’s Transport and Palm Trans. Whilst he had some back and leg pain at work, he was able to drive. In November 2004, he injured his neck at work whilst unloading his truck.
27 On 17 November 2005, the plaintiff had a cervical discectomy and spinal fusion at C5-6 performed by Mr Malham, neurosurgeon (“the neck surgery”). The plaintiff was off work for about a year.
28 The plaintiff then had some increased low back pain. On 4 May 2006, he attended Dr Verrills, a pain management specialist. He underwent bilateral L3-4, L4-5 medial branch blocks in his lower back and also had a branch block around the level of the cervical fusion. The plaintiff had further sacroiliac joint blocks in September 2006, with some improvement in his lower back pain.
29 The plaintiff then worked with Pure Logistics as an interstate truck driver from March 2007 for about ten or eleven months.
30 In about February 2008, the plaintiff started work with the defendant. He was assigned a Kenworth Aerodyne B-double truck, which had good suspension. It was a perfect job for him with night driving and no loading.
31 On 17 March 2008, the plaintiff’s general practitioner, Dr Loizou, wrote to the defendant to advise that the plaintiff still had an irritable low back and to confirm that when he drove the Kenworth aerodyne truck, he managed well, because it had a good chair. The doctor requested that the plaintiff only be assigned to drive that truck or a similar truck.
32 Dr Loizou wrote that letter, because on several occasions the plaintiff had been asked by the defendant to drive the 404 Kenworth truck which caused him back pain because of the condition and set-up of the truck.
33 On 25 March 2008, the plaintiff attended Dr Loizou because he had some low back pain and he was thinking of returning to physiotherapy. On 31 March 2008, he again saw Dr Loizou, as the insurer advised him that he needed a letter from him.
34 On the evening of the said date, the plaintiff’s manager asked him to drive to Nhill in a truck other than his usual Aerodyne truck. The plaintiff advised him that he did could not drive that truck because it would hurt his back but was told that he had to because it was the only truck available.
35 The plaintiff had difficulties on that trip. The truck had bad suspension and there were problems with the seat. Most of the equipment in the truck was not within easy reach. The plaintiff hit a number of bumps on the road which sent shocks through his body and caused immediate pain in his lower back (“the injury”).
36 When the plaintiff arrived at Nhill, he struggled to get out of the truck and had severe back pain. He could not change over the air lines.
37 On 27 June 2008, the plaintiff complained to the defendant of problems with his back from that drive and that he could not drive that night; however, he was required to make another trip to Nhill, as no one else was available.
38 Several days later, the usual truck was available and the plaintiff drove it for the following four months. He had a lot of pain in his back, although he was driving the good truck.
39 On 21 July 2008, the plaintiff attended Dr Loizou complaining of back pain and he was referred to Mr Carey. The plaintiff saw Mr Carey on 15 September 2008 and he arranged a CT scan.
40 On 9 September 2008, Dr Loizou gave the plaintiff an injection which helped ease the pain for days.
41 The plaintiff’s employment with the defendant was terminated later that month, he believed, because the defendant was not happy with a number of health and safety issues he raised. It also wanted the plaintiff to take on a 14-hour logbook, but he refused because he thought it was unsafe.
42 The plaintiff’s WorkCover claim for aggravation of his back injury was accepted.
43 The plaintiff saw Dr Verrills, pain management specialist, at Mr Carey’s request. He advised the plaintiff of a new type of pain relief involving injections, which the plaintiff thought he would try before having spinal surgery.
44 Prior to the said date, the plaintiff’s back pain on average was 4 to 6 out of 10 and, afterwards, it was about 10 out of 10. By 2009, it was still about 9 out of 10.
45 When the plaintiff saw Mr Carey in January 2009, he recommended a spinal fusion.
46 Following the said date, the plaintiff was taking a lot of Tramadol for pain and had difficulty sleeping and was not eating properly.
47 On 25 February 2009, the plaintiff had another injection and throughout that year, Dr Loizou gave him injections around twice a week. The plaintiff also attended Williamstown Hospital for injections.
48 The plaintiff saw Mr Malham, neurosurgeon, in May 2009. He thought that the plaintiff would benefit from review by Dr Verrills and also by considering injections in his lower back. Mr Malham suggested a branch block, which the plaintiff had under Dr Verrills.
49 A medial branch block was performed on 7 September 2009. The following month, Dr Verrills advised the plaintiff that he was not allowed to return to treatment because he had driven himself home from the day surgery.
50 In October 2009, the plaintiff was referred to Dr Courtney, pain management specialist, whom he ultimately saw in March 2010. The plaintiff had physiotherapy during 2009 in Footscray.
51 By January 2010, the plaintiff’s back felt as though someone was stabbing him on the left side and his left leg was often numb. He had problems sleeping.
52 On 1 March 2010, the plaintiff saw Dr Courtney, who gave him injections in his low back for some temporary relief. Mr Malham organised an MRI scan in May 2010.
53 As the plaintiff was not experiencing any significant relief from back pain, on 10 June 2010, he had a fusion performed by Mr Malham (“the fusion”). Thereafter, he had a week in hospital and two weeks in rehabilitation. He was under the care of rehabilitation specialists, during which time he continued to experience left leg pain.
54 In post-operative reviews by Mr Malham in July and August 2010, the plaintiff continued to complain of cramps in his left leg at night.
55 In December 2010, on review, the plaintiff was continuing to experience numbness around the left thigh, and a core stability muscle-strengthening program was recommended. A CT scan was carried out in December 2010 to assess the fusion.
56 The plaintiff has not returned to work since 30 October 2008.
57 As at October 2011, the plaintiff continued to experience constant aching in his lower back, fluctuating in intensity. There was about a 20 per cent improvement after the fusion but he still had frequent pain with periodic flare-ups. He had constant aching in his left buttock, side and calf, and that had also been lessened to an extent. Since the fusion, the plaintiff had noticed an intermittent shooting pain in the right side and calf. His mobility had not dramatically improved.
58 The plaintiff took magnesium and quinine for cramps in his legs but found they blurred his vision. He took Tramadol and Nurofen for pain and in early April 2011, he commenced a light gym program and was receiving physiotherapy.
59 In his second affidavit sworn 5 September 2014, the plaintiff mentioned that after his 2002 back injury he continued to have back pain but he went back to work and, more importantly, truck driving, which was his passion. While he enjoyed his job with the defendant and he still had pain and was restricted, he was back working full time and coping pretty well. After his work with the defendant, the level of his back pain increased significantly.
60 The plaintiff continues to suffer from frequent lower back pain radiating into his left buttock, hip and down his left thigh. He also has some numbness in his left leg and down to his left foot. His back feels stiff.
61 In addition to back pain, the plaintiff suffers from intense leg cramps, particularly in the left leg, which started after the fusion. He continues to take magnesium and also two to three Nurofen a day. He has difficulty sleeping and relies on Temazepam.
62 The plaintiff does not have any physical therapy such as physiotherapy or chiropractic treatment, as that is not really an option for someone who has had spinal surgery.
