Creswell v Incitec Pivot Ltd
[2014] VCC 87
•6 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-01939
| JASON WAYNE CRESWELL | Plaintiff |
| v | |
| INCITEC PIVOT LIMITED | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20-21 and 31 January 2014 | |
DATE OF JUDGMENT: | 6 March 2014 | |
CASE MAY BE CITED AS: | Creswell v Incitec Pivot Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 87 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act – s134AB Accident Compensation Act 1985 – Occupational asthma – Aggravation of pre-existing condition – Extent of aggravation – Consequences – Pecuniary loss and pain and suffering damages
Legislation Cited: Accident Compensation Act 1985 – s134AB - s134AB(38)(f)(ii) - s134AB(38)(g)
Cases Cited:Hayhill Pty Ltd v Hodge [2006] VSCA 194 - Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 - Acir v Frosster Pty Ltd [2009] VSC 454 – Barwon Spinners v Podolak (2005) 14 VR 622
Judgment: Leave granted to the plaintiff pursuant to s134AB(16)(b) of the Act to bring proceedings for the recovery of damages for pecuniary loss and pain and suffering in respect of an aggravation of occupational asthma arising out of and in the course of his employment with the first defendant up to 1 July 2009.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with Mr M J Ruddle | CTT Legal Management |
| For the Defendant | Ms A C Ryan | Thomsons Lawyers |
HIS HONOUR:
Introduction
1 Jason Creswell is a 34-year-old former plant operator who worked at the Incitec Pivot plant in Geelong effectively between 1998 and 2009. He was initially engaged as a casual, and after about one year he was permanently employed by a labour-hire company for three years before being directly employed by the first defendant, “Pivot”, between 2003 and 2009.
2 The Pivot plant made fertilisers and by-products at its plant, with the work generally being confined to three specific sheds. There is no real dispute that the work at Pivot involved exposure to phosphate dust and various chemical fumes. The plaintiff was retrenched together with a large number of other workers in July 2009 and claims that prior to that time his asthma condition has been aggravated, causing difficulties in terms of further employment and in relation to his general enjoyment of life. He seeks leave in accordance with s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to claim damages against his former employer in respect of both pecuniary loss and pain and suffering damages.
3 There is no issue between the parties in relation to the plaintiff suffering compensable injury so as to enliven the opening words of s134AB. Equally, the plaintiff does not challenge the defendant’s assertion that he did suffer from pre-existing asthma prior to his employment with Pivot. The real issue for determination is the extent of consequences flowing from the aggravation of the asthma condition, and whether those consequences entitle the plaintiff to leave either in respect of pecuniary loss damages and/or pain and suffering.
4 The plaintiff was required for cross-examination and gave viva voce evidence, as did the general practitioner Dr Santosh Kurien, the treating respiratory physician Dr Chris Steinfort, and Dr Peter Trembath, a respiratory physician who provided medico-legal opinions to the plaintiff’s solicitors between 2011 and late 2013. Further evidence was received from the parties in documentary form tendered from the respective court books provided at the trial.
The plaintiff’s evidence
5 The plaintiff swore affidavits in support of his application on 29 November 2011 and 14 February 2013.[1] The first affidavit described the nature of the work as a plant operator and described the three sheds forming the factory, known as “the grinding house”, “the dens” and “the dryer plant”.
[1]Exhibit A, pages 11–19
6 The grinding house was where the phosphate rock would first be unloaded from the wharf onto a conveyor belt and taken into the factory. The rock would then be crushed, resulting in a great deal of dust. In addition to the phosphate rock, sulphuric acid had to be unloaded from ships into tanks, resulting in fumes. Fumes were additionally noted by the plaintiff when loading fluoroacetic acid into the tank farm which was a separate area of the Pivot plant. The plaintiff then described the dens as a mixing room where phosphate rock, sulphuric acid and scrubber water was mixed, also resulting in considerable fumes and dust. The affidavit did not specifically refer to the dryer sheds, but referred to storage sheds, again referring to “a great deal of dust”.[2]
[2]Exhibit A, page 13
7 The plaintiff’s first affidavit described him starting to experience breathing difficulties in approximately 2000, and attending his then general practitioner, Dr Costa, who prescribed Ventolin. The plaintiff alleged increasing use of medication over the years up until the time he was retrenched. In addition to the Ventolin, the plaintiff was prescribed Seretide and Symbicort. The affidavit also stated:
“I’ve had to go to the emergency department at the hospital on a number of occasions.”[3]
[3]Exhibit A, page 14
8 In terms of the pecuniary loss consequences, the plaintiff effectively deposed that he had been unable to find any suitable employment since being retrenched by Pivot, but had obtained some limited employment at the Shell Refinery and with Alcoa. The substance of the plaintiff’s affidavit material was that he had succeeded in obtaining work for a period of some weeks or months but ultimately his respiratory difficulties precluded him from continuing.
