Caulfield v Broadspectrum (Australia) Pty Ltd
[2017] VCC 674
•2 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-00020
| BRENDAN GEORGE CAULFIELD | Plaintiff |
| v | |
| BROADSPECTRUM (AUSTRALIA) PTY LTD (ABN 11 093 114 553) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2017 | |
DATE OF JUDGMENT: | 2 June 2017 | |
CASE MAY BE CITED AS: | Caulfield v Broadspectrum (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 674 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the left and right upper limbs – pain and suffering – serious injury certification admitted by defendant – loss of earning capacity – agreed “without injury” earnings – issue is current earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hayhill v Hodge [2006] VSCA 194; Guppy v Victorian WorkCover Authority [2010] VSCA 164
Judgment: The application for a serious injury certificate for pain and suffering damages conceded by defendant. Application for leave for loss of earning capacity damages granted in respect of the bilateral arm impairment as a result of injury in the course of employment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr M Cvjeticanin | Maurice Blackburn Lawyers |
| For the Defendant | Mr B R McKenzie | Thomson Geer |
HIS HONOUR:
1 The plaintiff brings an application by way of Originating Motion dated 5 January 2017 seeking leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injury suffered by him out of and in the course of his employment with the defendant and in particular, on 4 July 2011.
2 The application made by the plaintiff relies on bilateral arm injuries as a result of a double crush injury that he received at work with the defendant. The plaintiff seeks leave to bring proceedings for pain and suffering and loss of earning capacity damages in respect of the physical injury to his arms.
3 At the commencement of this application, the defendant conceded that the plaintiff be certified for leave to bring proceedings for pain and suffering damages as a result of the injury to his arms. This proceeding continued on the issue of whether or not the plaintiff ought to be granted leave to bring proceedings for loss of earning capacity arising out of the impairment to his arms.
4 The following evidence was adduced during the hearing of this proceeding:
(i)The plaintiff gave evidence and was cross-examined;
(ii)The plaintiff tendered the following documents:
§Exhibit “A”, the Plaintiff’s Court Book (“PCB”), pages 1 to 13 inclusive, pages 14 to 52 inclusive and page 66;
(iii)The defendant tendered the following documents:
§Exhibit 1, the Defendants’ Court Book (“DCB”), pages 3 to 4 inclusive, pages 5 to 43 inclusive and pages 45 to 95 inclusive.
5 After the opening addresses by counsel, the following matters in this case were agreed between the parties:
(i) The plaintiff be granted the certificate in respect of leave for pain and suffering damages;
(ii) The parties agreed that 60 per cent of the “without injury” earnings figure was $65,312.00 at an annual rate, or $1,256.00 per week;
(iii) The defendant conceded that the plaintiff could not perform his previous employment as a maintenance fitter and turner as a result of the injury to his arms.
6 Mr McKenzie identified the real issue in this case was the appropriate level to be attributed to the plaintiff’s capacity for earnings in suitable employment after his injury.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in s134AB(37)(a) of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners (supra) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
10 The Defendant concedes serious injury contribution for pain and suffering damages.
Loss of earning capacity
11 In this application, the relevant sub-section of the Act is s134AB(38)(f)(i), which reads as follows:
“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, … .”
12 It is to be noted that the legislation speaks specifically of gross income expressed at an annual rate.
13 In the case of Hayhill v Hodge[3] at paragraph 9, the Court of Appeal referred to the assumption that the amount of income a taxpayer declared as his assessable income was not necessarily identical to his earning capacity expressed as an annual figure. In this case, the plaintiff had declared the following gross income for:
[3][2006] VSCA 194
(i) The year ending 30 June 2015, a gross income of $50,458.00
(ii) The year ending 30 June 2016, a gross income of $48,314.00
(iii) The year to date for 2016-2017, the plaintiff had earned a gross income of $44,994.00 to 7 May 2017.
14 The annualised income for the year ending 30 June 2017, based on the last known figures on a fortnightly basis before the Court would result in an estimated gross annual income of $52,000.
15 It was not suggested to the plaintiff, nor do I find, that he had not declared all of the income earned by him in the relevant time since his injury. The issue remaining in this case was whether or not the plaintiff could have earned, or was capable of earning, more income in suitable employment.
16 The plaintiff’s original injury occurred in July of 2011. The plaintiff had three separate surgeries to his neck and ulnar nerves on both arms.
17 The plaintiff was certified as fit to return to normal duties on 19 August 2013. The plaintiff worked in his capacity as a maintenance and fitter and turner on light duties.
18 At Easter time in 2014, the plaintiff accepted a voluntary redundancy package from his employer. The plaintiff states that he was not able to continue in his fitter and turner trade at that time due to the lack of dexterity in his hands.[4]
[4]PCB 7
19 The plaintiff obtained employment as a work safety officer at Melbourne Airport, Tullamarine, in July 2014.[5] The plaintiff has continued to work in that capacity as a work safety officer. He was promoted to a level 3 safety officer in June of 2015.