63 There was some talk about the plaintiff buying a Midas store and him being trained to do some clerical work but that was not something he could bring himself to do; it was not his forté.[4]
[4]T115
64 When the plaintiff moved to Adelaide in 2012 to be near his son, he wanted a fresh start. The plaintiff had been suffering from depression and, at times, thought of suicide. He wanted to move on with his life and not get caught up with seeing doctors again. He occasionally attended the Salisbury Super Clinic for general health complaints.
The business
65 On 1 February 2012, the plaintiff started a mechanical workshop business, “B&R Automotive Pty Ltd” (“the business”) in Adelaide. The business is operated by his son, Beau, who is a mechanic. Beau runs the business with another mechanic, Darrel Sabbarre. The three of them are equal in promoting the business.[5]
[5]T62
66 The plaintiff agreed that the business was run and managed by him in conjunction with his son. The plaintiff does not work as a mechanic.[6] He has never said it was his son’s business; it is his own business.[7] He agreed that he was in charge of the business, it was all his money, and he was ultimately responsible for managing it.[8] However, it is as much the plaintiff’s son’s business as it is his.[9]
[6]T55
[7]T65
[8]T69
[9]T75
67 The plaintiff agreed that he is the sole director and shareholder of the company. The plaintiff’s son has an interest in his business and it is his inheritance.[10]
[10]T73
68 The plaintiff did not agree that his son operated the business in terms of doing day-to-day mechanics[11] but he is the sole director and manager. The business would not last a week without the plaintiff’s son.[12]
[11]T107
[12]T115
69 The plaintiff lives by himself onsite in an apartment attached to the business. The house or the rooms over the business are “a bit of a rat hole”.[13] The plaintiff is “living in a rat infested hole because of WorkCover”.[14] If he loses his business, he loses everything and he has nothing.
[13]T54
[14]T92
70 The plaintiff has little choice but to look after the apartment, as well as do the shopping and cleaning himself. He does not ask anyone for help. Sometimes he stays for the weekend with a friend.
Business finances
71 The business has not been profitable and the plaintiff has made a loss since it commenced. The plaintiff has lost nearly all of his savings. The business was still not making a profit in its third year of operation.[15] The plaintiff described himself as a bit of a failure following the business loss of $32,592.[16]
[15]T70
[16]T79
72 The plaintiff agreed that he was a ‘tough bastard’ and a hard worker and dealt with challenges but “there comes a point when you’ve got to admit your failings”,[17] so he doubts the future success of the business. There is a real possibility it could crumble. Christmas nearly shut the business last year.[18]
[17]T38
[18]T38
73 The plaintiff agreed he had not provided BAS statements for the last two quarters of the 2013-2014 financial years. He had not done so because he could not handle WorkCover any longer.
“It had pushed me to despair where I could not function; I could not get out of bed. I was going broke fast because of the treatment and seriousness of my decay due to WorkCover because of situations like today; like having to go and see doctors that tell me I should drive a forklift when 50 per cent of the time I would be driving it backwards after having a disc replaced in my neck and spine.”[19]
[19]T77
74 The plaintiff’s accountant had told him it was an unreasonable request to have to provide the more recent BAS statements.[20]
[20]T78
75 The plaintiff could not simply double the income from the first two BAS statements in 2013-2014 to show what the business would make in the whole year. He could assure us that the second half would be low. If he assumed the sales would be doubled, he “would be stupid as you’re [counsel for the defendant] indicating that I may be, because that is not true”.[21] Recently the business turned over only $1,300 to $1,400 for the week. Multiplied by 52, that fell far short.[22]
[21]T82
[22]T82
76 The plaintiff ultimately agreed there would be increased sales of about 20 per cent, having said initially “How long is a piece of string?”[23] He hoped the business would make a profit,[24] but with increased sales, there would be increased costs and he could not afford more staff.[25]
[23]T86
[24]T88
[25]T89
77 Two loan cars were required at the commencement of the business, to be driven by customers.[26] The business bought a further loan car in 2013 as it was cheap.
[26]T93
78 The business bought a new car on hire purchase for $25,000 that will show up on the 2015 accounts.[27] It was purchased although the business was struggling, as the plaintiff had no other way to pay for it. [28]
[27]T91
[28]T92
79 The plaintiff agreed the utilities claimed as expenses on the Profit and Loss Statement included costs of the other building where he lived.
80 The plaintiff agreed the business paid wages of $80,600 in 2013, for both his son and Darrel. It was wrong to say they had both been kept on because the business was travelling sufficiently well financially.[29]
[29]T95
81 The plaintiff denied he was playing down the extent of the business or trying to exaggerate the effects of his injury.[30]
[30]T50
82 In re-examination, the plaintiff presented his last seven bank statements. He has not received any drawings from the business over the last twelve months. If he was to pay drawings, they were to come out of the business account into his personal account.
83 To the plaintiff’s knowledge, the business over the last twelve months has not had a surplus of funds in any way.[31]
[31]T111
84 The plaintiff has not done his BAS statements over the last six months because he cannot handle this anymore. The business has not made a profit; if it had, he would have bought a house or a Harley Davidson. He does not have any money to do those things. He confirmed the information given to his accountant was accurate, as he did not want any drama.[32]
[32]T114
85 Over the last twelve months, the plaintiff has not received any drawings from the business.[33] These would usually be paid into his ANZ Bank personal account. Statements from the last seven months were produced showed no payments from the business.
[33]T111
Work duties
86 Living at the workshop gives the plaintiff some purpose during the day. As he does not sleep well, he usually gets out of bed around 10am. He can spend the day walking around the workshop and resting when he needs to. Sometimes he talks to a sales representative. If the business continues to make a loss, the plaintiff will have to close it down.
87 The plaintiff’s activities vary from day to day. Some days he does very little because of his pain. Other days he opens the gates, takes out the bins, and throws the ball to the workshop dog. He tries to walk the dog every day. Each day is different and depends on the plaintiff’s lower back pain and the cramps he experiences. Some days he is in bed for most of the day. He does not do any hands-on mechanical work. He is not qualified to do mechanical work and he also limits himself to basic administrative tasks to protect his back.
88 The fact the plaintiff owns the business gives him the ability to coordinate his day-to-day activities and lifestyle around his capabilities, which he would not be able to do in the future if he ever needed to work for an employer.
89 The plaintiff would not be able to cope in a proper employment environment as he cannot reliably get out of bed each morning and turn up to work. Also, his pain is distracting and often on his mind. He finds it hard to concentrate because of his back pain and leg cramps. The pain makes him tired and he finds it difficult to sleep. He often feels lethargic and lacks energy during the day.
90 The plaintiff confirmed his description of his activities in his second affidavit. He denied that he was endeavouring to understate or minimise his working capacity.[34] He also disagreed that he exaggerated the extent of his future working capacity.[35]
[34]T109
[35]T110
91 The plaintiff confirmed he did not do any physical work in the business. Getting out of bed is physical work for him, as is putting on his shoes, thus he does not wear them. Picking up pieces of hamburger wrappers at lunchtime would be physical work. He empties a bin and picks up spanners.[36]
[36]T56
92 The plaintiff is not very good at bookwork but he does some for the business, on occasions printing out invoices and job receipts, getting the records to the accountants. The mechanics are good at invoicing.[37]
[37]T116
93 The plaintiff does the banking and he deals with the wages which are just debited from the bank account each week.[38]
[38]T59
94 The plaintiff agreed he was on Facebook and knew how to operate it. He had nominated himself as managing director on B & R Automotives on LinkedIn. Arguably, that title was correct.[39] Beau puts things on Facebook about the business.[40] The business schemes set out on Facebook were Beau’s ideas.[41]
[39]T99
[40]T100
[41]T101
95 The plaintiff does not know how to do Excel spreadsheets. He does not deal with stocks, purchases and sales on the computer because he does not know how to.
