Curtain v Mylon Motorways Pty Ltd
[2011] VCC 1512
•29 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT WODONGA CIVIL DIVISION DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05236
| KEVIN THOMAS CURTAIN | Plaintiff |
| v | |
| MYLON MOTORWAYS PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Wodonga |
| DATE OF HEARING: | 27 October and 2 November 2011 |
| DATE OF JUDGMENT: | 29 November 2011 |
| CASE MAY BE CITED AS: | Curtain v Mylon Motorways Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1512 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB37(c) – psychiatric injury – pain and suffering and loss of earning capacity – leave granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti with | Nevin Lenne & Gross |
| Mr G Pierorazio | ||
| For the Defendant | Mr R Middleton SC with | Wisewould Mahony |
| Ms J Forbes | ||
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant during the period from 2002 to August 2004.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (c) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(c) permanent severe mental or permanent severe behavioural
disturbance or disorder.”
5 The plaintiff relied upon two affidavits, sworn 8 July 2010 and 22 September 2011, and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
6 The Court must not give leave unless it is satisfied on the balance of probabilities that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
7 In order to succeed, the plaintiff must prove, on the balance of probabilities
that:
(a)
“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant on or after 20 October 1999;[2]
(b)
the mental or behavioural disturbance or disorder must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) under s.134AB(38)(b) of the Act, the term “severe” is to be: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] Barwon Spinners (op cit) at paragraph [33]
“… satisfied by reference to the consequences to the worker of any mental or behavioural disturbance or disorder … with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of
possible mental or behavioural disturbances or disorders … .”
(d) under s.134AB(38)(d) of the Act: “a mental or behavioural disturbance [in this case the pain and suffering or the loss of earning capacity] … shall not be held to be severe … unless the … consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.”
The test for “serious”, as set out in paragraphs (b) and (d) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”;
[4] Advanced Wire & Cable Pty Ltd v Abdulle [2009[ VSCA 170 at [63]
(e) Section 134AB(38)(b) of the Act provides that the consequences of an injury in terms of “pain and suffering” and “loss of earning capacity” are to be considered separately. In the event that a worker satisfies sub- paragraph (i) but not sub-paragraph (ii) of s.134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of “pain and suffering” damages only; (f) if a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[4] 8 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard;[5]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[6]
[5] S.134AB(38)(j) of the Act
[6] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish that:
(a)
as at the date of hearing, he has a loss of earning capacity of 40 per cent or more measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act; and
(b)
after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
The Issues
10 Counsel for the defendant informed the Court that this is a “range case”, namely, that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than serious to the extent of being severe” when compared with other cases in the range. In addition, the plaintiff does not satisfy the arithmetic formula for loss of earnings. Further, even if the plaintiff meets the test, that there are other reasons unrelated to his work which have contributed to his condition, namely, his wife’s illness and subsequent death, and medical problems affecting the plaintiff, namely, a heart condition, cancer of the breast which is now in remission, and knee replacement.
The Plaintiff’s Evidence
11 In his affidavits sworn on 8 July 2010 and 22 September 2011, the plaintiff deposes that:
•
He commenced employment with the defendant as a bus driver. In about September 2002, he became an occupational health and safety officer.
•
In his position as a health and safety officer, he was ignored and treated with disdain by the defendant. He experienced intimidation when he thought he was not fit to work because of his wife’s illness.
•
He began to suffer from stress, psychological upset and difficulty sleeping. He sought medical treatment. He took medication, which did not assist.
•
In July 2004,[7] his symptoms were of such severity that he was unable to continue to work. He was certified as incapacitated by his doctor and prescribed anti-depressant medication. He was suffering from severe depression, irritability, loss of temper, frustration and difficulty sleeping.
•
He returned to work as a school bus driver for Wodonga Charters, working a maximum of fifteen hours per week.
•
In December 2008, he suffered a knee injury while out in his boat and had to stop working. As a consequence, he had a knee replacement in February 2011 and he has since regained the full function of his knee.
•
In December 2009, he was diagnosed with breast cancer, but is in remission.
