Cottam v Transport Accident Commission
[2015] VCC 385
•31 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05127
| KEVIN COTTAM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 March 2015 | |
DATE OF JUDGMENT: | 31 March 2015 | |
CASE MAY BE CITED AS: | Cottam v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 385 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the left elbow and upper limb
Legislation Cited: Transport Accident Act 1986, s93
Judgment:Plaintiff granted leave pursuant to s93 of the Transport Accident Act 1986 (as amended) to issue a proceeding for the recovery of damages in respect of injury as a consequence of the transport accident of 28 December 2011.
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APPEARANCES: | ||
| For the Plaintiff | Mr A D Clements QC with Mr S D Martin | Slater & Gordon Ltd |
| For the Defendant | Mr P D Elliott QC with Mr P Bourke | Hall & Wilcox |
HIS HONOUR:
1 In this application, the plaintiff seeks leave to commence an action seeking damages by reason of a transport accident which occurred on 28 December 2011 as the result of which he suffered a fracture of his left elbow consisting of a comminuted fracture of the left olecranon process involving intra-articular extension and minimal displacement.
2 The impairment of function relied upon by the plaintiff is that of the left elbow and upper limb.
3 In the application, the plaintiff relies upon three affidavits sworn by him in February 2013, December 2014 and March 2015, together with affidavits filed by former workmates and his current employer.
4 The plaintiff also gave viva voce evidence and was cross-examined.
5 In his affidavits, the plaintiff deposed as follows:
· From approximately the age of twenty-one, he had been employed as a steel fixer. At the time of the transport accident, he was working in that capacity as a leading hand, employed by Freyssinet Australia Pty Ltd (“Freyssinet”).
· The duties of a steel fixer involved the plaintiff in strenuous activity with both his arms as he undertook activities such as handling heavy steel cables in the course of fitting, fixing and stressing cables so as to allow the cables to act appropriately to reinforce concrete slabs.
· Following the accident, the duties which the plaintiff was required to undertake as a steel fixer aggravated the condition in his left arm such that he struggled to work the hours he had previously worked, which involved substantial overtime on a weekly basis. Accordingly, he left Freyssinet in late 2012 and commenced employment with Platinum PT Limited (“Platinum”) as a construction manager.
· The plaintiff was motivated to make this change by reason of his concern that the condition of his left elbow was such that he would not be able to continue to manage the duties required of him as a leading hand steel fixer with Freyssinet.
· In his position as a construction manager with Platinum, the plaintiff was able to choose the work which he undertook and thus protect his left arm. It followed that he did not work all the overtime which was available to him, with the result that his income had been significantly reduced.
· Eventually, in approximately May 2014, the managing director of Platinum restructured the plaintiff’s work such that he was involved primarily in supervision of the various worksites at which Platinum was undertaking work, together with some limited physical activities. In this role, the plaintiff receives a fixed salary of $120,000 per annum. The plaintiff described his management role as being stressful and difficult for him, deposing that it had always been his passion and interest to “be working full time on the tools” as a leading hand steel fixer. He said that the change in his work, whilst reducing his symptoms, had reduced his income and increased his level of stress. He said that he had expected to continue working “on the tools” until at least sixty-five.
6 There is no issue that upon commencing work with Platinum, the plaintiff was employed as a construction manager, in which position he was expected to work on the tools and undertake various strenuous activities.
7 The managing director of Platinum, Mr Fairweather, in an affidavit sworn by him dated 26 June 2014, describes overtime as being a significant factor in the salary package available to steel fixers, commenting that most employees would expect to work overtime of two hours a day during weekdays and six hours on a Saturday, the weekend work being paid at double time.
8 Mr Fairweather said that, whilst the plaintiff was not the type to complain:
· he was obviously struggling with the physical duties involved in steel fixing;
· he was not working the overtime available to him; and
· by reason of the plaintiff’s value to him as an employee, he offered the plaintiff a fixed salary with a pay rise.
9 Much of the cross-examination of the plaintiff involved an examination of:
· the plaintiff’s work history with respect to overtime whilst employed as a steel fixer;
· the reason for the plaintiff’s decision to leave Freyssinet following the transport accident; and
· the reason for the plaintiff accepting the management position with Platinum.
10 As to the plaintiff’s decision to leave Freyssinet, an affidavit was sworn by Donna Lane, on behalf of Freyssinet, in which she deposed:
· that the plaintiff’s stated reason for resigning from Freyssinet was that the company was too safety conscious; and
· that at the time of his resignation, the plaintiff had not mentioned being motivated to leave by reason of any difficulties associated with the performance of his work.