96 The plaintiff would not describe himself as full time. He is not working in the business working eight hours a day. It would be totally and utterly inaccurate that he did the lion’s share of administrative and clerical support for the business.[42]
[42]T66
97 The business is run thought a Family Trust. In layman’s terms, the plaintiff is just a “go-for”, a “Mr Fix-it”. He washes dishes and pays bills and does internet banking, day-to-day duties. Beau opens the business and closes it at night. The mechanics do quotes and the work. The only work the plaintiff charges for is writing a monthly article in a truck magazine.[43]
[43]T36
Capacity for alternative employment
98 The plaintiff has no training as a mechanic. He started the business, as it seemed the most logical thing to do as his son is a mechanic and it is something he thought he could get involved in to create a future. The plaintiff was unable to envisage any other employment he thought he would be able to do and he would try anything he could handle.[44]
[44]T37
99 The plaintiff did not think he could do anything else in the automotive field because he did not have any training. Whilst he had a healthy interest in motor vehicles and motor racing, the plaintiff would not be able to work on newer cars with computers. He would not be able to work in retail in a repair shop.[45]
[45]T41
100 The plaintiff agreed he told Mr Simm that theoretically he might be able to go back to work where he could stand and move around and perform light work but he could not put forward any specific suggestions.
101 The plaintiff accepted Dr Brown’s assessment of his capacity that he could do work not involving frequent bending or heavy lifting and he had been doing satisfactorily manual tasks for the last couple of years. He then disagreed that he had a capacity for appropriate duties on full-time hours.[46]
[46]T68
102 If the plaintiff had a job in a shop stacking shelves and storing automotive parts, it would be menial and it would not satisfy him; he could not do it. He could not do it physically to the level an employer would want. He would not employ someone like himself to do it.[47]
[47]T113
103 If the plaintiff sits for an extended period of time his left leg goes numb.
104 The plaintiff confirmed he had some problems with reading and would have difficulties with extensive clerical work, which would certainly create a headache. The plaintiff has never been a clerical person.[48]
[48]T115
105 The plaintiff had managerial experience in transport for a short time.[49] He could not manage his temper working outside his own business. Beau is scared of him.[50]
[49]T63
[50]T64
106 The plaintiff has had “more jobs than hot dinners”.[51] He confirmed that 80 per cent of his jobs he had been sacked from because of being aggressive or outspoken. His first rule of life was:
“Do unto others as I’d have others do unto me. If someone treats me well, I treat them with gold dust. If someone comes at me with knife, I go at them with a gun. I don’t take a backward step off anyone, if that makes sense. So my staff I treat them well. I would do anything for them within my abilities.”
[51]T65
107 The plaintiff also set up a business called ‘Two Big Strong Men’, Trustee for the Brittain Family Trust. It is a bit like ‘hire a husband’ but he has not really gone ahead and done anything.
108 The plaintiff did not mention his Adelaide business plan to Mr Simm in January 2012 as it was not to be an occupation. It was a starter business, with his son doing the manual labour, without the plaintiff needing to do it. The plaintiff would be self-employed and be governed by his own activities and abilities to perform daily tasks.[52]
[52]T49
109 The plaintiff did not want to tell the world about that plan because he did not want any negative comments. He was discussing with Mr Simm the situation as an employee.[53]
[53]T50
Surveillance
110 The plaintiff disagreed wearing a work shirt at the business meant he was working because he would wear one for team spirit.[54] He did so for the sake of uniformity and wanting to present a good image – “Just because I play a piano does not mean I’m a piano player”.[55]
[54]T95
[55]T96
111 The plaintiff was shown 12 minutes of film taken on 11 July 2014 and a minute of film taken on 4 July 2014.
112 The plaintiff agreed he was wearing a work shirt on both occasions but disagreed he was necessarily working. He does not get out of bed before 10.00, 10.30 or 11.00am on any given day. Sometimes he has a shower at three o’clock and goes out shopping.[56]
[56]T104
113 The plaintiff was shown on 11 July 2014 washing his own car at home after hours.
114 The plaintiff has done some cleaning of customers’ cars very cautiously and would not do it if he knew he was going to have problems.
115 When it was suggested to the plaintiff he did washing and vacuuming a little more often than he was suggesting, the plaintiff said Beau could be called to explain the level of the plaintiff’s activities; however, he did not feel this was needed.[57]
[57]T105
116 The plaintiff does not wash cars at any point where he thinks it is going to be detrimental to his back injury and sustained long-term health. He can from time to time wash and vacuum; he is not a cripple.[58]
[58]T106
The Plaintiff’s lay evidence
117 Beau Brittain swore an affidavit on 30 September 2014. He is a trained mechanic, being fully qualified in August 2012.
118 Beau had lived with the plaintiff for many years prior to him opening the business in February 2012 but from time to time lived separately.
119 Beau was aware of the plaintiff’s spinal injuries and being unable to work from 2008.
120 In late 2012, they discussed purchasing a Midas franchise where Beau was working as an apprentice mechanic. The plaintiff was anxious Beau obtain some work and that he provide work to give him a chance. It was decided, rather than purchasing a Midas franchise, the plaintiff start his own business which happened in February 2012 and Beau started working for him about three weeks later. A qualified mechanic, Darrel Sabbarre, worked there, as Beau had not finished his apprenticeship.
121 In the business, Beau is responsible for all workshop matters including work on vehicles, with Darrel quoting and invoicing. He carries out the principal role in promoting the business, including pamphlet drops and is involved in decisions as to purchasing parts and sourcing them.
122 The plaintiff’s involvement in the business has decreased with the passage of time. His principal activity is doing accounts. He has limited computer skills and he relies upon accountants in relation to a lot of the preparation of accounts.
123 The plaintiff has some limited customer contact. He also does limited telephone calls because most of the calls are taken by Darrel or Beau.
124 If the business was to employ someone else to do the bookkeeping and associated banking the plaintiff undertakes, they would probably have to work four to five hours a week.
125 While there is a considerable amount of work that could be done around the business, in particular in a promotional way, the plaintiff appears not capable of doing it, although he is motivated for the business to succeed.
126 The plaintiff occasionally does some work, like washing a car. One of the promotional ideas was that the business return cars to customers washed and vacuumed. However, the plaintiff does only a very small percentage of car washing work.
127 The work experience student presently at the business does far more work than the plaintiff.
128 The business is not profitable and it is hoped with further promotion by Beau, that he would be able to make it profitable in the future. That would, however, only be by reason of the input from him. He did not see the plaintiff as having any capacity to increase his input which was very limited to date.
129 Beau received wages from the business until 30 June 2013. Thereafter, he has received drawing of $750 per week, equivalent to his previous wage.
130 The ability to improve the business is limited because of the poor area in which it is located and the plaintiff’s limited capacity.
