Castro v Eltrax Pty Ltd
[2012] VCC 1691
•27 June 2012
| IN THE COUNTY COURT OF VICTORIA | (Un) Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-11-02309
| DANNY CASTRO | Plaintiff |
| v | |
| ELTRAX PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 & 13 June 2012 | |
DATE OF JUDGMENT: | 27 June 2012 | |
CASE MAY BE CITED AS: | Castro v Eltrax Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1691 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation; Application for leave pursuant to s 134AB Accident Compensation Act 1985 paragraph (a) of serious injury definition; Claim for damages for both pain and suffering and loss of earnings; Injury to spine/back; Loss of earnings claim under sub-s.134AB(16)(b); whether meets loss of earning capacity criteria of sub-s.134AB(38). Application under both heads of damages successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.F. O’Dwyer with Mr G. Pierorazio | L.N. Christie & Co |
| For the Defendant | Mr P.R. Trigar | Lander & Rogers |
HIS HONOUR:
1 Mr Castro was born in 1989 and completed Year 10 at Hillcrest Secondary College in outer western Melbourne. He did not complete Year 11, working part-time at KFC. He then commenced work as an apprentice carpenter with defendant, Eltrax Pty Ltd.
2 On 30 April 2009 he was working on a building site in South Yarra constructing form work for a three level underground car park associated with a supermarket to be built above. He said:
“I was assisting to erect the form work. This involved fitting and fixing steel heavy stanchions which would support timber handrails. It was an awkward and heavy system of work. The steel stanchions weighed about 18 to 20 kg. I was standing on planks approximately 1.5 metres above the ground. A co-worker, Val Cappelletti, was standing on the ground and was passing the steel stanchions to me. I was standing in an awkward position and had to bend over as he was passing them up to me and I had to lift them up onto planks where I was standing. He had passed me around 7 or 8 of the stanchions before the injury occurred. It was in the course of pulling up a stanchion when I felt a sharp pain in my back and down my left leg. I continued to work but could feel the pain whenever I had to twist or lift.”
3 He said that when he tried to get up to go to the toilet during his sleep that night, “My legs just gave way.” At 6:00 am he tried to get out of bed, “but again my legs just gave way.”
4 He was taken to the Emergency Department of St Vincent’s Hospital, kept for observation, and discharged. He continued to experience pain. He consulted Dr Nicolaai at the “Modern Medical Clinic” in Caroline Springs. A CT scan was carried out which revealed “Herniation/Sequestration on the left side of my L5/S1 disc.” He undertook physiotherapy. He was then referred to orthopaedic surgeon Mr Roy Carey. An MRI taken on 29 September 2009 which included the following findings:
“At L4/5 level, a moderate central canal stenosis is seen secondary to posterior disc bulge/posterior osteophytes formation, slight hypertrophy of the ligamental flavum predominantly.
At L5/S1 level, a mild to moderate central canal stenosis is also seen secondary to central and left paracentral disc bulge, associated with posterior of the traversing S1 nerve roots particularly on the left side.
At L3/4 level, a mild central canal stenosis is seen secondary to slight posterior disc bulge predominantly. A mild bilateral L5/S1 foraminal stenosis are [sic] seen with no significant nerve root impingement identified. No further significant central canal or foraminal stenosis is seen. No pars defect or abnormal paraspinal soft tissue mass lesion is demonstrated.”
5 He was unable to return to his pre-accident duties. Mr Carey discussed the possibility of surgical intervention though he found Mr Castro resistant to such a suggestion.
6 He returned to work at Eltrax but on modified duties. His hours of work were 7:00 am to 1:30 pm which also included certain time off. According to an affidavit which he swore in the proceeding, the “tasks given … were trivial and degrading.”
7 By 31 August 2011, his entitlement to periodic Workcover payments was near its end. The foreman advised him that there was no more work for him but further work might be forthcoming in the future. Ultimately, none was though according to Mr Castro he followed the matter up by telephone “on numerous occasions.” He said he was “disregarded and ignored.” He was furnished with a “separation certificate” on 26 October 2011.
8 Mr Castro said he has made numerous attempts to obtain alternative employment. He is severely restricted in what he can do physically. He had not completed his apprenticeship when his injury occurred. Following his injury, he was not in a position to complete the practical work components of the apprenticeship. He said in those circumstances, he was precluded from completing the theoretical units in the apprenticeship course at the Kangan/Batman TAFE College. This was disputed by the defendant. At any rate, he did not complete those units. He did, ultimately however, take study for a “Certificate IV” qualification conducted by the Housing Industry Association at Jolimont. There were no final examinations to sit but he was regarded as having satisfied the requirements. He had previously investigated a two year course leading to Diploma in Building and Construction. He said the Workcover insurer declined to approve payment of the fee.