9 The plaintiff’s affidavit material described various domestic and recreational activities that were said to be affected by reason of his worsening asthma condition. Broadly, he stated that he had become breathless, had difficulty in breathing, and was limited in his ability to perform most strenuous activities.
10 In cross-examination the plaintiff agreed that he had suffered from asthma requiring the use of Ventolin puffers and treatment from his general practitioner prior to commencing at Pivot. He also agreed that that condition led at times to shortness of breath and wheezing. The plaintiff also accepted that from 1999 right up until about 2008 or thereabouts he was regularly monitored by a doctor at the clinic at Pivot. He specifically agreed with a medical record from 2006 stating:
“In my opinion this person is medically capable of performing all duties in the specified job.”[4]
[4]Transcript (“T”) 42, Line (“L”) 18–22
11 The plaintiff nevertheless maintained that he had complained of respiratory problems and shortness of breath to the medical examiner at that time. A similar response was given by the plaintiff to the records of a medical examination made by Dr Virgona on 25 October 2008.
12 The plaintiff accepted that between 2003 and 2008 his earlier general practitioner, Dr Taylor-Walker, had only prescribed one prescription for Symbicort in 2005, one prescription for a Ventolin inhaler in 2006, and two prescriptions for Seretide in 2008. The plaintiff maintained that he was able to buy Ventolin over the counter without a prescription.[5]
[5]T46, L8–18
13 The plaintiff was further cross-examined as to the actual work performed by him subsequent to Pivot, and the job-seeking efforts which he had made. The plaintiff agreed that he had worked for an organisation called Sulzer at the Shell Refinery between 31 August and 18 October 2009 and again for a similar period in 2011. He agreed that he was employed as a trades assistant but had actually worked as what was described as a “standby man”, where his job was to “stand outside a column all day and radio people in and out”.[6] He stated that he had worked somewhere between 40 to 50 hours a week for a 7‑week period in 2009 when he was employed as a casual. He agreed that his earnings were $24,390. The plaintiff denied that he would have been able to continue in that employment, stating:
“I would give it a go. In the end I actually went up to them after the first lot and said ‘I’m going to leave. I can’t do it anymore.’ Because I was struggling.”[7]
[6]T52, L31–T53, L1
[7]T54, L16–19
14 The plaintiff agreed in cross-examination that he had worked for DJ & M Burns for eight days in 2010. He denied it was a labouring job, stating:
“It was an excavator’s job but it was a bit of everything. It was a bit of forklift driving, but mainly excavating stuff.”[8]
[8]T55, L2–4
15 He described the work as being over about a 3‑week period in which he would do a day on and have a day off, or perhaps work two days and then have a day off. He stated that he struggled with the work.
16 The plaintiff further agreed in cross-examination that he had been untruthful in relation to a job application made during 2009 referring to other jobs by way of past experience when he had not in fact worked in those jobs. He stated:
“They’re actually good friends of mine and I put them in and asked them about it and I had – so I could have them as a reference, so I could get myself some work rather than having big gaps in my resume and looking like an idiot.”[9]
[9]T58, L28–T59, L1
17 The plaintiff was further cross-examined about his retained skills for alternative employment, and, whilst conceding that his skill set went beyond actual physical work, he maintained that much of it was related to the work he had done for many years with Pivot. He agreed that after being made redundant he had applied for a job with Pivot in Queensland but had been unsuccessful. He further agreed that he had sought employment with a subcontractor to Alcoa and was medically certified “generally fit to work but not fit for pot-room work ... history of occasional asthma, using Ventolin and Seretide”.[10] He agreed this had been in 2011.
