Collins v Australian Miling Group Pty Ltd
[2020] VCC 1103
•27 July 2020
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-01275
| DANIEL JAMES COLLINS | Plaintiff |
| v | |
| AUSTRALIAN MILLING GROUP PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Warrnambool (via Zoom hearing) | |
DATE OF HEARING: | 21 July 2020 | |
DATE OF JUDGMENT: | 27 July 2020 | |
CASE MAY BE CITED AS: | Collins v Australian Miling Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1103 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – crush injury to non-dominant left hand and wrist – pain and suffering consequences conceded – assessment of “without injury” earning capacity – assessment of present earning capacity in suitable employment – whether 40 per cent loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Roleff v Chubb Insurance Company of Australia Pty Ltd [2011] VSCA 2; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
Judgment:Application as to pain and suffering conceded – leave granted in relation to loss of earning capacity.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett QC with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr A D Clements QC with Ms F A L Ryan | Thomson Geer |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Collins, suffered a significant crushing injury to his left hand and wrist in the course of his work with the defendant on 13 October 2015. The injury was a degloving injury and resulted in multiple comminuted fractures. He required surgery on three occasions, and a period of rehabilitation.
2 For a number of years before the injury, Mr Collins worked as a truck driver, although was made redundant in 2014. He commenced work with the defendant less than a week before the injury. He was employed as a production worker at a grain packing facility near Horsham.
3 Mr Collins was off work for about twelve months after the injury and returned in October 2016, initially working two hours per day. Within three months, he built up to full-time hours. The work was light, in the nature of office administrative duties.
4 Again, Mr Collins was made redundant on 13 April 2018 after a downturn in the defendant’s production. He has not returned to any form of employment since, although has applied for a number of jobs.
5 Mr Clements, for the defendant, conceded the pain and suffering consequences which the plaintiff suffered met the statutory test. The application was contested as to loss of earning capacity only.
6 This is a serious injury application. The body function said to be lost or impaired is the left hand and wrist.
7 The issues in the application are confined and may be summarised as follows:
· What was the plaintiff’s earning capacity (expressed as gross income) during that part of the three-year period before and three-year period after injury, as most fairly reflected his earning capacity (“without injury” earnings)?
· What is the plaintiff’s earning capacity (expressed as gross income) at the present time, and has the plaintiff suffered a 40 per cent loss of earning capacity as a result of the injury?
What was the Plaintiff’s “without injury” earning capacity?
8 Mr Collins completed Year 12. He has qualifications and certificates, including a truck licence for B-Double trucks, a forklift licence and as a traffic controller. His reading and writing skills are good, and he has reasonable computer skills, including the use of Excel, Word and emailing
9 Mr Collins’ relevant employment history is:
· Night manager/storeman for Maxi Foods before 2006 – involved a range of duties, including taking deliveries, management of the storeroom and ordering stock.
· Supervisor – Australian Poker League – 2006-2008 – supervising poker games, preparing and setting up venues, assisting with tournaments, and data input.
· Labourer – Tumby Troughs – 2006-2008 – labouring to make concrete water troughs and like products.
· Truck driver – 2008-2014 – driving trucks throughout the Western District of Victoria, including to various mine sites.
· With the defendant from October 2015, initially as a labourer, and after injury as an office administrator until he was made redundant in April 2018.
10 Section 325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) provides that a worker’s loss of earning capacity is to be measured by comparing his gross income from personal exertion which he is either earning, or is capable of earning in suitable employment as at the date of hearing of this application, with the gross income he was earning, or was capable of earning from personal exertion during that part of the period of three years before and three years after injury “as most fairly reflects the worker’s earning capacity had the injury not occurred”.
11 There is a dispute between the parties as to Mr Collins’ “without injury” earning capacity. Mr Brett, for the plaintiff, submitted that the gross annual figure should be $87,544.00, which was Mr Collins’ gross earnings for the year ended June 2013, during which time he was working as a truck driver.[1] He further said that figure should be indexed by 3 per cent per annum as an annual increment to the year ended June 2018. That calculates to approximately $101,487.00, or $1,951.00 gross per week. Alternatively, says Mr Brett, I should accept as the plaintiff’s “without injury” earning capacity, the sum of $1,567.90 gross per week, which is said to be the November 2017 “average full-time adult ordinary time earnings”.