9 He said his present condition entailed:
“Constant back pain, which radiates into my left leg. I continue to suffer from twitching in my left calf. In addition to this, in my right middle toe I feel as though a needle is poking through with the pain travelling up my right leg. I find that my pain is aggravated by prolonged standing and prolonged walking, together with excessive bending or lifting. I find sitting however a lot more bearable. I have trouble sleeping. I am usually woken by the pain and I have to find a more comfortable position.”
10 He continues to be treated by a Dr Zammit. He practises at the same clinic as Dr Nicolaai. Dr Nicolaai has left that clinic now. He said that his medication includes Panadeine Forte and Panamax, though the Panadeine Forte gives him stomach upsets. He said he applies aloe vera gel to his back and takes magnesium tablets, fish oil tablets and glucosamine capsules. He also seeks assistance from psychologist, Mr Michael Tomek.
11 He said he has had to dispose of his manual shift motor vehicle and replace it with an automatic because use of the clutch with his left leg caused pain.
12 Mr Castro continues to remain unemployed.
13 Mr Castro has also completed a “test and tag course”, which entails carrying out tests of electrical systems. He finds the physical demands of this occupation impossible to comply with because of the bending involved. He and a 17 year old nephew have commenced a “test and tag” business which has had a couple of customers and one further customer during the course of an adjournment of the hearing before me. The amounts earned are minimal. Mr Castro says that he relies on his nephew to undertake the physical elements of the work involving bending. He carries out the clerical functions creating invoices and the like.
14 Mr Castro seeks leave to bring a damages claim against his employer pursuant to s.134AB(16)(b). He relies on paragraph (a) of the definition of serious injury.
Legal consideration
15 The Accident Compensation Act 1985 removes the ability of an employee injured at work simply to bring a damages claim against his employer. Section 134AB(16) states as follows:
“(16)If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless—
(a) the Authority or self-insurer—
(i)is satisfied that the injury is a serious injury; and
(ii) issues to the worker a certificate in writing consenting to the bringing of the proceedings; or
(b)a court, other than the Magistrates' Court, on the application of the worker made within 30 days after the worker received advice under subsection (7) or, with the consent of the Authority under subsection (20), after that period, gives leave to bring the proceedings.”
16 Such leave will only be granted if it is demonstrated that the plaintiff has suffered a serious injury. That phrase is defined as follows:
(37) In this section—
— serious injury means—
(a)permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.
17 In this proceeding the plaintiff relies on paragraph (a) only of the definition of serious injury. Sub-section 38 makes important and codifying provisions as to the determination of whether a plaintiff has suffered a serious injury within the definition. It provides inter alia as follows:
“(38)For the purposes of the assessment of serious injury in accordance with subsections (16) and (19)—
(a) the following definitions apply—
foetus has the same meaning as in section 98C(5);
income from personal exertion has the same meaning as in section 6(2) of the Transport Accident Act 1986;
(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
(d)a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, s. 134ABPart IV—Payment of Compensation Accident Compensation Act 1985 No. 10191 of 1985 501 fairly described as being more than serious to the extent of being severe;
(e)where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), the Authority or self-insurer shall not grant a certificate under subsection (16)(a) and a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i) at the date of a decision under subsection (16)(a) or at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii) the worker (including a worker referred to in section 5A(7) or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;
(f) for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i)the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)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 during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
(h) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(j)the assessment of serious injury shall be made at the time that the application is heard by the court, unless sections 134ABAA and 135BBA apply;
…”
18 It will be seen that the definition of income from personal exertion is of some significance and the definition appearing in s.6(2) of the Transport Accident Act 1986 is incorporated by reference. That definition is inter alia as follows:
“(2) In this section—
earnings means such amount as, in the opinion of the Commission, the person concerned would have received by way of income from personal exertion but for the transport accident;
income from personal exertion in relation to a person means—
(a) the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and
…”