[10]T66, L21–24
18 In relation to retraining or reskilling after leaving Pivot, the plaintiff agreed that he had paid to obtain a heavy rigid vehicle driver’s licence.[11] He further agreed that he had not requested retraining specifically through Centrelink, stating:
“Centrelink hasn’t requested me to do any retraining.”[12]
[11]T76, L16–17
[12]T75, L32–T76, L1
19 He agreed that he would be able to work in some type of administrative role possibly if he sought retraining in that area.[13] He later stated that his reading and writing skills were not very good in relation to this possible retraining.[14]
[13]T75, L26–28
[14]T78, L1
20 When cross-examined about his affidavit stating he had attended the Geelong Hospital because of respiratory difficulties, he stated:
“I have been in there but I’ve never been admitted.”[15]
[15]T88, L16-23
21 When pressed, he conceded that his name was probably not recorded, as the time he was told to wait meant that he had never actually waited to be seen at the hospital.
22 There was further cross-examination about potential future jobs generally in warehousing, transport and dispatch, which the plaintiff conceded he might be capable of doing after training. I should comment that a careful review of the evidence enables me to conclude that the plaintiff did not accept that he could do any job where he might be exposed to dust or chemicals or one involving heavy physical activity, due to the ongoing effects of his respiratory condition.
23 The cross-examination in relation to recreational activities challenged the plaintiff’s assertion concerning BMX riding, mountain-bike riding, and motocross riding.[16] The plaintiff conceded in cross-examination that he had ridden a BMX bike up until he was eighteen years of age. He had stopped racing when he was about eight or nine. As to the frequency of mountain-bike riding, the plaintiff stated “Not a real lot.”[17] He agreed further that he still held a motorcycle licence but no longer owned a motorcycle.
[16]Exhibit A, page 15
[17]T102, L29–30
24 His current medical treatment regime was to see Dr Steinfort approximately every six months and to see his GP every 28 days. He had purchased a nebuliser machine and had had one since he was first told that he was suffering from asthma.
25 In re‑examination the plaintiff maintained that he had taken the initial casual position with Sulzer due to financial pressures after being made redundant by Pivot. He further gave evidence that he had paid for the heavy rigid driving licence from his severance pay at Pivot, and that his performance had been rated to indicate that he was better suited to being a trades assistant than a qualified fitter.
The medical evidence
26 The defendant requested the attendance of the general practitioner Dr Santosh Kurien, the treating respiratory physician Dr Chris Steinfort, and the consultant respiratory physician Dr Peter Trembath, for cross-examination. Dr Kurien’s opinion as to the plaintiff’s work capacity was set out in his report of 8 April 2013:[18]
“Jason suffers from occupational asthma. He has to avoid dust, fumes, extreme variations of temperature and activities that can exacerbate his asthma. He will be suitable for employment provided he is not exposed to the abovementioned asthma triggers in the workplace.”
[18]Exhibit A, page 103
27 He gave similar descriptions in later reports, and most recently commented:
“Jason will most likely be able to do any work provided he is not exposed to irritants like fumes and also provided his activities required for the job is not to a level where his asthma is affected. Jason is young and he can also be retrained to do something similar to administrative jobs.”[19]
[19]Exhibit A, page 104.2.2
28 Dr Kurien described the level of medications prescribed as at the end of 2013:
“He is currently on Symbicort 200/6 inhaler and has been taking six inhalations daily. During bad exacerbation he has had to take prednisolone tablets for a few days and used Ventolin in addition to his Symbicort.”[20]
[20]Exhibit A, page 104.2.2
29 When cross-examined, Dr Kurien described a slightly lower level of current medication.[21] He confirmed a history of the reported level of physical exertion, stating:
“Each time I see him he says he is able to sort of walk for 5 to 10 minutes before he starts getting respiratory symptoms.”[22]
[21]T133, L12–15
[22]T135, L27–29
30 I accept Dr Kurien has treated the plaintiff and responded to the reported complaints made to him. It was clear from his earliest medical report to the plaintiff’s solicitors that in terms of work capacity he was at least assisted, if not guided, by the assessment made by a specialist.[23]
[23]Exhibit A, page 104.1
31 Dr Steinfort, who has treated the plaintiff since November 2011, agreed with all other medical practitioners that the plaintiff suffers from bronchial asthma following ten years of repeated inhalation injuries resulting from exposure to chemicals used at Pivot. He felt the plaintiff’s employment capacity was restricted, and referred to his lung function as being “moderately impaired”. This condition was regarded as likely to continue for the rest of his life.[24]