11 In the course of his evidence, the plaintiff denied having made the statement to which Ms Lane deposed, and maintained the position in his affidavit that his reason for leaving Freyssinet was solely motivated by reason of the condition of his arm and the impact of the work at Freyssinet upon that condition.
12 Both Mr Dooley, an orthopaedic surgeon, retained to examine the plaintiff in February 2015 on behalf of the defendant, and Mr Kierce, an orthopaedic surgeon, retained to examine the plaintiff in in January 2015 by the plaintiff’s solicitors, have each expressed the opinion that the plaintiff’s elbow injury is such that he is not fit to carry out his pre-accident work as a steel fixer. Relevantly:
· Mr Kierce opines that the plaintiff is no longer fit to cope with the heavy physical work which he undertook as a steel fixer; and
· Mr Dooley describes the plaintiff’s capacity as now being limited to light physical work, commenting that the plaintiff would have difficulty carrying out work as a steel fixer.
13 In the circumstances, I am satisfied that as the result of the subject injury, the plaintiff has lost the capacity to work as a steel fixer.
14 Given the lack of any controversy in the medical evidence as to fact that the injury to the plaintiff’s left elbow has been such as to render him unfit to work as a steel fixer, the reason for the plaintiff ceasing his employment with Freyssinet assumes little moment in the case other than raising, as it does, an issue as to the plaintiff’s credibility given the conflict between the plaintiff’s evidence as to the reason for his ceasing employment with Freyssinet and that of Ms Lane.
15 It is not in issue that the plaintiff’s current capacity for work is no different to that which existed once his injury had stabilised and he returned to work with Freyssinet.
16 Notwithstanding the fact that the plaintiff had been certified by his physiotherapist in 2012 as having the capacity to return to his pre-accident work, given the consensus of the opinion expressed by Mr Kierce and Mr Dooley as to the effect of the plaintiff’s elbow injury upon his capacity for work, I prefer the opinions of the orthopaedic surgeons on this issue to that expressed by a physiotherapist. Accordingly, I am satisfied that the effect of the transport accident was to render steel fixing work unsuitable work for the plaintiff and that this was the case from the time he first returned to work after the transport accident.
17 Having had the opportunity of assessing the plaintiff as he gave his evidence, the plaintiff impressed me as a truthful and reliable witness. At no time did he seek to prevaricate or exaggerate as to his level of symptoms or his level of incapacity.
18 I note that the plaintiff’s evidence that he had difficulty managing his duties as a steel fixer is supported by Mr Fairweather, who, in his affidavit, commented that the plaintiff struggled with the manual aspect of his work each day and that work colleagues were required to assist him from time to time but that the plaintiff did not complain of pain, commenting “I’ve known Kevin for some time and I do not believe it is in his nature to complain”.
19 This evidence is in turn consistent with:
· The medical evidence as to the plaintiff’s capacity for work; and
· The plaintiff’s evidence that he was struggling with the duties he undertook at Freyssinet, was concerned about his future with the company for that reason, and was, accordingly, motivated to accept the position with Platinum which gave him some control over the work he did and the hours that he worked.
20 It is clear that the plaintiff’s account as to the difficulties he encountered in undertaking his duties at Freyssinet is consistent with the opinions expressed by Mr Dooley and Mr Kierce to which I have referred, and I accept the plaintiff’s evidence as to that issue.
21 For the reasons set out above, I find the plaintiff’s evidence as to the reason for which he left his employment with Freyssinet to be consistent with his loss of capacity for unrestricted work and I accept the plaintiff’s evidence on this issue, preferring it to that of Ms Lane.
22 Further, when one considers the medical opinions of Mr Kierce and Mr Dooley, it stands, in my opinion, greatly to the plaintiff’s credit that he continued working as a steel fixer with Freyssinet and made no complaint as to the difficulty which he was having in undertaking that work.
23 The plaintiff’s credibility is, in my opinion, further enhanced by the comments made by Mr Fairweather as to his capacity and reliability as an employee, which motivated Mr Fairweather to put into place a process in which the plaintiff’s salary was matched with the expected wage available to him as a steel fixer such that if the plaintiff was working as a steel fixer earning eight hours of overtime a week, his income would equate to his current salary.[1]
[1]Transcript (“T”) 24, L19
24 For all these reasons, I am satisfied that the plaintiff presents as a person who has sought to minimise the loss to which his injury exposed him, and that he is a truthful and reliable witness.
25 An issue arises for my determination as to whether or not the plaintiff:
· is currently losing income; and
· is likely in the future to continue to lose income
when the wage he would have earned as a steel fixer but for the subject injury is compared with the wage the plaintiff is currently earning as a supervisor.