[1]Plaintiff’s Court Book (“PCB”) 90
12 Mr Clements, for the defendant, submits the appropriate “without injury” earnings figure should be $845.12 per week, the amount Mr Collins was earning working for the defendant as at the date of injury.[2] Further, said Mr Clements, there was no evidence before the Court as to what, if any, incremental wage rises there had been over the years from 2013 to 2018. While it may be permissible to allow an increment,[3] that increment ought to be based upon appropriate and reliable statistical evidence.
[2]PCB 10
[3]Roleff v Chubb Insurance Company of Australia Pty Ltd [2011] VSCA 21 at paragraph [31]
13 Mr Collins worked as a truck driver over a considerable period from 2008 to 2014. According to his affidavit, his earnings varied between $1,200 and $1,500 per week gross. In 2012 or 2013, he developed a heart condition, cardiomyopathy. According to the reports of his treating cardiologist, Dr Adam Gay,[4] he suffered a range of serious symptoms, particularly shortness of breath. However, it is clear from those reports Mr Collins made a reasonable recovery to the point where, by May 2014, Dr Gay was happy for him to return to truck driving, providing he satisfied VicRoads’ requirements.
[4]Defendant’s Court Book (“DCB”) 45-46
14 According to Mr Collins’ affidavit, the cardiomyopathy came under effective control with the medication he was prescribed.
15 Although Mr Collins had a period of eleven months or so off work before he commenced with the defendant in October 2015, I am satisfied that was not related to his cardiomyopathy, or any other condition such as to prevent him from truck driving. I accept Mr Collins’ evidence that he enjoyed driving trucks, it was a well-paid job and that it was his intention to own his own truck one day.[5]
[5]PCB 20
16 Section 325 of the Act requires consideration of the plaintiff’s “without injury” earning capacity, based upon gross income which he was capable of earning within the three years before and the three years after injury. In my view, his employment as a truck driver was employment which best reflected his earning capacity, absent injury. It was work he enjoyed, work he intended to return to and work which provided a good wage. His earnings in the year ended June 2013, when he was working as a truck driver, in my view, best reflects his earning capacity.
17 Mr Brett’s contention is that that sum ought to be incrementally increased each year over six or so years to the year ended June 2018, relying upon an increase of 3 per cent per annum. This presumably is to reflect increases in the cost of living in accordance with increases in the Consumer Price Index. I am not satisfied that is an appropriate means of calculating Mr Collins’ gross income, as reflects earning capacity, within the six-year window.
18 In many applications of this nature, the arithmetic calculation as to a 40 per cent loss of earning capacity, is an exercise requiring precision. Many cases are decided on a fine margin between before and after injury earning capacity. Such is the case in this application. It is not appropriate, in my view, to simply estimate a yearly increase without any appropriate statistical evidence or comparable wages to support it, in order to come to a higher wage figure. Statistical information from the relevant government authority or from a relevant employer is likely to be readily available and it should not be a matter for a court to accept an estimate without such evidence.[6] There may or may not have been increases in the wages paid to truck drivers over the relevant period. Mr Collins was working out of Country Victoria and in the end was made redundant, presumably because there was a downturn in available work, or insufficient work, for him to remain employed. In that scenario, it is no certain thing his wages would have increased incrementally each year.
[6]See further Roleff (supra) at paragraph [31] where it was said that whether there should be any incremental increase will depend upon the evidence led in a particular case
19 I am satisfied the appropriate “without injury” earnings figure is $87,544.00 gross per annum, or $1,683.54 gross per week.
Current earning capacity
20 Mr Collins suffered a significant injury which has left him with ongoing pain in his left wrist and hand, and a reduction of movement and grip strength. According to the report of Mr John Buntine, plastic surgeon, Mr Collins has developed osteoarthritis in the left wrist, which is likely to slowly progress, causing worsening symptoms.[7] There is the prospect, although uncertain, of a fusion of the left wrist.