[24]Exhibit A, page 102
32 In cross-examination he confirmed that he had seen the plaintiff on somewhere between six and ten occasions since 14 November 2011. He was currently reviewing him on a six monthly basis. He agreed that the plaintiff would have a capacity for work in a storeroom, driving a delivery truck or a forklift truck qualifying those occupations with a caveat that the work be performed in a fairly clean environment with the plaintiff not exposed to noxious chemicals or irritating dusts.[25]
[25]T157, L26–T158, L2
33 Dr Steinfort was also cross-examined about the plaintiff’s pre-existing history of asthma and stated:
“I don’t believe that a history of asthma was sought from him at the time that he commenced work with Incitec Pivot and in fact the lung function performed at about the time of his employment beginning … in 1998 … was normal and did not indicate any evidence of airflow, obstruction or impairment.”[26]
[26]T159, L20–28
34 Dr Steinfort agreed with the submission that the plaintiff had restricted employment choices before starting with Pivot and that “a reasonable employment service would have identified that”.[27]
[27]T161, L28-30
35 In re-examination, specifically in terms of Mr Creswell’s capacity for physical exertion, Dr Steinfort stated:
“[He] struggles to walk at a normal pace or walk up hills or exert himself energetically, so it’s not cripplingly disabling breathlessness but it is substantial limitation on his exercise capacity.”[28]
[28]T162, L9–12
36 In answer to further questions put by me, he opined that the asthma at the time of the commencement of the plaintiff’s employment with Pivot was at the lower end of the diagnostic spectrum. He further commented in relation to the exposure over the years at Pivot, “I think it’s transformed Mr Creswell from being at the very mild end of the spectrum to now having a degree of chronic, severe irreversible impairment with the risk of that getting worse in the future”.[29] He also confirmed that the plaintiff had a realistic prospect of future employment as a truck driver or a storeman, provided he was not dealing with dust or noxious chemicals and if he was in a clean stores’ environment.
[29]T162, L29–T163, L2
37 The defendant also required Dr Peter Trembath for cross-examination. Dr Trembath had examined the plaintiff initially on 20 October 2011, 10 January 2013 and 3 October 2013. In addition to preparing medico-legal reports following each of those examinations of the plaintiff, he also provided further brief opinions on matters raised by the plaintiff’s solicitors. Dr Trembath’s medical reports were all tendered in evidence.[30] Dr Trembath is a consultant physician who has retained a major involvement as a specialist physician in respiratory medicine since 1975. In cross-examination, Dr Trembath agreed that over the spectrum of people he would assess suffering from asthma “a lot of them are able to maintain full-time work”.[31]
[30]Exhibit A, pages 77–90.13
[31]T110, L22–23
38 Dr Trembath was further cross-examined as to the reliability of lung function testing and particularly in relation to a comment made in testing performed earlier in 2011 that concluded, “Sub-maximal effort. Poor technique. Unproducable results”.[32] Dr Trembath commented that the earlier tests may have been performed under different laboratory conditions, whereas he was confident that testing done to his request “was carried out by my laboratory scientist … amongst my laboratory scientists I’ve had over the years she has been one of the strictest in terms of interpreting this sort of performance”.[33]
[32]Exhibit A, page 79
[33]T113, L14–16
39 Dr Trembath was cross-examined quite extensively about the differing results to lung function tests performed on the plaintiff. In response to the proposition put to the doctor that “someone might be seeking to exaggerate the symptoms from which they suffer”, the doctor replied:
“Well perhaps to some extent but on this particular occasion, despite what I’ve said about the flow volume loops, the performance of the tests were within 5 per cent of each other and, if someone is underperforming, it takes enormous skill to actually underperform so reproducibly from time to time.”[34]
[34]T123, L27–T124 L3
40 In terms of the severity or otherwise of the condition, Dr Trembath opined:
“So I think the indications from that were that he had asthma which is of some severity. It is having a significant impact on his quality of life, his need for further – well, need for medication, his attendance at emergency departments and so forth.”[35]
[35]T125, L22–26
41 Dr Trembath gave further evidence about work capacity, concluding that the plaintiff was not fit for his pre-injury employment, and regarded him as fit for sedentary employment, including light work such as warehousing work in a relatively clean and fume-free environment, ultimately depending upon the air quality and the level of physical exertion.