[5]PCB 8
20 The plaintiff’s employment as a work safety officer involves him driving around in an escort vehicle for contractors and trades people who attend at “the airside” of Melbourne Airport. The plaintiff describes this occupation as easy work.[6] The plaintiff is employed as a casual employee and gave evidence that 40 to 50 hours per week was a manageable workload for him.[7]
[6]Transcript (“T”) 35
[7]T36
21 The plaintiff was cross-examined at length about the number of hours he could work as a casual safety officer. The following evidence was given:
Q:“And is it the case that you take on whatever work is offered to you?---
A:Not always, no.
Q:Apart from, I should say, apart from blocking yourself out for golf on Saturdays and say Easter or some time at Christmas, in the rest of the year you put your hand up for work?---
A:No, not – no, not whatever is offered to me, no. I may get offered work and I – I’ve something on, so - - -
Q:Sure, so if it conflicts with a social engagement, you’ll say no?---
A: If it’s an important enough social engagement, yes.
Q:But otherwise you’ll take as much work as they offer you, is that right?---
A:Um, within reason, yeah.
Q:And what’s within reason?---
A:Well - - -
Q:It’s 40 to 50 hours, is that right?---
A:Ah, yeah.
Q:What about 55 hours a week?---
A:Um, I – I wouldn’t like – I couldn't work 55 hours a week, it’s – it’s actually too much to work over a long period of time. Every now and again and did it on those occasions to help the company out a little bit because they were stuck, couldn’t get anybody to do the particular shifts. I’ve told – I’ve told them I don't want to work like six hours, six days a week, it's too much sitting in a car, sitting down for long periods of time, so, um, 50 would be – 50 – when I say 40 to 50’s comfortable, 50 – I wouldn’t want to work any more than 50. I don’t really want to work any more than 40 but if they’ve had a – an operational need over the last few months where they've needed people to work longer hours.
Q:And you’ve done that?---
A:Yes, I have.”[8]
[8]T47, L11 – T48, L8
22 The plaintiff was re-examined on the issue of his hours per week. The evidence was as follows:
Q:“My learned friend has taken you through some of your wage records, and it would seem on three or four occasions you have done in excess of 50 hours per week. What was your desire to do? More than 50 hours per week?---
A:I didn’t – no, I don’t desire to work those long hours.
Q:To the extent that you’re aware of management, what’s their desire to have people doing more than 50 hours per week?---
A:They don’t desire people to be working more than that either.
Q:Why then did you do more than 50 hours a week on those occasions?---
A:On the two occasions I was asked if I could help them out. I knew they were struggling to get somebody to cover those shifts, and I agreed to do those shifts. At one – one occasion they rang me at 10.30 on a Saturday night, which means they’re struggling to get anybody. And asked me to work the next day, the Sunday, for 12 hours.”[9]
[9]T53, L22 – T54, L7
23 I accept the plaintiff has willingly taken on more hours of employment than 50 hours per week on an irregular basis. I accept his motivation for doing so was to assist his employer in a time of shortage of relevantly qualified people to undertake the safety work at Melbourne Airport. The benefit for him was that he was paid penalty rates for the days involving the weekend. On these occasions his weekly gross income increased markedly.
24 The evidence from the plaintiff was that in the future, the number of relevantly qualified safety officers would increase and necessarily mean that his employment in this capacity would drop to approximately 40 hours per week.[10] I accept that the work of a safety officer is suitable employment for the plaintiff. He was not challenged by the defendant in respect of it being a suitable occupation for him to undertake. I also accept that the expectation of the plaintiff that his work will reduce to approximately 40 hours per week in the future as a result of further people being trained to do his work, is a proper and reasonable conclusion.
[10]T55
25 The plaintiff, in the course of his evidence, explained the nature of his employment and what his work actually involved. His evidence was that he drove an escort vehicle for the contractors to be guided around the taxiways and areas inside the airport. His work involved travelling across taxiways where planes access runways from the airport terminals. The plaintiff then gave the following evidence:
Q:“Right, and not exactly when you’re driving across it, but planes go where you go?---
A:Yes, they do. We drive around the planes, very close to the planes and around the planes all day every day, and we have to be very careful in doing it, it's an interesting environment.
Q:I’m sure it is. Can I just ask, that involves you also then if you're in and under and around the planes, you’re also going around those baggage carts, or I'm going to call them that, those baggage trolleys- - -?---
A:Yes, yes.
Q:- - - the animal trolleys, the fuel tankers?---
A:Yes.
Q:And those machines that pull the planes out, whatever they’re called?---
A:Tugs.
Q: Tugs?---
A: Yeah.
Q: And you’re in amongst them all day?---
A:Yes, we’re dodging each other all day, it’s – it’s an interesting – interesting place, you have to have your wits about you out – out air side, you have to concentrate a lot while you’re driving around.”[11]
[11]T51, L6-23
26 The plaintiff was also asked about his training of level 2 to level 3 safety officers. The plaintiff gave the following evidence on what he was required to teach the safety officers:
Q:“What are the things that you have to teach them in particular, to go from level 2 to level 3? What are the matters of significance?---
A:The different – the main difference is the escorting component. So you have to teach them the hazards of the airport, driving around planes, the awareness factor. There’s a – there’s a massive emphasis on situational awareness. You must teach – teach them about situational awareness. It’s being aware of what’s going on around you, all around you all of the time.