131 Beau would certainly not employ anyone of the plaintiff’s capacity to work for him in the business. The plaintiff is there because of the family relationship and because he has financed the business. It is hoped one day the business would be successful for Beau and that is not something he could expect to occur in the very near future.
Treaters
132 The plaintiff first saw Mr Carey in May 2002 on referral from Dr Gost. The plaintiff told him that as a result of an incident at work in February 2002, he developed left central low back pain and left leg pain to the calf, which had been present ever since.
133 Mr Carey thought the plaintiff had developed left S1 sciatica as a result of the 2002 incident and he discussed various treatments, including surgery.
134 The plaintiff subsequently contacted Mr Carey and requested he go ahead with a laminectomy for the removal of the disc, which was undertaken on 11 January 2002. Mr Carey noted the plaintiff recovered well and uneventfully.
135 When Mr Carey last saw the plaintiff on 2 October 2002, he noted some significant improvement in his left leg and he was to start a gym program. Further review was organised but the plaintiff did not attend.
136 The plaintiff saw Mr Carey again in January 2009. The plaintiff then told him of his subsequent work history and injury whilst working for the defendant in 2008.
137 On re-examination, the diagnosis was aggravation of the lumbosacral spine initially caused by the 2002 incident but markedly aggravated by driving in 2008.
138 The plaintiff asked Mr Carey about surgical alternatives for his pain and as L4‑5 and above appeared satisfactory on his injuries and scan, Mr Carey suggested the possibility of a lumbar fusion for which the plaintiff sought approval for funding.
139 Mr Carey thought that the plaintiff did not have a back problem which would allow work of a physical nature – in brief, he considered the plaintiff has a light work back, such that he could work as a supervising bouncer and similar work at present.
140 Mr Carey thought the prognosis was for continued discomfort and disability into the foreseeable future without some intervention or without any significant risk of death, paralysis, etc.
141 Dr Loizou first saw the plaintiff in December 2004 on referral by his chiropractor.
142 In his last report of 23 August 2010, Dr Loizou noted the plaintiff, since December 2008, had remained in a state of very poor progress with quite severe and disabling low back pain. Conservative treatment had proved quite inadequate. Lumbar medial branch blocks were carried out in February and October 2009.
143 Dr Loizou noted in September 2009 it was obvious that the plaintiff was slipping into a state of quite severe depression with feelings of desperation, tearfulness, thoughts of self harm and others, and he referred him to a psychiatrist for assessment and management.
144 As the nerve blocks tried on numerous occasions had failed to offer the plaintiff any relief, he was referred back to Mr Malham for consideration for surgery which was carried out on 11 June 2010.
145 Dr Loizou noted the plaintiff’s response had so far been most encouraging and when seen on 21 July 2010, he reported he was feeling a lot better and looking a lot happier in himself. Nevertheless, at that stage, it was possibly deluded and a bit too early to prognosticate with confidence.
146 Mr Malham last reported on 13 December 2010, having seen the plaintiff on 8 December 2010, six months following the fusion, noting he was making very good progress.
147 Mr Malham noted that an updated post-operative CT scan, now six months post-operatively, performed on 8 December 2010, confirmed solid interbody fusion with no neural compression or complication.
148 Mr Malham noted the plaintiff was troubled by bilateral meralgia paresthetica from compression of the lateral cutaneous nerves of the thigh in the lower third of inguinal ligament. He thought the plaintiff would greatly benefit from a supervised gym program for core stability and muscle strengthening and weight reduction.
The Plaintiff’s medico‑legal evidence
149 Mr Stephen Doig, orthopaedic surgeon, examined the plaintiff in May 2007 and December 2008, before the fusion.
150 Mr Doig thought the mechanism of injury that the plaintiff described was quite consistent with a work injury. He considered that work had been a significant contributing factor to the plaintiff’s current situation.
151 Mr Doig diagnosed recurrent left L5-S1 disc prolapse with ongoing pain and dysfunction in the back.
152 Mr Doig noted there was a further disc prolapse and the plaintiff had been further investigated as to future treatment. Because of his ongoing pain and discomfort, Mr Doig thought it certainly possible the plaintiff would in fact need further surgery in the form a recurrent discectomy, possibly including an L5‑S1 fusion.
153 Mr Brownbill, consultant neurosurgeon, examined the plaintiff on behalf of the defendant in August 2009.
154 The plaintiff told him of the 2002 injury and subsequent surgery. He also told him of the incident with the truck whilst working with the defendant.
155 On examination, the plaintiff described constant lower back pain fluctuating in severity, noting that medial blocks had been suggested. There was left leg pain extending down the back of the thigh and calf to the foot, present most of the time. Examination showed a non-uniform restriction of thoracolumbar spinal movements and absence of the left ankle jerk.
156 Mr Brownbill noted the previous laminectomy and that recent MRI scanning had shown the presence of recurrent disc prolapse at L5-S1 with S1 nerve root compression. He thought, on probability, the plaintiff suffered aggravation of L5-S1 disc derangement, resulting in recurrent disc prolapse.
157 The plaintiff described ongoing left leg pain, and radiological investigation demonstrated recurrent left sided disc prolapse at L5-S1.
158 Mr Brownbill noted that there was a body of spinal surgeons who would advocate decompression by further discectomy surgery, with likely associated fusion. He thought a trial of medial blocks was appropriate.
159 Mr Brownbill thought the plaintiff should avoid activities involving heavy lifting, forced spinal mobility, repeated bending or prolonged standing or sitting, and he was not capable of his pre-injury duties.
160 Mr Brownbill noted the plaintiff’s demeanour and his responses did not indicate the presence of functional overlay, exaggeration or psychosomatic factors.
161 Mr Brownbill thought the plaintiff did not have a current work capacity and was not fit for pre-injury employment. He also was not fit for suitable employment. He considered the prognosis was not certain and the plaintiff’s ability to return to work in the future would depend upon his response to ongoing treatment.
162 Dr Farnbach, psychiatrist, examined the plaintiff in September 2010.
163 The plaintiff told Dr Farnbach that he hated school, although he said that he did well academically and left after Year 8. He had had no post secondary training. He had numerous jobs, all in the transport industry or almost all as a driver. He was sacked from about 80 per cent of those jobs for being outspoken or aggressive. He had also worked as a nightclub crowd controller.
164 Dr Farnbach noted that since the said date, the plaintiff had chronic pain now in his legs and feet and was unable to work in his former occupation and had restrictions in his activities of daily living and recreational and social activities.
165 On examination, the plaintiff at times displayed mild anger when speaking of various agencies and people he had been dealing with. He described himself as “macho” and had some pride in his strong physique and his former ability to defend himself and his social and romantic success.
166 Dr Farnbach diagnosed a Major Depressive Disorder of mild severity which began soon after the injury. He thought the plaintiff’s psychiatric condition had needed to be treated.
167 Mr King saw the plaintiff once after the fusion, having seen him earlier twice in 2008.
168 On 3 August 2010, the plaintiff’s main worry continued to be constant aching in the low back with radiation into the left buttock and thigh and more recently intermittently into the right.
169 Mr King noted the fusion had produced some mild but definite improvement with a 20 per cent lessening of pain.
170 Mr King’s overall impression, however, was that at forty-eight, the plaintiff was still chronically and quite severely disabled by chronic back and leg pain as a result of the injuries to the lumbar discs and associated ligamentous structures occurring in the work accident and he was disabled to a lesser extent by chronic neck pain and stiffness.