42 The remaining medical evidence relied upon by both parties was not particularly contentious, and was not the subject of any real argument by counsel in the closing addresses. The defendant had relied upon letters from Dr Steinfort to the treating general practitioner in November 2012 and May 2013 as supportive of the proposition that the plaintiff had a current work capacity at least for work in a storeroom or doing delivery driving or similar.[36]
[36]Exhibit 2, 321(a)–321(b)
The competing arguments
43 In closing addresses, Ms Ryan, who appeared for the defendant, urged me to conclude that the consequences of the injury suffered by the plaintiff, being that of an aggravated asthma condition, would not satisfy the statutory test in respect of either pecuniary loss or pain and suffering.
44 In relation to pecuniary loss, the defendant did not dispute the plaintiff’s actual pre-injury earnings, which show the three years pre‑dating his redundancy were as follows:
Year ended 30 June 2007 $87,257
Year ended 30 June 2008 $100,989
Year ended 30 June 2009 $102,438
45 Rather, the defendant’s submission was to the effect that I should not properly regard figures of that magnitude as properly representing the worker’s “without injury” earning capacity as described in s134AB(38)(f). The defendant submitted that the plaintiff had no suitability for that type of work by reason of his pre-injury asthma, and that a lesser figure should be calculated based upon a “Year 10-educated, unskilled labourer and the jobs someone at that level can perform”.[37] It was also argued that the pre-injury earnings could not be in the order of $100,000 per annum, as those jobs had ceased to exist in the Geelong region at the time the plaintiff was made redundant.
[37]T188, L1–2
46 Ms Ryan submitted that the post-Pivot employment with Sulzer, albeit for limited periods in 2009 and 2011, was significant to the determination of this matter, in that the plaintiff had managed to work in excess of 40 hours per week for virtually all of that period of employment, and regularly worked up to 55 hours per week.
47 Finally, in relation to the question of the plaintiff’s post-injury earning capacity, the defendant’s counsel referred me to a list of jobs and earnings set out in the Plaintiff’s Court Book.[38]
[38]Mr Paul Hartley, Occupational Rehabilitation Group, 4 December 2013, esp at pages 104.55 and 104.56
48 It was also submitted that I should refer to a workplace agreement dated 21 June 2010 showing the rates of pay of comparably employed persons working at the Pivot site after it reopened in 2010.[39] By reference to that document I should find that the plaintiff had a “without injury” earning capacity of $58,000 per year. In those circumstances a finding that the plaintiff was capable of performing any of the jobs described as suitable in the Plaintiff’s Court Book would mean that the plaintiff failed to prove a permanent reduction in earning capacity of 40 per cent or more as required by s134AB(38)(e)(i).
[39]Skilled Group Ltd Workplace Agreement, Exhibit 2, pages 156–183
49 The defendant did not concede that the consequences of the accepted injury resulted in pain and suffering consequences that would satisfy the serious injury test, but did not argue forcefully against such a conclusion.
50 The plaintiff’s submissions touched briefly upon the pain and suffering consequences, highlighting the opinion given by the treating physician Dr Steinfort as to the extent of the deterioration in the plaintiff’s condition which was unchallenged by the defendant when Dr Steinfort gave evidence. It is appropriate to set out that opinion at this time:
“It is also worthy of note that Jason’s record of lung function has declined dramatically from being virtually normal early in his employment at Incitec Pivot Pty Ltd to now being significantly impaired and moderately obstructed.”[40]
[40]Report of Dr Steinfort, 26 November 2012, Exhibit A, page 101
51 It was submitted that a consideration of the plaintiff’s age, in particular, coupled with the consequences in terms of breathing difficulties which were constantly suffered by the plaintiff, would enable me to reach a conclusion in respect of pain and suffering that the consequences were more than significant or marked to the extent of being at least very considerable.
52 The plaintiff’s submission, however, was more concerned with an analysis of the plaintiff’s pre and post-injury earning capacity in terms of its application to the legislation. In terms of the labour market analysis to which both parties consented were to be adopted,[41] I should accept the submission that the plaintiff had a retained capacity for employment, but should conclude that from the list of possible alternative occupations set out, the plaintiff would only have a capacity for a limited number of those positions, none of which would produce a capacity to earn whereby the plaintiff would fail to discharge his statutory onus. The plaintiff further submitted that the additional jobs with potentially higher earnings were effectively aspirational positions, rather than positions for which the plaintiff was currently suited at the time of this assessment and after taking into account the reasonableness or otherwise of his attempts at rehabilitation or retraining. It was submitted that there was no evidence of any unreasonableness by the plaintiff, and indeed no evidence suggested by the defendant touching upon the question of rehabilitation or retaining.