19 Mr P O’Dwyer SC who appeared with Mr G Pierorazio of counsel for the plaintiff drew attention to the fact that Mr Castro was 22 at the time of his injury. A special and differential provision was made relative to the fact that Mr Castro was 22 at the time of the injury and therefore dealt with by paragraph (ii) of paragraph (e) of sub-s.38 and not paragraph (i). He noted that paragraph (f) making more specific provision as to the calculation of loss of earning capacity is expressed only to apply to paragraph (i) of the previous paragraph, that is, where the worker was 26 or older at the time of injury. He submitted further that, in so far as paragraph (g) of the sub-section referred to “gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred”, this paragraph was also inapplicable to him because it operated only in circumstances where paragraph (f) applied. Therefore, presumably, the issue of whether Mr Castro has suffered a loss of earning capacity “which will be productive of financial loss of 30 per centum or more”, under paragraph (e)(ii) was to be determined “at large” without regard to paragraph (g). As to paragraph (g), it is noted that it refers to the phrase “suitable employment” which is defined in s.5 of the Accident Compensation Act in the following terms:
“…
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker; and
(ii) the nature of the worker's pre-injury employment; and
(iii) the worker's age, education, skills and work experience; and
(iv) the worker's place of residence; and
(v)any plan or document prepared as part of the return to work planning process; and
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker; and
(b) regardless of whether—
(i) the work or the employment is available; and
(ii)the work or the employment is of a type or nature that is generally available in the employment market;
…”
20 Mr Trigar referred me to a judgment of her Honour Judge K L Bourke which proceeded on the footing that sub-s. (g) and therefore the definition of “suitable employment” in s.5, was properly to be considered in the case of injury to a worker under the age of 26. Bennetts v Central Highlands Group Training Incorporated; Alsrom Australia Limited v VWA [2009] VCC 525 [4] (vii).
21 Mr O’Dwyer, on behalf of the plaintiff, submitted that the word “allowances” in paragraph (a) of the definition of income from personal exertion in the Transport Accident Act and incorporated by reference into the Accident Compensation Act should be accorded the full width of its ordinary meaning. Therefore, in making any necessary comparisons between what remuneration Mr Castro is now, following his injury, capable of deriving, and what he might have derived absent that injury, any allowances which might have been paid, such as travel allowances, should be counted.
22 Mr Trigar, on behalf of the defendant employer, submitted, however, that “allowances” should be given a restricted meaning so as not to extend to sums of money such as travel allowances which he said amounted to no more than a reimbursement of an expense incurred by a worker. A travel allowance of this type, he submitted, was no actual enlargement of the worker’s income; merely a reimbursement of an expense incurred.
Expert opinions
23 As previously noted, Mr Castro was referred to orthopaedic surgeon Roy Carey. Mr Carey reported to Mr Castro’s solicitors by letter dated 26 May 2010 that “Mr Castro had back and leg pain relating to a huge L5/S1 disc herniation/sequestration.” Mr Carey anticipated slow improvement though paradoxically he also observed that “over the last few months the injury seems to have stabilised.” In a report addressed to Mr Castro’s then treating general practitioner Dr Zammit, Dr Carey described a consultation that he had had with Mr Castro on that day. He observed “I don’t think there has ever been any doubt that he has been unfit to return to his normal heavy work, and even if he felt that he wanted to, it would be inadvisable.” He said “one would hope that commonsense will prevail and his insurer will fund his TAFE course for him.” This is presumably the two year Diploma course which the insurer declined to fund.
24 In a more recent report to the solicitors dated 24 April 2012, Mr Carey referred to “a left L5/S1 disc herniation producing back pain and left sciatica”. There were some minor degenerative changes of other levels which may have produced some contribution to the back discomfort but not to the sciatica. He said that clinical signs had improved and there was “less evidence of nerve root irritation now but still some signs of S1 radiculopathy.” The size of the herniation, he said “was less (on an MRI of 17 June 2010) than that on the first MRI scan of 30 September 2009, as is generally the case.”
25 Mr Carey observed that Mr Castro’s back pain has persisted though he has stopped work some time ago. He noted that Mr Castro was firmly against any surgical intervention and that since his sciatica “has settled to some degree”, Mr Carey would not now recommend surgery. The prescription of analgesia was, he said, a matter for treating general practitioner though Mr Carey himself advocated the use of “over the counter analgesic and anti-inflammatory medication from time to time rather than regular medications.” He advocated an active exercise program “rather than continued manual treatments, although chiropractic and other manual treatments from time to time for aggravations of pain has been allowed by his insurer in the past.”