171 Although the plaintiff’s back pain had improved to some extent by the fusion, the overall impression was the plaintiff was chronically and quite severely disabled.
172 Mr King thought the plaintiff was permanently unfit to go back to heavy unrestricted work as a truck driver in the foreseeable future and his light supervisory work as a bouncer no longer seemed to be available to him.
173 Mr King thought it possible the plaintiff could manage suitable lighter work that did not involve bending or lifting but it was going to be difficult for him to find such an occupation. He considered the plaintiff was permanently unfit to work as a long distance or short distance truck driver. Mr King could find no evidence of any sort of significant psychological overlay.
174 Mr Simm, orthopaedic surgeon, first examined the plaintiff on 17 January 2012.
175 The plaintiff told him of the 2002 injury and subsequent surgery, the neck injury in 2004 and discectomy in November 2005 and the incident and the problems driving with the defendant in 2008.
176 The plaintiff told Mr Simm that his pain was considerably better after the fusion. On a visual pain scale, his pain was 5 out of 10 before that surgery and since had ranged between 5 and 8 out of 10, occasionally going off the scale.
177 The plaintiff told Mr Simm that until two weeks ago he was living in a rented house at Spotswood and had to do his own shopping, cooking and cleaning and paid for gardening services. The plaintiff told him he was independent with activities of daily living and now did not have to do the housework because he had moved back to live with his mother.
178 When asked about return to work, the plaintiff indicated it was unlikely he could go back to truck driving because he could not sit and drive for prolonged periods and he could not do any physical work such as bending and lifting. The plaintiff said that theoretically, he might be able to go back to work where he could stand and move around and perform light work, but he could not put forward any specific suggestions.
179 Mr Simm diagnosed progressive L5-S1 lumbar disc degeneration with symptoms first evident in 1994. He thought the degenerative changes predisposed the plaintiff to the lumbar disc prolapse which occurred in February 2002. The sequelae of the lumbar disc prolapse and the surgical treatment of that condition further accelerated degenerative changes in the following years.
180 Mr Simm noted there was epidemiological evidence that prolonged periods of truck driving were associated with an increased incidence of symptomatic degenerative lumbar disc pathology. Therefore, although the plaintiff’s condition was constitutional L5-S1 disc degeneration, factors arising out of employment had significantly influenced the clinical course of that condition.
181 Mr Simm noted the plaintiff’s chronic spinal pain was improved partially by the fusion but post operatively, despite what he understood to be a successful fusion, the plaintiff had continued to have a chronic adverse pain response.
182 Mr Simm noted the plaintiff’s back condition had had a major impact on domestic, social and recreational activities, with all activities undertaken in the presence of quite severe pain. The plaintiff had limited movement of the thoracolumbar spine, an inability to sustain static posture and to undertake physically demanding activities, a situation that was likely to persist indefinitely.
183 The plaintiff was re-examined on 30 July 2014.
184 Mr Simm noted the plaintiff had moved to Adelaide in 2012 and opened a car repair business. He was confined to a supervisory role in the business because of ongoing back and left lower limb symptoms.
185 Mr Simm noted the plaintiff’s condition had remained largely unchanged since the 2012 examination and, if anything, might be slightly worse.
186 The plaintiff told Mr Simm that when he moved to Adelaide in 2012 he wanted to “tough it out”. He only attended his general practitioner when required and had no physical therapy and bought over-the-counter analgesic medication.
187 The plaintiff told Mr Simm of constant lumbar back pain radiating to the left buttock and hip, down the anterolateral aspect of the left thigh to the knee.
188 The plaintiff told Mr Simm his back was stiff and he struggled to bend forwards to put on his footwear and cut his toenails. Prolonged stooping increased pain and he could not bend over an engine bay and work on a car.[59]
[59]Confirmed by the plaintiff at T53
189 The plaintiff moved to Adelaide to live near his son. The plaintiff then opened his car repair business. He lived alone on the business premises in two-bedroom accommodation. He spent weekends living with a friend.
190 The car repair business was run and managed by the plaintiff. He did not do any physical work. He was responsible for the bookwork. He employed his son and another employee, who were both qualified motor mechanics.
191 The plaintiff was able to drive and was independent with personal activities of daily living. His son did heavier household cleaning.
192 Mr Simm noted the plaintiff presented in a straightforward manner. Neurological examination of the left lower limb revealed some evidence of left S1 radiculopathy. Movements of the thoracolumbar spine were restricted and undertaken in a cautious and guarded manner.
193 Mr Simm thought the plaintiff had persistent painful dysfunction of the lower back from L5-S1 lumbar disc degeneration treated surgically. He had persistent symptoms of left-sided radicular pain extending to the lateral side of the left foot and there were clinical signs of left S1 radiculopathy. Despite the successful fusion, the plaintiff had continued to have chronic and disabling lower back pain and referred symptoms into his left lower limb.
194 Mr Simm thought the plaintiff was permanently incapacitated for pre-injury duties as a truck driver. He now had a very limited alternative capacity for employment. He would be confined to non-physical work which allowed flexibility with static postures. Considering the plaintiff’s age, education and past work experience, Mr Simm thought the plaintiff had very little realistic work capacity. He noted the plaintiff had opened his own car repair business, which he said had not been profitable and the future of the business seemed quite uncertain.
195 Dr Slesenger, occupational physician, examined the plaintiff in September 2014.
196 The plaintiff advised that he had little improvement as a result of the fusion.
197 On examination, the plaintiff described severe lower back pain with pain radiating to his left leg.
198 The plaintiff commenced work as a support for his son’s mechanical repair business. He lived alone above the shop and as a result, he was available to work all hours (the shop being open between 10.00am and 5.00pm). However, the plaintiff paces himself, as he was not able to work throughout the course of the whole working day.
199 The plaintiff told Dr Slesenger he is involved with some bookkeeping support including banking of cheques and paying suppliers by EFTPOS. He also does a moderate amount of marketing and assists with day-to-day activities of the business. He does not perform any of the mechanical work.
200 The plaintiff described himself as being easily agitated and having an aggressive personality. He had difficulty dealing with fools. Accordingly, he had never been able to retain employment in a managerial role.
201 On examination, there was severely restricted range of lumbar spinal movement. There was sensory loss over the lateral aspect of the whole of the left leg. Left ankle reflex was absent and the left knee reflex was reduced.
202 Dr Slesenger noted the plaintiff had undergone an L5-S1 interbody fusion for degenerative disc disease in the lumbosacral spine. He had subsequently developed a Chronic Pain Disorder and there was evidence of psychological impairment.
203 Dr Slesenger thought the plaintiff also described some unusual illness behaviour, in particular his approach to medication and his attitude towards support of his psychological impairment.
204 Dr Slesenger was satisfied that the work exposures were a plausible cause of the plaintiff’s lower back symptoms and that there was a temporal association. In his view, there was good evidence to support a causal link between employment and the plaintiff’s lumbar spinal symptoms.
205 Dr Slesenger noted, with regard to alternative employment, the plaintiff had limited experience outside truck driving. He was currently fifty and describing high levels of pain and had limited function. He also described a combative style of interaction that would preclude work in a supportive or managerial role within the truck driving industry. He was currently providing some support to his son’s business but did not describe that as being meaningful work.