[41]Exhibit A, pages 104.55–104.56
53 The plaintiff submitted that the appropriate pre-injury earning comparator should be the actual earnings of the plaintiff in the three years preceding his redundancy in June 2009, as these amounts were what the plaintiff had actually been earning. On that basis, the post-injury earning capacity in the period set out by the statute would demonstrate that the plaintiff had suffered a reduction in his earning capacity greater than 40 per cent indefinitely into the future.
Conclusions
54 I am satisfied that by reason of the accepted aggravation, exacerbation or acceleration of the underlying asthmatic condition, the plaintiff had been rendered permanently unfit for certain types of employment, especially employment involving exposure to excessive fumes and dusts or employment requiring significant physical exertion. His past work record with Pivot would support a view that the pre-existing level of asthma was such as to permit him to undertake his full duties whilst at Pivot, albeit in circumstances where the underlying condition became aggravated over time.
55 The extent to which pecuniary loss consequences or indeed pain and suffering consequences flow from that aggravation must be determined not only from the plaintiff’s evidence but from the whole of the evidence relied upon in this application. Indeed I would not be prepared to rely heavily on the plaintiff’s evidence alone, given the concessions made in cross examination.
56 The medical evidence, together with the evidence of the plaintiff attempting to work in certain occupations post-July 2009, enables me to reach a conclusion that the plaintiff does have a continuing capacity for the types of work that are best described by Drs Steinfort and Trembath who gave evidence before me. Thus, work in the nature of truck driving, forklift driving or stores work, provided such activities are in a relatively clean environment and do not require extensive physical activity, are the types of work for which I find the plaintiff has a current work capacity. The work attempted by the plaintiff at the Shell Refinery when employed by Sulzer Chemtech in 2009 and 2011 was ultimately not work for which he was suited.
57 I do not need to rely solely on the plaintiff’s evidence in coming to this conclusion. I have taken into account also the performance feedback document completed by a Mr Geoff Ryan of Sulzer Chemtech on 24 September 2011, which comments that the plaintiff “makes a better T/A than being a fitter” and does not recommend rehiring him.[42] I would comment that whilst that assessment also makes negative comments as to the plaintiff’s aptitude and attitude for the work with Sulzer, there would seem to be no medical evidence that would support the plaintiff’s fitness for work involving him entering confined columns at the Shell Refinery doing maintenance fitting in circumstances where he is exposed to dusts or fumes and working in a confined space.
[42]Exhibit 2, pages 289–290
58 The totality of the medical evidence supports the proposition that the plaintiff now has only a limited capacity for employment, avoiding exposure to fumes and dusts and significant physical exertion. There is no evidence to suggest that this condition is likely to be ameliorated in the foreseeable future.
59 The parties are unable to agree as to precisely what work the plaintiff is suited for post-injury. They do agree that, from the list of various employments set out in the vocational assessment prepared by the Occupational Rehabilitation Group in December 2013, I am entitled to regard the suggested earnings figures therein as agreed earning figures for each of the suggested post-employment occupations.[43] From the list of jobs specified in that report I find suitable employment would include work as a bus driver, forklift operator or storeperson. Whilst some examples of these jobs may be individually unsuitable for the plaintiff, I believe the concept of physical capacity for suitable employment as described by the Court of Appeal in Barwon Spinners Pty Ltd v Podolak[44] would be satisfied, even though individual or extreme examples of that work may not suit the plaintiff’s particular circumstances.
[43]Exhibit A, pages 104.14 ff, esp at pages 104.55 and 104.56
[44](2005) 14 VR 622, esp at [27]
60 The figures in the report to which I have referred and agreed to by both parties show the earnings for a bus driver to be $1108 gross per week, a forklift driver at $943 per week, and a warehouse assistant/stores person at $944 per week. The highest earning position that I find to be suitable for the plaintiff is that of a bus driver at $1108 gross per week, which annualises at $57,616.
61 In relation to the plaintiff’s pre-injury earnings, I have previously set out his actual annual gross earnings in the years ended 30 June 2007 to 30 June 2009. During that period, in the year preceding the cessation of his employment, the plaintiff actually earned $102,438. The wording of sub‑s 38(f)(ii) requires a comparison of the earnings or earning capacity “as most fairly reflects the worker’s earning capacity had the injury not occurred”. It specifically avoids any direction to average the figures over that period (unless such an exercise would yield a figure satisfying the words “as most fairly reflects the worker’s earning capacity”). In the present case, the plaintiff’s earnings prior to sustaining injury had increased in each of the three years so that he was actually earning $102,438 as at the date he was made redundant. On that basis I find $102,438 is the appropriate gross annual pre-injury earnings of the worker had the injury not occurred. Sixty per cent of this figure is $61,462.80.