26 His present situation, said Mr Carey, would persist into the foreseeable future “although I would not necessarily say that it is ‘permanent’”. Again, paradoxically, he observed that the injuries were “now stable”. Mr Carey said that Mr Castro was not able to return to his pre-injury employment of an apprentice carpenter though there was no medical reason for him not returning to “appropriate alternative duties.” The letter enclosed a report on the 17 June MRI which expressed the following conclusion:
“Left paracentral disc extrusion and prolapse L5-S1 impinging on left S1 nerve root.
Slightly smaller broad disc bulge more prominent to the right L4-5 contacting both L5 nerve roots.”
27 Mr John F O’Brien, orthopaedic surgeon, assessed Mr Castro for his solicitors for medico-legal purposes. He said “Given the somewhat prolonged nature of this patient’s symptoms one would be guarded in relation to the long term prognosis.” He said that Mr Castro presented “with moderate disability.” He believed that for physical reasons Mr Castro is “quite incapable” of returning to his pre-injury work, and “would not cope with any unrestricted employment particularly that which involved any manual labour.” He was not totally incapacitated. Mr O’Brien hoped he could return to the workforce “to undertake light duties of a supervisory nature which I think would be compatible with the patient’s ongoing disc pathology.”
28 Mr O’Brien observed that Mr Castro’s “clinical condition now appears stable” and therefore his impairment level was permanent. Mr O’Brien re-examined Mr Castro on 9 May 2012 reaching similar conclusions. He said “The patient remains clearly motivated to re-enter the workforce, but is unable to find appropriate modified duties, particularly in relationship to the construction industry, where he continually hopes to find suitable employment. I would suggest this would only be possible if light duties such as that of a supervisor could be found”.
29 Treating general practitioner Dr Zammit wrote to Mr Castro’s solicitor in a letter dated 12 October 2011, responding to certain queries. He said that Mr Castro would not be fit to undertake work which his apprenticeship naturally led onto viz carpentry, “So far he has not been able to procure a position in an area where he can work full time. Currently with his reduced capacity he is only able to work part time and his employer is having difficulty finding enough work to do to keep him employed for the restrictive hours he is doing. In view of this it is likely that he will continue to work only part time and in a low level income job.”
30 Mr Zammit said that Mr Castro might be able to earn more money with “the right job and the right qualifications.”
31 On 11 August 2009 – that is, only a few months after his injury – Mr Castro was assessed by Dr Michael Bloom, occupational physician, as part of the WorkCover process. Dr Bloom said it was hoped that Mr Castro would “make a good recovery but ... will be left with some residual impairment as a result of his injury.” He said that in the medium to long term he would “remain vulnerable to further injury due to the nature of the underlying condition.”
32 Mr Castro was then assessed by Dr Dominic Yong on 8 April 2010. Dr Yong is a specialist occupational physician. Dr Yong said:
“Although Mr Castro is unable to return to his work as an apprentice carpenter, Mr Castro has a current capacity for work. He has a current capacity to perform tasks within the following restrictions:
· Avoid repeated bending and twisting of the back;
· Avoid firm pushing and pulling;
· Vary posture regularly between sitting, standing and walking;
· Avoid lifting more than 5 kg on a repeated basis.”
33 Dr Yong provided a supplementary report dated 10 May 2010 based on an NES vocational assessment report by an organisation known as ‘WorkStreams’. The occupational report identified the following as possible jobs for Mr Castro:
· Sales representative (building and plumbing supplies);
· Enquiry clerk;
· Surveyor’s assistant;
· Stock clerk;
· Product examiner;
· Project builder.
34 Dr Yong noted these proposed employments and said “I believe these employment options comply with the restrictions and therefore are reasonable.”
35 Dr Yong conducted his most recent assessment on 3 April this year. Dr Yong referred again to the various employment options mentioned previously, and added:
“Lastly, he is able to do work as an estimator or a building surveyor, which he now qualified to do so. These tasks should comply with the restrictions.”
36 He was asked whether there were any “non-organic” components in Mr Castro’s presentation, and he responded “There are no non-organic components”. He said there were no “Waddell’s signs”.
37 Again as part of the WorkCover regime, Mr Castro was assessed by Robert Wilks, clinical psychologist, on 24 May 2010. Mr Wilks reported “Mr Castro is a hard-working non-academic young man, who unfortunately hurt his back in April 2009 and has since been off work.” He diagnosed an adjustment disorder with depressed mood deriving from frustration as to no longer being active and fears about the future.