[7]DCB 38
21 Dr David Wilson, the plaintiff’s general practitioner, in a report dated 4 March 2020, noted Mr Collins had a long-term disability and it was unlikely there would be any future significant gains or improvement. He noted that although Mr Collins was fit for some appropriate work, finding suitable employment to fit in with his disability would be difficult to achieve.[8]
[8]PCB 30
22 According to Dr Joseph Slesenger, occupational physician, Mr Collins has been left with reduced grip strength and difficulty turning, pushing and pulling with the left hand. I was able to observe these limitations when demonstrated in the course of evidence. The doctor noted wasting of parts of the hand and swelling in other parts. Dr Slesenger concluded Mr Collins could not return to his pre-injury work or work as a truckdriver, and said:
“Taking into consideration Mr Collins’ current symptoms and functional limitations, as well as the variable and unpredictable nature of his symptoms, his medication side-effects, his rural residential location, his qualifications and his computer skills (as well as his typing limitations), I am of the opinion that he is likely to have difficulties returning to work in a role for which he has suitable training and experience on a consistent and reliable basis.”[9]
[9]PCB 50
23 In a report of December 2019, Dr Darrell Nam, plastic, reconstructive and hand surgeon, also agreed Mr Collins could not return to any manual work where two hands were required, and would be unable to perform his pre-injury duties. Mr Nam said Mr Collins would be able to work in non-manual employment with only moderately light activity in areas such as administration, retail, or work that involved predominantly one hand.
24 In a vocational assessment report of May 2020, Ms Erin Williams, who has qualifications in health science and career development, undertook a vocational rehabilitation assessment. She noted a range of restrictions due to Mr Collins’ injury, including as to grip strength, lifting and carrying capacity, typing, driving, and that he had psychological issues.[10]
[10]PCB 70-71
25 In relation to areas of employment suggested in a Nabenet report, Ms Williams said:
(a) Warehouse administrator – while primarily a sedentary role, there was frequent lifting and computer keyboard work. She said Mr Collins’ ability to undertake such work would be dependent on the requirements of the employer and his ability to meet productivity deadlines;
(b) Delivery driver – while there were certain aspects of the role Mr Collins would be able to undertake, again, it would be dependent upon the requirements of the employer. He may have difficulties on days when he had increased pain;
(c) Despatch and receiving clerk – Ms Williams said the job commonly required lifting when inspecting cargo, and frequent computer use. Again, Mr Collins’ capacity to undertake the work would depend upon the requirements of the employer;
(d) Customer service representative – Ms Williams said Mr Collins would struggle with this role as he had no customer service experience.
26 Ms Williams noted Mr Collins lived in Horsham, a rural town, with an economy dependent upon agriculture, local manufacturing, construction, public sector industries and retail services. She noted there would be a greater competition for jobs in Horsham than in the open labour market. She further noted capacity to obtain work decreased with the severity of a person’s disability and their age.
27 Ms Williams also considered the job of a forklift driver was unsuitable, but the defendant did not pursue that area of employment as being within the plaintiff’s capabilities.
28 Mr Buntine, who examined the plaintiff on several occasions on behalf of the defendant, concluded that notwithstanding the significance of the injury, Mr Collins had the capacity to work as a warehouse administrator, delivery driver (light items), despatch and receiving clerk and customer service representative. He said Mr Collins could work on a reliable and full-time basis in those areas, with a lifting restriction of no more than 2 kilograms in his left hand.
29 Mr Collins, in the course of cross-examination, was taken in considerable detail to a report of Ms Eleanor Ryder of Nabenet, a vocational assessment and health services provider. The report considered various areas of employment, assessed the duties and demands of each job and the expected salary.
30 Mr Brett submits I should not accept the findings of the report and the opinions contained as there is no detail of Ms Ryder’s qualifications, experience nor expertise.
31 The Nabenet report suffers from a number of deficiencies. Not only are the qualifications of the author not set out, but in respect of the two relevant potential areas of employment, warehouse administrator and despatch and receiving clerk, there is no detail as to where the expected wages of $1,150.00 and $1,100.00 respectively, came from. The figures are said to be “average weekly wage before tax”; but their source is unknown. There is no reference as to whether such a wage is for an inexperienced person commencing such a job, or whether it relates to an employee with significant training and experience. If it is an average of the two, that may not have application to Mr Collins who, although working in a supermarket, has not worked in a warehouse.
32 It is said in the report there is a potentially suitable vacancy as warehouse manager at Oscar Furniture in Horsham although there is no detail as to the salary offered and whether the wage figure used is related to that employment. In relation to despatch and receiving clerk, there was no potential suitable vacancy identified.
33 The only medical reports provided to Nabenet are from a surgeon, Dr Phillip Sharp (of May 2016), and from a general practitioner, Dr Wimbury (of January 2019), both of whom apparently suggest Mr Collins has a capacity for suitable employment. Those reports were not tendered in this proceeding. There is nothing to suggest the reports of other practitioners who have come to a different view as to work capacity, were provided to Ms Ryder.