•
He continues to suffer irritability, mood disturbance, anger, agitation, insomnia, depression and anxiety and his memory and concentration are affected. He has flashbacks and nightmares about the bullying and intimidation. He attends a counsellor once a week and when he is feeling particularly bad will call the counsellor two to three times a week. He attends his general practitioner once a month.
•
He takes Cipramil, Tegretol and Valium for his injury, which give him side-effects, including increased agitation and speech disturbance.
•
Before his injury, he was active in Australian Rules Football. After the injury, he was not able to participate to the extent he previously had or with the same enthusiasm, capacity and competence. Since injuring his knee, he has not done any football training.
•
He used to go fishing regularly, but has lost interest and motivation. He no longer gardens and has become socially reclusive.
• His relationship has been affected. • He lacks motivation and despairs for the future. • He has lost a lot of physical fitness. [7] In examination-in-chief, the plaintiff amended this date to July 2003; however, from the evidence of his general practitioner and the defendant, the date on which he ceased employment with the defendant was July 2004.
The Plaintiff’s Evidence in Cross-examination
12 The plaintiff was cross-examined and gave the following pertinent evidence:
•
Prior to the injury, he worked full-time. He said he ceased work in July 2004 at the suggestion of his doctor. He went part-time when he obtained work with Wodonga Charters, which was in August 2004.
• He agreed he went fishing and had someone to fish with. •
He agreed he was stressing about his financial situation. He said this was because of what the defendant had done to him.
•
He agreed he was taken to the Albury Base Hospital with an anxiety attack and chest pains in 2000.
•
He said that his relationship with his partner broke down because of the pressure he was under from his former employer, the defendant.
•
He agreed that in July 2008 he was willing to consider increasing his work hours with his new employer.
•
He said the reason he stopped working with Wodonga Charters was because of his knee and because he could not cope emotionally with the driving.
•
He said he did not know if he would still be working with the new employer if it was not for his knee injury. He said:
“I’m saying that I carried it all – all the time I’d been gone since I was at Mylons I’ve carried this on my back. At times I’ve tried to get out of it, tried to forget about it but never forgot, it’s about how someone’s taken your livelihood away from you and how they’ve taken your – and treated you the way that they have just. Just not on. I mean I was there, I was a good driver. I was doing my right job and then I took on something that the other drivers wanted me to do and then I finished up where I am.”
•
He agreed that with his new employer he was doing a morning and evening school bus run and drove the same route each day. He agreed he was exhausted by fifteen hours a week and could not increase his hours. He said he could not drive for twenty-five or thirty hours a week because mentally he could not handle it. He said:
“I just had a good run outside the town, the same kids all the time.
They respected me and I respected them.”
•
He said he did increase his hours and drove to one of the wineries but he could not handle it; it was just too much.
•
He said he was a football trainer in the major league for ten years. He said he had to give it up because he could not handle the pressure in about 2003-2004. He then trained with the minor league. He thought he trained in 2007-2008 but resigned before he injured his knee.
•
He agreed he saw Ms Goes for treatment and now sees Ms Stackfold, a counsellor in Wodonga. He also sees Dr Karaffa, general practitioner, on a regular basis for his anxiety, medication and lack of sleep.
13 In re-examination, the plaintiff said:
•
He had a total knee replacement in February 2011 and his knee is 100 per cent better. He agreed he could drive a bus with his knee as it is.
•
He said he ceased work in July 2004 with the defendant, due to stress and anxiety.
•
He said he recovered from the anxiety attack he had before he commenced work with the defendant, because he would not have been able to get the job if he was suffering from anxiety.
•
He said he drove people around half a dozen wineries and the responsibility was something he was unable to handle.
•
When he was training in a major league, he was required to be working seven days, training five nights a week, going to the football on Saturday and doing recovery on Sunday. When he worked for the minor league, it was only one night a week and football on Saturdays. He said he derived pleasure and prestige from training and it was something that he enjoyed. He said in the minor league he could not finish quickly enough as he could not handle the job.