26 In deciding this issue, I am satisfied that the approach I should take is to compare the plaintiff’s current income with that which I am satisfied the plaintiff would be earning as a steel fixer where his income would be generated by a combination of the basic wage available to a steel fixer and the overtime which the plaintiff would have worked.
27 It is the evidence that the plaintiff’s current salary equates to that which he would be earning as a steel fixer at Platinum working normal hours, together with two hours of overtime each day during weekdays and six hours on a Saturday, this being the expectation of the work pattern of steel fixers employed by Platinum as deposed to by Mr Fairweather.
28 It is not in issue that:
· Shannon Crisp, who is employed as a leading hand with Freyssinet, is earning $2,802 gross per week
· Mark Smith, who is also a leading hand employed by Freyssinet, is earning $2,659 per week
· The plaintiff’s current earnings of $2,346 gross per week equates to the earnings of steel fixers employed by Platinum.
29 It follows that the steel fixers employed by Platinum earn less than those employed by Freyssinet.
30 Whilst there is no evidence as to the pattern of overtime work undertaken by Crisp or Smith, it is the plaintiff’s evidence, which I accept, that he is currently working 50 to 55 hours a week and probably more.[2]
[2]T45, L16
31 Assuming that the standard working week involves a 38-hour week, the plaintiff is currently working between 12 and 17 additional hours per week in his position as a construction manager.
32 Given the willingness of the plaintiff to work these types of hours, I accept the plaintiff’s evidence that he would have been prepared to work similar and overtime hours as a leading hand steel fixer in order to maximise his income but for the intervention of the transport accident.
33 The pattern of overtime hours which the plaintiff worked immediately prior to the transport accident during the period between 11 September 2011 and 18 December 2011 varied per week between 4, 6, 8 and, on one occasion, 10 hours (the most common period being 8 hours), the average being 6 hours per week.
34 It is put on behalf of the defendant that the average overtime hours which the plaintiff worked during this period is an indicator of the overtime hours which the plaintiff would currently be working if he was working as a steel fixer.
35 I do not find this position to be persuasive, having regard to the fact that the plaintiff is currently working the equivalent of twice or three times that level of overtime hours in his current work.
36 It was put on behalf of the plaintiff that the most persuasive evidence as to the wage available to the plaintiff as a leading hand steel fixer employed by Freyssinet is the wage earned by Crisp and Smith.
37 I accept this position, having regard to the pattern of the plaintiff’s current work which involves at least 50 to 55 hours a week, to which I have earlier referred.
38 Given the difference in earnings between steel fixers employed by Platinum and those employed by Freyssinet, the plaintiff’s evidence that but for the transport accident he would have continued to work with Freyssinet, makes good sense, and I accept it.
39 As to the likely longevity of the plaintiff’s employment as a steel fixer but for the subject injury, it is put on behalf of the defendant that the plaintiff would most probably have elected in his early fifties, independently of the influence of the injury to his elbow, to take a position as a salaried construction manager given the strenuous nature of steel fixing work.
40 In his affidavit, the plaintiff said that he had not enjoyed his previous experience as a construction manager and preferred to work with his fellow employees as a leading hand rigger. In the course of his evidence, the plaintiff maintained this position, explaining that his initial decision to take up a position as construction manager with Platinum was motivated by the fact that he could pick the jobs that he assigned to himself, which gave him the opportunity to work some overtime and manage his symptoms.
41 The plaintiff said:
· That this opportunity was not available to him at Freyssinet;
· That he did not enjoy the pressures associated with undertaking the duties of a construction manager;
· That but for his elbow injury, he would have continued as a steel fixer with Freyssinet, and that there was no physical reason why he could not have continued to perform such work in the long term.
42 I find this evidence to be consistent with the affidavit evidence filed on behalf of the plaintiff by the three steel fixers in this instance, and I accept this evidence.
43 For these reasons, I am satisfied that the plaintiff has established that but for the transport accident:
· It is probable that for the foreseeable future, the plaintiff’s income would have been substantially greater than his current income;
· The range of the incomes earned by Crisp and Smith represent the range of the plaintiff’s income;
· The plaintiff has, and will continue to suffer, a loss of income of between $456 and $313 gross per week, being a net income loss of between $203.50 per week or $10,582 per annum and $287 net per week or $14,924 per annum.[3]
[3]It is agreed by the parties that the plaintiff’s net loss of income is equivalent to 63 per cent of his gross loss of income
44 It is clear that the plaintiff retains a considerable capacity for physical activity. He can undertake short periods of strenuous physical activity such as the limited lifting he undertakes of 20-kilogram cement bags and other materials which he handles when loading vehicles, and most of the day-to-day activities involving maintaining his house and garden.