34 There was provided in the Defendant’s Court Book the “Clerks Private Service Award 2010”, but it is not clear whether that was the award relied upon by Ms Ryder. In any event, almost all the various salaries set out are more than 40 per cent lower than the figure of $1,683.54, the “without injury” earnings figure I have adopted.
35 As earlier stated, in determining whether a worker has suffered a 40 per cent loss of earning capacity, if the evidence points to a worker having a capacity for employment after injury, there is the need for reliable and persuasive evidence as to the wages for positions for which the worker is said to have capacity. When, in a case such as this, it gets down to only a fine margin, there is the need for precision, and verifiable statistical information. I find myself unable to rely upon the Nabenet report.
36 In the course of cross-examination, Mr Collins said that he had applied for a number of jobs. He applied for work as a mobile road camera operator but did not get an interview. He thought he would probably have the capacity to do that job. It was suggested by Nabenet he could work in the motor vehicle retail area, for example for Supercheap Auto, as he had a particular interest in cars. He said that not knowing what was involved in the role, he would be uncertain as to whether he could perform the work. There was reference to work as a warehouse clerk for Harvey Norman. He said he did not think he would be able to do that job because of the heavy lifting. He had applied for work as an administrative assistant in Horsham, but was unsuccessful. There were forty or fifty applicants. He applied for other jobs as an administrative or office assistant, both of which he thought he might be able to perform, but the jobs went to more experienced candidates.
37 Mr Collins thought he could work as an office worker or a courier driving, delivering light items. He applied for a job with BP as an office worker and obtained an interview; however, he was not offered the job.
38 Mr Collins said that while he was still applying for jobs, there was not much around in the Horsham area at the present time.
39 When cross-examined in respect of his capacity to carry out work as a warehouse administrator or despatch and receiving clerk, he thought he might be able to carry out the tasks, although was uncertain without trying the jobs.
40 Surveillance film of Mr Collins playing cricket over a considerable period in January 2019 was tendered. Mr Collins was shown to bat, bowl and for a short time, to field. He appeared to use his left hand and wrist with relative freedom, striking the ball while batting and swinging his left arm through while bowling with his right. He said he was not as fluent or as able, particularly with batting on the off-side, although he was seen to strike the ball in that direction once or twice. While the film would indicate a reasonable ability to use his left hand and wrist while playing cricket, the medical evidence is clear that he has suffered a significant crushing injury which has left him with considerable lack of movement in the left hand and ongoing pain requiring, at times, powerful pain-relieving medication. I am of the view the surveillance film does not significantly affect Mr Collins’ credit, as he set out in his first affidavit details of his ongoing involvement with his cricket club.
41 I am not satisfied the job as a customer service representative or in a sales role is within Mr Collins’ capacity. He has never worked in the area and does not have the skills, knowledge or ability to carry out such work. As stated, the defendant concedes he does not have the capacity to work as a forklift driver.
42 If I was to accept Mr Collins had the capacity for work as a warehouse administrator, or despatch receiving clerk, and were to accept the wages identified in the Nabenet report, his application as to loss of earning capacity would fail, given the income for those positions exceeds 60 per cent of what I accept are his “without injury” earnings. Considering the assessment of his pain and restrictions referred to in the medical reports, I prefer the assessment of Ms Erin Williams, who was retained by the plaintiff, where she made the quite reasonable assessment that Mr Collins’ capacity to undertake work in those areas would depend entirely upon the real nature of the duties he was required to undertake.
43 What is clear is that Mr Collins had the ability, from October 2016 until April 2018, to work for the defendant in an office administrative job. In March 2017, he was paid $22.23 per hour for a 38-hour week, or $844.74 gross per week. Mr Brett accepted his client could reliably undertake that employment on a full-time basis. This, in my view, is the appropriate figure to adopt as “after injury” earning capacity.
44 Given I accept his “without injury” earning capacity as $1,683.54 gross per week, his loss of earning capacity as a result of injury exceeds forty per cent.
45 A matter which is not insignificant is that Mr Collins lives in Horsham. He was born there, has lived his life there, his parents live there, and his social and sporting connections are there. It is a rural town without the numbers of jobs available, for example as Melbourne. The definition of “suitable employment” in the Act requires consideration of not only age, education, work experience and skills, but also a worker’s place of residence. His work capacity must thus be regarded in the context of the town he lives in and the availability of employment there.[11]
[11]Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at paragraph [101]
46 In all the circumstances, the plaintiff’s application in respect of loss of earning capacity should succeed.
- - -
2
3
0