38 Mr Castro was also assessed by Dr Norman R. Rose, psychiatrist. The doctor observed:
“In accordance with the mildness of the expressed psychiatric symptoms, there were no real objective signs of mental illness.”
39 He noted that Mr Castro had become depressed as a result of his pain and restrictions, observing:
“He has been mildly depressed but he is not taking any medication for his depression. He has had psychological treatment. I understand that he still sees his psychologist every two weeks which he says helps a little.”
40 The doctor diagnosed Mr Castro as suffering “a mild depressive reaction to his chronic pain and physical injury.” He offered therefore the same diagnosis as Mr Wilks, “adjustment disorder with depressed mood”.
41 On 27 October 2010 Mr Castro attended Mr Clive Jones, orthopaedic surgeon, for assessment again as part of the WorkCover regime. Mr Jones carried out an assessment in accordance with the fourth edition of the AMA Guides. He found “This is not a total loss injury.” He made this observation with reference to ss.98E and 98C of the Accident Compensation Act 1985. Mr Jones said that Mr Castro’s condition “appears to be stable at this point in time.”
42 On 18 April 2011 Mr Castro attended Dr Simon G. Kennedy, a clinical and forensic psychologist, for an assessment in accordance with the psychiatric diagnostic manual DSM-IV. His diagnosis was “past Adjustment Disorder with mixed anxiety and depressed mood (resolved). Some anxiety and depression symptoms”.
43 By letter dated 17 May 2011 Mr David Barton, consultant occupational physician, reported to the WorkCover agent relative to an assessment for the purposes of reviewing Mr Castro’s medical and health services requirements and his ongoing entitlement to weekly payment. Mr Barton said:
“The workers describes the onset of symptoms just over two years ago that were subsequently diagnosed as being due to a left-sided disc prolapse. He still has some objective evidence of a radiculopathy with an absent left ankle reflex and slightly reduced muscle bulk in the left leg.”
44 He said there were in addition “some other features that do not fit with a straightforward physical problem and suggest that his condition has been complicated by the onset of a chronic pain syndrome.”
45 Mr Barton observed that some of his symptoms such as “twitching in both legs” and “shooting pain in the right leg” did not fit with the recognised pathology. He also observed a discrepancy between limited straight-leg raising and postures noted at other times and “increase in reported symptoms with axial loading” (this is presumably a reference to “Waddell’s signs”) and a generalised weakness through the leg.
Conclusions
Pain and suffering
46 Mr O’Dwyer submitted that there was no effective challenge by the defendant to a finding that with respect to pain and suffering issues Mr Castro’s condition met the requirements of paragraph (a) of the definition of serious injury in s.134AB(37) and (38) of the Accident Compensation Act 1985. Mr Trigar on behalf of the defendant did not, as I understood him, challenge that submission. Whether the defendant does leave this matter unchallenged or not, in my view the evidence clearly establishes the point, and Mr Castro suffers very significant pain and restrictions. The overwhelming balance of medical opinion is that his symptoms are entirely organically driven. The only dissenting voice here is from Dr Barton. In any event, Dr Barton does not say that the symptoms are not organically driven; merely that the presentation of them is “complicated” by non-organic issues; that is, that the pain and restrictions are greater than organic factors can explain. Mr Castro does suffer significant pain and restriction, and even if one were, contrary to the apparent opinion of other examiners, to say that some part of it was non-organically driven, what remains, in my view, clearly meets the criterion of a serious injury as to pain and suffering issues.
47 I turn therefore to the more complex issue of whether Mr Castro meets the loss of earning capacity criteria in s.134AB(38). This was the issue which consumed most of the time and most of the submissions in the hearing before me.
48 None of the experts suggest that Mr Castro is fit to return to his pre-accident work. The defendant’s consultant, WorkStreams, suggested the following nine possible alternative employment options:
(i) Project manager/supervisor building;
(ii) Construction estimator;
(iii) Building practitioner;
(iv) Safety inspector (testing and tagging);
(v) Sales representative (building and plumbing supplies);
(vi) Surveyor’s assistant;
(vii) Stock clerk;
(viii) Product examiner;
(ix) Enquiry clerk.
49 Mr O’Dwyer submitted that I should regard Mr Castro as “no scholar”. This is in accordance with his own evidence and it also accords with his lack of academic attainments, not having completed Year 12 at high school. Mr O’Dwyer submitted that, in so far as options 1 to 3 require academic or intellectual attainments and managerial experience, they were not realistic possibilities for his client. Suggestion 6 entailed working on rough ground and potentially extended walking. Possibility 4, though Mr Castro had undertaken a training course, was not a possibility because it entailed repeated bending. This left possibilities 5, 7, 8 and 9.