45 Given my findings as to the plaintiff’s credibility, I accept the plaintiff’s evidence that strenuous physical activity aggravates his symptoms; that he suffers from constant discomfort in his elbow which flares into pain when he undertakes heavier physical tasks such as cleaning gutters, pruning or undertaking the hands-on work which he is called upon to do in the course of his employment on the occasions when his work demands his physical input in order to meet a deadline.
46 Whilst the plaintiff manages his symptoms with no recourse to medication, but rather with the application of anti-inflammatory cream and balm which he applies each night, I am satisfied that the plaintiff is stoical in managing his pain.
47 I make this finding having regard to:
· The evidence of Mr Fairweather as to the plaintiff’s tendency not to complain although he was struggling with his work;
· The endurance the plaintiff exhibited at Freyssinet after the accident in undertaking work beyond his capacity which involved the plaintiff tolerating his symptoms such that Freyssinet was unaware that the plaintiff was having any difficulties with his work.[4]
[4]See the affidavit of Lane which makes it clear that Freyssinet was not aware that the plaintiff was experiencing difficulty performing his work
48 For this reason, I am satisfied that the plaintiff’s statements as to the levels of his symptoms are reliable and are most probably understated by reason of his stoicism.
49 For the reason to which I have referred earlier, I accept the plaintiff’s evidence as to the symptoms and incapacity caused by his injury.
50 It follows that I am satisfied that:
· The plaintiff suffers from constant low aching symptoms in his arm and regular exacerbations of those symptoms such that they manifest themselves as pain;
· The plaintiff’s symptoms are exacerbated on a regular basis such that they cause him to wake at night in pain and interfere with his ability to sleep. Whilst there is no evidence as to how long the plaintiff remains awake on these occasions, I am satisfied that the interference with the plaintiff’s sleep involves durations which are more than momentary and most probably of some significance, in that once the plaintiff wakes, his ability to return to sleep is interfered with by his ruminations. Further on this issue, I accept the plaintiff’s evidence that those ruminations would not otherwise have interfered with his sleep;
· The plaintiff has lost the capacity to work in the career he had chosen which, having regard to his general level of fitness, it was his reasonably based expectation that he would have been able to continue into his sixties;
· The plaintiff’s current work exposes him to stress which he has difficulty accommodating but must accept in order to maintain a reasonable level of income;
· The plaintiff is incurring, and will continue to incur, the loss of income to which I have previously referred;
· The plaintiff has lost the ability to play golf, an activity which he undertook on a fortnightly basis and which he enjoyed;
· The plaintiff, on a day-to-day basis, has lost the camaraderie of his fellow employees which was a feature of his employment and was important to him;
· The plaintiff’s loss of the ability to work as a steel fixer probably involves a loss which is likely would decrease the range of work opportunities available to him in an industry which may be fickle. Whilst it was put on behalf of the defendant that the plaintiff’s current supervisory position would give him some additional protection from the risk that he may be exposed to income losses in association with downturns within the industry, there is no evidence that this is in fact the case. Rather it would seem to me, having regard to the fact that the plaintiff was initially employed at Platinum on the basis that he would undertake hands-on work, that a downturn in the industry may test the tolerance of his employer to continue to structure the plaintiff’s wage so that it includes overtime earnings which were no longer available to the steel fixers he was supervising.
51 As to the issue which arises as to whether the plaintiff’s symptoms are likely to be exacerbated in the future by the onset of arthritis, I find the opinion expressed by Mr Kierce as to the likelihood of the plaintiff developing arthritis in his left elbow joint to be more persuasive than that expressed by Mr Dooley, having regard to the fact that fracture of the plaintiff’s elbow was comminuted and involved the articular surface of the joint. For this reason, I am satisfied that the plaintiff’s symptoms will most likely progress, the result being that his current restrictions, both with respect to movement and pain, are not stabilised and will probably increase. The rate of that increase and the extent of that increase, however, being a matter of speculation.
52 For the reasons set out above, I am satisfied that the impact of the plaintiff’s symptoms upon his life is such that it is appropriate to describe the consequences of the plaintiff’s accident-related impairment as being “more than significant or marked” and as being “at least very considerable”, such that it satisfies the definition of “serious injury” as employed by s93 of the Transport Accident Act 1986.
53 In these circumstances, I am satisfied that the plaintiff is entitled to the leave which he seeks in this proceeding, and I will hear the parties as to the order which I should make in the proceeding and also upon the issue of costs.
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