206 Dr Slesenger thought the plaintiff had few transferable skills and his only qualification was a commercial truck licence.
207 In Dr Slesenger’s view, the plaintiff had capacity to work within the following restrictions – sitting and standing as required; two hours per day, three days a week; no pushing, pullying, carrying or lifting over 5 kilograms, and rest breaks as required.
208 Dr Slesenger considered the plaintiff was unlikely to find employment, outside a limited supportive role in a family business, where his variable symptoms, unpredictable attendance and combative personality style were likely to be accommodated.
209 Given the chronicity of his symptoms, Dr Slesenger thought that this would continue for at least two years and probably beyond.
Vocational evidence
210 Linton Young, occupational therapist, provided a vocational assessment of the plaintiff in January 2009.
211 Mr Young concluded at that stage that there was no occupation for which the plaintiff was likely to qualify that met the definition of suitable employment, and that that situation would continue indefinitely.
Claim documentation
212 The plaintiff submitted a Claim for Compensation on 19 June 2009.
213 It was noted that his average gross weekly earnings over three months was $18,000. He was being paid $36 an hour gross, or usually pre tax weekly earnings of $1,400 per a week with weekly overtime of fifteen hours.
Surveillance
214 It was admitted there was surveillance over seven days, during which 13 minutes of film was taken.
The Defendant’s medical evidence
215 Dr Brown, occupational physician, re-examined the plaintiff in April 2014, having previously seen him in December 2010.
216 Dr Brown was then given a history that, for the past two years, the plaintiff had operated a mechanical workshop in Adelaide with his son and another mechanic. The plaintiff lived on the premises and did administrative and clerical tasks full time. He did no hands-on mechanical work.
217 Dr Brown noted the plaintiff was able to do activities of daily living if he was careful but had particular difficulty with bending tasks. He noted the plaintiff continued to have low back pain but that was not severely disabling.
218 Dr Brown considered there was little relationship between the plaintiff’s low back condition and the alleged injury. He noted the radiological report of 26 September 2008 indicated there was new post-operative disc pathology in March 2006, well prior to the June incident.
219 Dr Brown thought there had been some improvement in the plaintiff’s back condition since the previous examination which fitted with the common clinical history of improvement of back pain over time. He was unable to detect any obvious functional component.
220 Dr Brown considered the plaintiff had a capacity for work not involving frequent bending or heavy lifting, noting that the plaintiff had been working satisfactorily doing manual tasks for the past couple of years.
221 Dr Brown thought in general, the plaintiff needed to avoid heavy lifting and frequent bending during work. In his view, there was no specific limit to the plaintiff’s lifting capacity provided he was able to keep his back straight, bend his knees and was not required to lift frequently throughout a shift. He thought the plaintiff had the capacity to perform repetitive work without heavy lifting and frequent bending. He had the capacity for appropriate duties on full-time hours.
222 Dr Brown considered the plaintiff had the capacity for pre-injury duties as a truck driver but not involving manual loading tasks. He had the capacity for suitable employment and had been working satisfactorily for the first couple of years.
223 Mr Ian Jones, orthopaedic surgeon, examined the plaintiff in April 2014.
224 The plaintiff told Mr Jones of the 2002 injury and the injury relevant to the current claim. He also told him of injections from Dr Verrills and the spinal fusion performed in 2010 by Mr Malham.
225 Mr Jones noted the plaintiff reported that gradually his requirement for analgesic medication was diminished. In spite of that, he had not returned to driving.
226 In October 2011, after a payout from his previous 2002 claim, the plaintiff moved to Adelaide and commenced a self-employed job in February 2012. The plaintiff reported that he managed a car repair business with his son (a mechanic) and another worker.
227 The plaintiff reported he only worked in a clerical capacity, having no licence to work as a motor mechanic but having extensive experience in motor vehicles. The plaintiff advised the business had not made a profit over the last two years but was on the cusp of being successful.
228 The plaintiff confirmed his back condition had improved since the fusion, with less back pain and more mobility. He described symptoms of constant pain in his back and left leg.
229 On examination, the left ankle jerk was absent. Lumbar movement was restricted. Sensory testing revealed a subjective loss of sensation to the skin over the whole of the left leg which did not correspond to any peripheral nerve or dermatome pattern.
230 Mr Jones thought the plaintiff presented with symptoms of lumbar back pain, stiffness with residual left-sided sciatic symptoms and signs consistent with an aggravated L5-S1 disc disruption. He was not able to detect any particular functional symptoms in the plaintiff’s presentation, noting the distribution of the paraesthesia affecting his left leg was not completely typical of the sciatic nerve injury.
231 Mr Jones considered the plaintiff had no capacity for physical work solely due to the effects of his physical complaint involving his lower back.
232 Mr Jones thought the plaintiff had no capacity to undertake work requiring repeated bending or lifting above 2 to 3 kilograms in weight. Heavy pulling or pushing would be outside his physical capacity. He would be capable of clerical employment where no high demands were placed on his back.
233 Mr Jones thought the plaintiff had no capacity to return to his pre-injury work. He noted the plaintiff was undertaking suitable employment at his self-employed car repair business but only in a supervisory capacity. Mr Jones concluded the plaintiff had a capacity to undertake the work he is performing at the current time.
234 Mr Jones was provided with reports from Mr Malham, the MRI scan of May 2010, the operation report of June 2010, Mr Simm’s report of January 2012 and Dr Brown’s report of April 2014.
235 In response to specific questions, Mr Jones noted the incident had been a minor contributing factor to the plaintiff’s previous lower back condition and probably led to a fusion of his lumbar spine possibly earlier than may have been expected. He would estimate 10 per cent of the plaintiff’s incapacity had been a result of the 2008 injury.
The Plaintiff’s taxation details
236 The BAS statement of the Brittain Family Trust for the first quarter of the 2013-2014 financial year set out total sales of $72,065 and non-capital purchases of $46,446. The total of salary, wages and other payments was $11,713.
237 In the second quarter BAS statement for that year, total sales were $69,058 and non-capital purchases, $44,842. The total of salary, wages and other payments was noted as $11,713.
238 The Brittain Family Trust taxation return of 2012-2013 set out a loss of $32,592. In 2011-2012, there was a loss of $65,583
239 The profit and loss of the business for 2012-2013 set out sales of $204,431 ($31,951 for 2011-2012). The gross profit from trading was $136,146 ($10,575 for 2011-2012). There was a $32,592 loss ($65,383 for 2011-2012).
240 In the 2012-2013 year, expenses totalled $186,747, of which $80,601 was wages. $27,720 was rent and outgoings; motor vehicle expenses of $8,371; light and power of $8,571and depreciation expenses of $20,935.
241 On his individual taxation return for the financial year 2012-2013, the plaintiff’s total income was $35.00. His income from the previous financial year was $4,799
Overview
242 Pain and suffering having been conceded, it is not disputed that the plaintiff suffered a compensable injury to his lumbar spine in the incident or that his lumbar spine condition has a substantial organic basis.”[60]
[60]T129
243 The plaintiff’s condition has been diagnosed as an aggravation of degenerative disc disease at L5-S1, leading to fusion.