•
He said he had increased his attendances on the general practitioner in the last couple of months to sort out his medication, because he is deteriorating, he is not able to sleep and is having nightmares, and he is now taking Valium more often, up to four or five times a week. Previously he took Valium once a month.
Investigations
14 On 4 February 2010, a brain scan was performed which showed no significant abnormality.
The Plaintiff’s Medical Evidence
15 On 22 October 2004, Dr Victor Karaffa, general practitioner, reported to the defendant’s insurer. Dr Karaffa first saw the plaintiff on 19 August 2003, when he presented with somatic symptoms, which, after questioning, were able to be attributed to emotional stress and depression and were worse after a bad day at work. He returned eight days later with an increase in symptoms as well as increasing anger and tearfulness. He was prescribed Cipramil and when reviewed two weeks later had shown considerable improvement.
16 The plaintiff was next seen in January 2004 with a deterioration in his depression, which did not respond to an increase in medication. In March 2004, he commenced taking anti-depressants with side-effects. He returned to using Cipramil in October 2004.
17 In August 2004, the plaintiff told Dr Karaffa about his problems at work, in particular work-related pressures which had continued for over a year, and his reluctance to get involved in the WorkCover system. The plaintiff told Dr Karaffa of pressure to work when he had a valid medical certificate; being asked to drive a school bus run when his wife was critically ill in intensive care; being unable to carry out his role as occupational health and safety officer to his satisfaction. It was Dr Karaffa’s view that the plaintiff’s work situation had made a significant contribution to the development of his depressive illness. He described the plaintiff’s depression as largely reactive, which he said was unlikely to have developed if he were working in a different environment. It was Dr Karaffa’s view that the plaintiff would be able to return to his employment when there were changes in his work environment.
18 In April 2005, Dr Karaffa wrote to the insurer for the defendant and said he was treating the plaintiff for reactive depression. He said the plaintiff’s work was a significant contributing factor to his illness.
19 In September 2005, Dr Karaffa said he was seeing the plaintiff regularly for supportive counselling and continuing medication. Several changes in medication had been tried with little change in his clinical state. Further stresses had been added to his problems, with an increased financial burden since ceasing work. It was his opinion that the plaintiff could not return to work without acknowledgement of his knowledge, experience and consideration for the wellbeing of his passengers and colleagues. He did not think he could emotionally cope with a return to work with the defendant under the current management. Dr Karaffa expected that he would require ongoing supportive care to work through some of the issues present and for treatment of his depression.
20 In September 2006, Dr Karaffa said the plaintiff was working part-time, fifteen hours weekly during school terms for another employer, performing the same pre-injury duties. He believed that the plaintiff would be capable of increasing his hours of work if and when work became available. He said it would be extremely detrimental to the plaintiff’s health and wellbeing if he returned to his previous employer. He said the plaintiff was on a combination of several psycho-active medications and was intermittently receiving counselling from a psychiatric trained nurse counsellor and supportive counselling from his general practitioner. In October 2006, Dr Karaffa said he did not believe the plaintiff was able to increase his workload and did not expect that to occur in the foreseeable future.
21 In May 2008, Dr Karaffa said that the plaintiff was currently working fifteen hours per week despite the fact that his wife had died in March 2007, causing a deterioration in his depression. Dr Karaffa believed the plaintiff could increase his hours of work if they were available and the actual number of hours that he could cope with would need to be determined on a “try it and see” basis, but he thought his hours could be increased closer to full-time. He said the plaintiff continued to receive counselling and anti-depressant/anti- anxiety drugs. He said the plaintiff required supportive counselling and medication which he was likely to require for a substantial period of time.
22 Ms Eva Goes, mental health nurse with the general practitioner, confirmed that she had provided the plaintiff with psychologically focussed sessions between 15 October 2005 and 27 March 2006. During the period of her counselling, the plaintiff had obtained part-time work which initially he found challenging, but had used the psychological and physical strategies he had learnt and was enjoying his work. She anticipated that he would need further sessions as he increased his hours of work.
23 The medical records of Dr Karaffa from August 2004 to August 2010 were produced. The records confirmed that the plaintiff was treated by Dr Karaffa or Ms Goes for his mental health, and other unrelated conditions.