Q:The situational awareness would mostly seem to be planes. They’d be easy to see, why do you need - - -?---
A:You’d be surprised how easy a big plane can sneak up on you. It’s – it’s happened to me, it’s surprising. They’re actually quite quiet when they’re taxiing around, and one can sneak – they move at quite a – a decent rate along the taxiways. We’ve got – the speed limits around the airport are very slow, so I could be driving around and – and I can look to my right and there’s a plane there that I didn’t realise was there. So you need to be aware of what’s happening.
Q:Is that ability to have situational awareness – is that important in the job?---
A:Absolutely. They stress – the Melbourne Airport stress that it is – they stress that in your training, that situational awareness is a very, very important part of the job.
Q:And to have that situational awareness, does it require concentration?---
A:It’s virtually what it is; to be concentrating on what’s happening.”[12]
[12]T52, L8 – T53, L4
27 It is clear from this evidence by the plaintiff that in order to perform his work he would need to be alert and aware of all matters and moving items around him. The proposition put by the defendant that he was capable of working 55 hours a week, week in week out, is not reasonable and would not be an expectation of his employers or people involved in the airport and airline business.
28 The plaintiff stated that his employers were not wanting people to work more than 50 hours per week and he did not want to work more than 50 hours per week.[13] I accept that it is reasonable for the plaintiff to limit his hours of work to 50 hours in the work that he performs at the airport.
[13]T53
29 The plaintiff was cross-examined at length about the weekly or fortnightly payslips he received between 30 September 2014 and 21 May 2017. Of the weekly payslips from Centastaff Recruitment between 30 September 2014 and 25 January 2016, there were a total of six weekly payslips that were identified as exceeding the weekly 60 per cent agreed figure for “without injury” earnings. The plaintiff was transferred to work in the same job, but a new employer of ISS Security Pty Ltd in or about January 2016. In the period between the fortnight ending 14 February 2016 to 21 May 2017, a period of some fifteen months, there were four fortnightly payment slips that were identified as exceeding the 60 per cent gross earnings of “without injury” earnings.
30 I accept that these payslips accurately reflect the payments made by the plaintiff’s employer to him as a result of his casual work as a safety officer at Melbourne Airport. He gave evidence, and I accept it, that he had obtained as many of the weekly and or fortnightly payslips as he was able to for the purpose of this application. The weekly and fortnightly payslips are consistent with his gross declared taxation figures referred to earlier in these Reasons. I accept that the plaintiff has not been able to provide all of his payslips for the period of his employment as a safety officer at Melbourne Airport. The payments accurately reflect the result of his work. The plaintiff’s hours of work fluctuate due to the casual nature of his employment, his unavailability for work over the Easter break and the lack of work over his working time at Christmas. It is the nature of casual employment that there are busy times and quiet times which means that the plaintiff can on occasion work less than 40 hours a week and on other occasions work as much as 60 hours a week.
31 The Parliament, at the time of passing this legislation, referred to the employment expressed as an annual gross figure. No doubt the reason for doing so was to take into account that employees who are attempting to return to work and are faced with casual employment and its attendant variations in income over short periods of time.
Analysis
32 I accept the plaintiff’s evidence that his gross income for the year ending 2015 is $50,458.00. I accept the plaintiff’s evidence that his income for the year ending 30 June 2016 is $48,314.00. I accept that as at 7 May 2017, the plaintiff’s gross income for the financial year to date was $44,994.00. The earnings made by the plaintiff in the year to date in 2017 are broadly consistent with an annualised figure for the year ending 30 June 2017 of $52,000.
33 The agreed 60 per cent “without injury” earnings figure is $65,300 per annum.
34 I conclude that the plaintiff has suffered a greater than 40 per cent loss of earning capacity as a result of his injury at his employment on 4 July 2011.
35 It is unnecessary to analyse the medical evidence in this case. The parties accepted that the plaintiff’s medical treatment, including surgery to his neck and left and right elbows, were necessary and appropriate medical treatment. The parties accept that the plaintiff could not return to his work as a maintenance fitter and turner for the long term.
36 Further, I accept that the plaintiff’s loss of earning capacity is permanent, in the sense that it is for the foreseeable future. I have had the advantage of seeing the plaintiff in the witness box. He is an honest and forthright witness. The plaintiff demonstrated, through his willingness to work for his new employer on a regular and on-call basis, including weekend work, that he is a keen and willing worker. The plaintiff is a person who has done the best he can possibly do to rehabilitate himself and re-enter into the workforce but, unfortunately for him, he suffers a greater than 40 per cent reduction in his “without injury” earning capacity.
37 In conclusion, I order that the plaintiff have leave to bring proceedings to recover damages for loss of earning capacity arising out of the injury to his arms in the course of his employment.
38 I will hear the parties on costs.
- - -
0
3
0