Credit
244 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[61]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[61](2010) 31 VR 1 at paragraph [12]
245 Counsel for the defendant submitted that I should have some reservations about the plaintiff’s credit unless it was corroborated, given his manner and demeanour.[62] It was submitted the plaintiff’s testimony was unreliable.[63]
[62]T128
[63]T147
246 It was submitted the plaintiff was uncooperative and evasive in terms of his involvement in the business and that he was needlessly guarded and not candid.[64]
[64]T129
247 Although it was conceded the surveillance film was not a “knock-out punch”, it was submitted it was of some assistance to the defendant; firstly, the plaintiff was shown in work uniform and, secondly, he was shown washing cars – the latter provoking the concession that the plaintiff did some physical work.[65]
[65]T130
248 Further, it was submitted the plaintiff’s failure to tell Mr Simm in January 2012 that he was moving to Adelaide to start the business was a credit issue.[66]
[66]T131
249 Largely the submission in relation to credit was put on the basis the plaintiff had understated his role in the business and also that his pessimism as to the future of the business was self-serving.
250 However, as I indicated to counsel for the defendant during addresses, in my view, there was not a significant difference between the plaintiff’s affidavit evidence and his histories to doctors of his involvement in the business.
251 I found the plaintiff to be a credible witness who did not overstate the extent of his pain and restrictions.
252 Further, the film did not show a level of activity inconsistent with the plaintiff’s evidence of his pain and restriction. The surveillance did not show anything other than what the plaintiff said he could do.[67] Also, there was very limited film over a significant period of surveillance.
[67]T168
253 The plaintiff is highly motivated to work. In the past, on a number of occasions following major injury and surgery, he has returned to the workforce. In my view, there is no element of the plaintiff “playing the system”. [68]
[68]T166
254 I accept that the plaintiff is somewhat of a stoic who has tried to get on with his life as best he can in the face of significant pain and restriction. As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[69] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[69][2008] VSCA 260 at paragraph [4]
255 Further, there was no suggestion by any medical examiner of any embellishment or exaggeration on examination.
Loss of earning capacity
256 To obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s134AB(38)(e)(ii).
257 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
258 The former must be calculated by reference to the six-year period specified in s134AB(38)(f).
259 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
260 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
261 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein – Barwon Spinners Pty Ltd & Ors v Podolak.[70]
[70](supra) at paragraph [70]
262 I am therefore required to determine a “without injury” earnings figure.
263 Counsel for the plaintiff submitted that the pre-injury earnings of $1,400 set out on the Claim Form is the appropriate “without injury” earnings figure because that is what the defendant agreed to pay the plaintiff.[71] Further, the plaintiff was not in full-time employment in the financial year relied upon by the defendant.[72]
[71]T189
[72]T190
264 Counsel for the defendant submitted that the plaintiff’s earnings in 2007-2008 of $60,040 was the appropriate “without injury” earnings figure, of which $692.27 per week is 60 per cent.[73]
[73]T146
265 In my view, $1,400 per week, the amount the plaintiff was actually earning at the time of injury, is the figure which most fairly reflects his earning capacity but for injury. Sixty per cent thereof is $840.
Counsels’ submissions
266 Counsel for the defendant distinguished the present case from Hadley v Galzon Pty Ltd[74] and Drousiotis v Wingfoot Australia Partner Pty Ltd & Anor,[75] as it is not so much a “use of capital case”; it is really an “alternative occupation” case. It was submitted this application is different because it is about someone who has essentially retrained and alternatively they have had a residual skill set where they have redeployed those skills.[76]
[74](2014) VCC 651
[75](2014) VCC 221
[76]T156
267 However, counsel for the defendant did favour the approach taken by Judge Misso in Alter v Alcon Laboratories Australia Pty Ltd,[77] where his Honour took the gross amount income from personal exertion in s134AB 38(f) of the Act as meaning the gross income without deducting expenses incurred
[77][2008] VCC 713
268 It was submitted this was the correct approach in the present case, as the plaintiff has obtained benefits through the business which should be taken into account when looking at any claimed loss suffered.[78] However, no authority could be referred to in this regard and it was conceded that argument was a “bit academic” given the lack of financial records.[79]
[78]T154
[79]T159
269 Counsel for the plaintiff did not reply at length in relation to these matters.[80] Counsel did not propose to address the Court as to the law as to whether income from personal exertion involved gross or net income. Here, the plaintiff’s earnings are through a corporate structure which is a different situation, as Judge Misso said in Alter v Alcon Laboratories (Aust) Pty Ltd.[81] Those earnings at present are nil.[82]
[80]T187
[81]Supra
[82]T173
270 The primary submission by counsel for the defendant was that the plaintiff has a capacity for suitable employment in both his present position and also in alternative employment providing managerial administrative support for a small business of the kind he is presently engaged in.[83]
[83]T160
271 It was submitted this is really an alternative occupation case evidenced by the residual skills that have been demonstrated by the plaintiff insofar as his unique enthusiasm and knowledge of motor vehicles and the motor vehicle industry is concerned and providing the administrative support for a business in which he entirely invested his capital.[84]
[84]T127
272 It was submitted the plaintiff is the managing director of the business or calls himself that and he is well and truly in the driver’s seat running it, from the very important administrative side of things but also in terms of actually controlling it.[85] An extensive list of the tasks the plaintiff is capable of performing was set out in counsel’s written submissions.[86]
[85]T127
[86]See paragraph 22 of the defendant’s written submissions
273 It was submitted that the plaintiff had failed in his endeavour to persuade the Court on the balance of probabilities that he lacked sufficient capacity to engage in suitable employment.[87]
[87]T126
274 Further, it was suggested I should be concerned as to the plaintiff’s level of involvement in the business given what were described as his attempts to minimise his involvement and also his capacity for employment.
275 The plaintiff has a passion for the motor vehicle industry and is available to work all hours, as he told Dr Slesenger.[88] Further, the plaintiff himself had conceded to various doctors he could manage light work.[89]
[88]T134
[89]T131
276 However, in my view, the plaintiff has a minimal involvement in the actual running of the business. I do not accept he is particularly business savvy. His knowledge of administrative and financial matters is quite basic.[90]
[90]T137
277 I am satisfied that the plaintiff is doing his best in his current work, exercising his full capacity in suitable employment. Physical work is limited to washing and vacuuming cars occasionally as his son confirmed, and tidying up around the shop.[91] Clearly, the plaintiff does not do any mechanical work, as he is not qualified in this regard and there are two trained mechanics on site who perform this work and other administrative and customer service roles.
[91]T131
278 This situation has been corroborated by the plaintiff’s son, Beau, who confirmed the plaintiff’s involvement in the business is limited and has decreased with the passage of time. The plaintiff works about four hours per week on banking and the accounts, largely relying upon the accountants in this regard.
279 The plaintiff has limited customer contact and does limited phone work. Whilst he is motivated for the business to succeed, he appears incapable of assisting in this regard. As Beau pointed out, he certainly would not employ someone of the plaintiff’s physical capacity to work for him in the business. The plaintiff is only in the business, having set it up and financed it for him.
280 In my view, the plaintiff has not hidden anything about what he does in the business. Although he lives onsite, his involvement in the business is minimal, involving a few hours’ work per week.