24 On 24 August 2004, the plaintiff was medically examined by Associate Professor George Mendelson, psychiatrist, at the request of the defendant’s insurer. The plaintiff provided a comprehensive history, including a history of his personal circumstances and medical treatment.
25 It was Professor Mendelson’s view that the plaintiff had developed manifestations of anxiousness, but he did not consider he was mentally ill. He did not consider the plaintiff had any loss of work capacity resulting from any diagnosable mental disorder or psychiatric impairment. Professor Mendelson said that the plaintiff’s anxiousness was reflective of his concern about his wife’s recent ill health and, to that extent, he said the plaintiff’s concern about his wife was a factor that exacerbates the manifestation of anxiousness.
26 On 19 July 2005, the plaintiff was medically examined by Mr Michael Epstein, psychiatrist, at the request of the plaintiff’s solicitor. It was Mr Epstein’s view that the plaintiff had developed a Chronic Adjustment Disorder with Depressed Mood and Anxiety, which appeared to come on during the course of his employment. He considered the Chronic Adjustment Disorder with Depressed Mood and Anxiety had been aggravated by his recent heart condition, but that the development of that condition had arisen from his employment. He said the plaintiff’s work capacity was nil and he could never to return to work with his former employer. His condition was not yet stable.
27 On 14 October 2010, the plaintiff consulted Dr David Weissman, psychiatrist, at the request of his solicitor.
28 Dr Weissman said there was no pre-existing psychiatric or psychological condition or impairment. He said the plaintiff’s wife’s illness and subsequent death, his breast cancer and his right knee injury were unrelated factors that represented relatively minor contributing factors to his current presentation but did not represent major or significant contributing factors to his current psychiatric condition, mental injury or psychiatric presentation. He accepted that the plaintiff developed moderately severe mixed emotional symptoms, signs and features due to his work stress, including irritability, depression, anxiety, frustration, anger and cognitive impairment problems. He diagnosed a Chronic Adjustment Disorder with Depressed, Anxious and Irritable Mood of moderate intensity or severity directly related to the circumstances and stressors of his employment. He said the plaintiff was totally incapacitated for all pre-injury duties for the foreseeable future (indefinitely). He had a partial psychiatric capacity for suitable or alternative duties in the order of fifteen hours per week, but because of the severity of his psychiatric symptoms, his age, knee, cancer and geographical factors, he had no capacity.
29 In October 2010, the plaintiff was examined by Dr Alan Jager, psychiatrist, at the request of the defendant’s solicitor. He was aware of the plaintiff’s stressors in his life; namely, his wife’s cancer and death, his right knee injury and his cancer. It was his view that the plaintiff had a Major Depressive Disorder from multiple causes. He considered him unfit for all employment. He said he had an incapacity for his pre-injury employment and a reduced capacity to undertake domestic and social activities due to the moderately severe depression. He was aware that the plaintiff was taking high dose antidepressant and mood stabilising medication. He said he would benefit from treatment from a psychiatrist.
30 In August 2011, the plaintiff was examined by Professor H Dennerstein, psychiatrist, at the request of his solicitor. She said his symptoms varied and were best described as an Adjustment Disorder with Mixed Anxiety and Depressed Mood and as a Major Depressive Disorder. This was consistent with others, in particular the Medical Panel in 2007. Professor Dennerstein said that the plaintiff had been treated for many years with a number of different psychotropic medications. He had received psychological support and continued to have counselling. His symptoms had not remitted and were unlikely to do so. He would continue to need further treatment by his general practitioner and should have monthly psychological counselling.
31 She was aware that the plaintiff was not working, having ceased driving fifteen hours a week in 2009. She said his psychological injuries prevented him from continuing with his employment as a bus driver.
The Defendant’s Medical Evidence
32 Mr Michael Duke, psychiatrist, saw the plaintiff at the request of the defendant’s insurer in July 2008. The plaintiff told Dr Duke that his mental health was variable; he suffered ongoing anger directed to his former employer and became easily upset. His sleep was variable. He was working fifteen hours per week driving buses with a new employer and he thought he had the capacity to increase his hours but did not think his boss had the capacity to offer him more hours.