50 Mr Trigar relied on the opinion of WorkStreams that all of the nine possibilities were in fact open to Mr Castro.
51 In my view, Mr O’Dwyer’s submissions on these points are the more realistic. Having had the opportunity to observe Mr Castro, I concur in the description given by one of the examiners that he was “non-academic”. In histories given, he said that he turned to an apprenticeship in the building trade because he liked hands-on work rather than book learning.
52 Mr Castro is in a most unfortunate position, having sustained this injury so early in his employment career. One imagines that a worker who has completed his apprenticeship and worked in one of the building trades for an appreciable period of time, even without academic inclinations, will to a large extent be able to make good a lack of intellectual attainments or academic inclinations through wide experience in the industry. A person with this sort of established background would have some credibility in moving into the supervisory side of the building industry, as most of the possible occupations which Mr O’Dwyer’s submissions reject entail. A young man who has not even completed his apprenticeship lacks this body of experience and credibility in the employment market.
53 Another occupation that does not seem to be specifically mentioned in the nine options was that of “estimator”. Mr Castro applied for a large number of jobs as an estimator. The online advertisements for these positions were put in evidence before me. The job of estimator apparently entails judging, presumably for the purposes of quotation, tendering, and the like, what quantities of labour and materials are entailed in a project. The various advertisements universally required some expertise in things such as tendering, contract administration, and so forth; the sort of things which Mr Castro has neither background nor practical experience in to create the necessary “savvy” for these roles. I accept in light of the evidence as to his physical restrictions that the occupation of surveyor’s assistant and safety inspector, testing and tagging, are not realistically open.
54 Turning then to the earning capacity which the remaining employment possibilities offer, sales representative, according to the WorkStreams calculations, would offer a minimum and commencing salary of $44,500. Mr Trigar noted that this figure and the other WorkStreams figures are minimum and starting figures. On the other hand, Mr O’Dwyer submits that the available careers for Mr Castro do not offer the same potential for growth in remuneration due to additional experience which positions such as project manager or “building practitioner” would. I accept that submission. A stock clerk commands a minimum and commencing salary or wage of $40,922; a product examiner $42,328; an enquiry clerk $38,844.
55 Mr Trigar, on behalf of the defendant, relied on an affidavit by the payroll officer of his client, a Ms Owen. She said that the ordinary work hours at Eltrax were 8 hours a day Monday to Friday, and 6 to 7 hours a day on a Saturday. She rejected a contention in the plaintiff’s material that the ordinary work week would be 56 hours. Ms Owen produced anonymised pay records in the form of a “PAYG certificate”, what under a previous regime was known as a “group certificate”, for both workers. The average of their remuneration was $78,611 exclusive of any allowances. The remuneration was increased some 5 per cent since the relevant income year. According to Mr O’Dwyer’s calculation that would yield an average of $82,541. I did not understand those figures to be challenged by Mr Trigar, based as they were on the defendant’s material. Mr O’Dwyer said that 60 per cent of that level of earnings was $49,524.93. None of the possible alternative employment opportunities referred to reached that level. Therefore, according to the submissions of Mr O’Dwyer and Mr Pierorazio the loss of earning capacity component of the plaintiff’s serious injury case was made out: section 134AB(38)(e)(ii).
56 I accept that contention. On those findings of fact, it is unnecessary for me to resolve either of the interesting and difficult issues raised by Mr O’Dwyer, namely the purport in this context of the word “allowances” in the definition of “income from personal exertion” incorporated by reference from the Transport Accident Act, and the application in these circumstances of paragraphs (g) and (h), s.134AB of the Accident Compensation Act 1985.
57 For the avoidance of doubt, I find that in terms of the definition of `suitable employment’ in the Accident Compensation Act 1985, s.5, the several low-paying operations are suitable employment for this worker, and the more highly paid occupations identified by WorkStreams and the occupation of “estimator” are not.
58 The evidence of the various examiners is that Mr Castro’s injury is “stable”. It has persisted now for years and therefore meets the “longstanding” criterion in the definition of `serious injury’.
59 The plaintiff’s application for leave to bring a damages proceeding succeeds both with respect to pain and suffering and loss of earning capacity elements.
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