281 I accept the plaintiff took on the running of the business because of the very limited employment options open to him with his back condition and work experience.
282 It was never seriously put to the plaintiff that he could work in alternative roles such as a spare parts salesman.[92] He does not have computer skills or relevant experience in clerical or administrative work and has only been educated to Year 8.
[92]T162
283 Whilst the plaintiff said that theoretically he might be able to go back to light work where he could move around, he could not put forward any specific suggestions in this regard.
284 I accept the plaintiff does not have the capacity to work in alternative employment on any sustained basis as due to his pain levels and physical restrictions, he would be an unreliable employee. He only attends the business frequently now because he lives onsite and potters around there during the day – a totally different situation to working for an employer where regular sustained attendance is required.
285 In addition to his significant physical restrictions, the plaintiff’s macho abrasiveness means that there is a range of employment for which he is not suited.[93]
[93]T167
286 Taking into account all these factors, I am satisfied the plaintiff does not have a capacity for suitable employment save for working a couple of hours per day on very light work. He is exercising his full capacity in the business at present.[94]
[94]T179
287 The consensus of medical opinion is that the plaintiff does not have a capacity for his pre-injury employment.[95] The Evidex report prior to the fusion surgery is consistent with that medical opinion.[96]
[95]T163
[96]T164
288 Medico-legal examiners who have seen the plaintiff this year have found he has a very limited, if any, capacity for suitable employment.
289 Taking into account factors set out in s5 of the Act, Mr Simm thought the plaintiff now had very little realistic work capacity. He noted the plaintiff had opened his own car repair business, which he said had not been profitable, and the future of the business seemed quite uncertain.
290 Dr Slesenger considered the plaintiff was unlikely to find employment outside a limited supportive role in a family business, where his variable symptoms, unpredictable attendance and combative personality style were likely to be accommodated. He thought the plaintiff had capacity to work only six hours per week within the following restrictions – sitting and standing as required; no pushing, pulling, carrying or lifting over 5 kilograms; and rest breaks as required.
291 Mr Jones considered the plaintiff had no capacity for physical work solely due to his back condition. He imposed a 2 to 3-kilogram lifting limit. He noted the plaintiff was undertaking suitable employment at his self-employed car repair business but only in a supervisory capacity. He concluded the plaintiff had a capacity to undertake the work he is performing at the current time.
292 Dr Brown thought the plaintiff had a greater capacity for work. He alone thought the plaintiff could return to pre-injury duties as a truck driver, but not involving manual loading tasks. He considered the plaintiff had a capacity for full time work not involving frequent bending or heavy lifting, noting that the plaintiff had been working satisfactorily doing manual tasks for the past couple of years.
293 The plaintiff’s only income post incident has been from the family trust. The business has suffered a loss in its first two years of operation – $32,000 in 2012-2013 and $65,000 the previous year. The plaintiff’s individual income was only $35 in 2013. In the last seven months, he has not received any drawings from the business.[97]
[97]T111
294 Having established that the plaintiff has suffered the requisite loss at present, he then has the task of satisfying the Court of what he is capable of earning in suitable employment, whether in the business or on the open market.
295 Counsel for the defendant submitted it could not be accepted any financial loss was permanent. It was submitted the plaintiff’s pessimism about the business’s future was self-serving.[98] The evidence of the business as not being profitable on an ongoing situation should be taken with a grain of salt. The plaintiff has the onus and he has not discharged it.[99]
[98]T128
[99]T135
296 It was submitted the lack of the last two BAS statements of the 2013-2014 financial year meant the plaintiff could not establish the requisite loss, particularly in the face of the increased profit in the first two quarters of the 2013-2014 financial year.
297 It was submitted the plaintiff could not benefit from his failure to provide these statements which he would have been expected to produce. That failure is a fatal blow to the plaintiff’s case, because he did not give any compelling or persuasive reason why that vital financial information was absent.
298 In response, counsel for the plaintiff submitted there can be no attack on the lack of provision of the two BAS statements if the plaintiff’s explanation in relation thereto is accepted.
299 In my view, it is understandable these documents have not yet been prepared given they relate to a very recent period and also given the stress the plaintiff has complained of due to the WorkCover process.
300 Counsel for the defendant submitted it could be inferred from the recent BAS statements that, if anything, the business income was going up.[100] The plaintiff himself had acknowledged it might be up about 20 per cent.[101] However, counsel for the defendant conceded that the plaintiff never gave evidence that the business was actually operating at a profit[102] although he agreed he told Mr Jones it was on the cusp of being successful.
[100]T139
[101]T140
[102]T143
301 It was submitted the business is not going as badly as the plaintiff alleged, evidenced by the fact the business continues to employ two motor mechanics and the business has recently purchased a Toyota Camry.[103]
[103]T142
302 Whilst there was an increase in sales in the first half of the 2013-2014 financial year, I am not satisfied that indicates the plaintiff would not suffer the requisite loss of 40 per cent in the future.
303 I accept that in the future, the issue is one of the plaintiff’s capacity and in the future, his earning capacity is not going to increase.[104]
[104]T181
304 I accept it would be speculating to say the business would be paying the plaintiff a figure in excess of $840 per week on an ongoing regular basis.[105] There is nothing that the plaintiff is doing in the business which shows any marketable capacity which would earn income.[106]
[105]T173
[106]T174
305 As counsel for the plaintiff submitted, the profitability of the business would not be dependent on the plaintiff’s increased capacity but on others doing more. If that was the case, and the mechanics were doing more work, they would have a greater entitlement to wages or drawings and the business expenses would be greater.[107]
[107]T174
306 If the plaintiff’s input caused an increase in the profitability of the business, that would be a different matter, because that would be demonstrating his earning capacity rather than investment of his capital.[108]
[108]T174
307 There is no evidence that the plaintiff’s capacity will improve and he will be able to contribute more significantly to the business. In fact, his son has confirmed his involvement has decreased with the passage of time.
308 Beau also confirmed the business is not profitable but it is hoped this situation will improve with further promotional work. However, the capacity to expand is limited by the location of the business and the plaintiff’s limited ability to contribute.
309 Counsel for the plaintiff submitted that doubling the income and non-capital purchases from the two BAS statements resulted in gross sales of $282,000 and non-capital purchases of $181,000. On that analysis, it was suggested there was already a loss despite the increase in income shown in the first two BAS statements.[109]
[109]T172
310 Without further explanation and in the absence of other financial details, I am not satisfied this is the case.
311 I accept, however, that periodic increases did not detract from the success of this application when the plaintiff’s position is considered globally.[110]
[110]T184
312 I am satisfied that the plaintiff has suffered a permanent loss, as his only income is via the trust from a fledgling business, in which he has a very minor involvement and the business has not been profitable.[111] It would be speculative to say that the plaintiff, with his minimal involvement in the business, was going to make significant money.[112]
[111]T185
[112]T186
313 I am satisfied the likelihood is that the plaintiff is not going to be capable of earning $840 per week into the future.[113] Accordingly, the plaintiff has suffered the requisite loss of earning capacity of 40 per cent.[114]
[113]T187
[114]T179
Rehabilitation
314 I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
315 In light of my findings as to the plaintiff’s impairment and his incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
316 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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