62 On the basis of those findings, I am satisfied that the plaintiff, by reason of his injury and applying the calculation method mandated in sub-ss 38(e)-(f), has satisfied the statutory requirement to demonstrate a loss of income of not less than 40 per cent for the foreseeable future. In the circumstances of the present case, I am satisfied that even if an average of his earnings over the last three years was adopted as being the figure “as most fairly reflects the worker’s earning capacity” pre-injury, that figure would be $96,894. Sixty per cent of that figure is $58,136.40. Once again, that figure exceeds the figure representing an annualised gross earnings figure for a bus driver, which is $57,616.
63 I further note that the current medical condition of the plaintiff warrants caution in terms of suitable employment where the employment may involve excessive physical exertion or excessive exposure to dusts and fumes. Even though both Dr Steinfort and Dr Trembath were cross-examined as to potentially suitable future employment available to the plaintiff, each was prepared to accept that the plaintiff had a capacity for such work, subject to the cautions expressed by each of them.
64 I am unable to accept the submission advanced on behalf of the defendant that I should disregard the actual earnings of the plaintiff when employed at Pivot up until June 2009 on the basis that the plaintiff was made redundant and therefore the job had disappeared. Ms Ryan was unable to provide me with any authority as to why this proposition should be accepted. It seems to me that a clear reading of the words in sub-s 38(f) mandates the court to adopt the plaintiff’s actual earnings in the three years pre‑dating the injury as the starting point to the calculation of a finding as to a figure “as most fairly reflects the worker’s earning capacity had the injury not occurred”.[45]
[45]Section 134AB(38)(f)(ii)
65 On a similar basis I can reject the argument suggesting that I should adopt a figure of $58,000 as a relevant comparator based upon a 2010 labour-market agreement of which no independent evidence has been adduced in this trial. The legislation clearly mandates that a comparison be made within the relevant period, starting three years before the accident and finishing three years after the accident. Such an approach was endorsed by the Court of Appeal in Hayhill Pty Ltd v Hodge.[46]
[46][2006] VSCA 194, esp at [7]–[15]
66 To avoid any doubt as to the period of calculation of the date of injury in a case based upon the aggravation of a pre-existing respiratory condition, I accept the date of 1 July 2009 which is contained in the worker’s injury claim form submitted on 12 July 2011.[47] There was no challenge of this date of injury by the defendant’s counsel in cross-examination. Indeed, the defendant put into evidence the results of workplace medical assessments in 2006 and 2008 which had found the plaintiff at that time fit to perform his pre-injury duties. Further, the agreed evidence of his earnings up to 1 July 2009 shows that he did in fact earn the amounts to which both parties agreed whilst in the employ of Pivot.
[47]Exhibit A, pages 261–262
67 The arguments advanced by the defendant’s counsel as to the unsuitability of the plaintiff for work at Pivot because of his pre-existing mild asthma, and the potential to train for administrative work in the future and the disappearance of that work availability after 2009, may well have some resonance in the common law arena. This, however, is a serious injury application, and must be determined in accordance with the requirements of the Act. In all the circumstances I am satisfied that the plaintiff has satisfied the quantitative requirements set out in sub‑s 38(g). Bearing in mind the extent of his earnings in the three years leading up 1 July 2009, and taking into account his age and the significantly limited employment opportunities available to him in the future, I have no difficulty in stating that such a reduction in his earning capacity will yield consequences for him that can fairly be described as at least very considerable when compared with a range of other losses or reductions in earning capacity.
68 Having found the plaintiff satisfies the statutory test for serious injury in relation to pecuniary loss, it is unnecessary for me to separately consider whether he would satisfy that test in relation to pain and suffering.[48]
[48]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [63]–[64], and Acir v Frosster Pty Ltd [2009] VSC 454 at [147]
69 I therefore grant leave to the plaintiff to bring proceedings for the recovery of damages in respect of an aggravation of occupational asthma arising out of and in the course of his employment with the first defendant up to 1 July 2009. I will hear the parties on questions of costs and formal orders to be made.
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