33 Dr Duke diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood which was improving. In December 2008, due to stable antidepressants, a job that he enjoyed and a new relationship, he thought the plaintiff would have the capacity to increase his hours from fifteen to twenty- five hours, if offered by his employer.
34 On 12 November 2009, the plaintiff was medically examined by Dr Wendy Triggs, consultant psychiatrist, at the request of the defendant’s insurer. It was her view that the plaintiff presented without any particular signs of Mood Disorder but with the appearance of an organic brain syndrome with signs of frontal and parietal testing. She thought there was an organic brain syndrome, unrelated to his work, which may have been contributed to by undisclosed previous alcohol usage or the possibility of a multi-infarct picture (given there was a family history). She said that until a clearer diagnosis had been made, she could not determine whether there was an underlying Adjustment Disorder. She recommended that the plaintiff undergo an MRI scan of the brain and that he be assessed by a neuropsychologist. The plaintiff was referred to a neuropsychologist, Mr James Drury. He did not find any organic brain syndrome. The plaintiff was not referred back to Dr Triggs.
Credit of the Plaintiff
35 The plaintiff was consistent in his explanation of how his injury occurred and the description of his symptoms. He found the process of giving evidence distressing and became frustrated in the process. He was imprecise as to events and on occasion failed to answer questions clearly. I consider he was a witness of truth.
Analysis of the Evidence
36 Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury arising out of, or in the course, of his employment with the defendant. The majority of the medical witnesses accepted the injury was work-related. I place particular emphasis on the reports from the plaintiff’s general practitioner, who treated the plaintiff from 2003.
37 There were medical reports received from Associate Professor G Mendelson, dated August 2004 and Mr Michael Epstein, dated July 2005. Those doctors were not asked to review the plaintiff. Given the age of the reports, I am more influenced by the more up-to-date medical reports of psychiatrists, Dr Weissman, Dr Jager and Professor Dennerstein.
38 None of the psychiatrists indicated the period for which the plaintiff will require treatment or whether the plaintiff’s condition is permanent. The plaintiff has been receiving treatment for eight years in the form of medication and counselling. The current medical view (expressed by Dr Karaffa, Dr Weissman, Dr Jager and Professor Dennerstein) is that the plaintiff requires regular medical consultations and medication. Accordingly, I accept that the plaintiff’s condition is likely to continue for the foreseeable future.
39 In relation to work capacity, Dr Weissman said the plaintiff was totally and permanently incapacitated for all pre-injury duties for the foreseeable future. He considered that the plaintiff had a partial psychiatric capacity for suitable or alternative duties in the order of fifteen hours maximum per week. He said when one considered the nature, severity and extent of the plaintiff’s psychiatric symptoms, his age and the geographical factors, he had no capacity for suitable alternative duties when his entire situation and presentation was considered as a whole. Dr Jager considered the plaintiff currently unfit for all employment and Professor Dennerstein said his psychological injuries prevented him from proceeding with his employment as a bus driver.
40 The defendant submitted that based on Dr Duke’s report of 2008 the plaintiff could increase his hours from 15 to 25 hours per week, and therefore the plaintiff does not satisfy the arithmetic formula for loss of earnings. The defendant submitted that there was support for this view form the general practitioner. Both assessments were made in 2008. Dr Duke said the plaintiff’s condition was improving and he assumed improvement would continue. The plaintiff was in a job he enjoyed, he had a new relationship and his medication was stable. The evidence is that currently he is taking Valium four to five times a week, previously he took Valium once per month as well as other antidepressant medication. He is seeking treatment regularly from his general practitioner, Ms Goes (a mental health nurse) and a counsellor. He is no longer in a relationship. Further, none of the psychiatrists who saw the plaintiff recently suggested that he could work more than 15 hours, increasing to 25 hours. The plaintiff’s evidence was he could work fifteen hours per week driving the school bus but that he could not work more hours. He had attempted to work more hours on one occasion which had been unsuccessful. Accordingly, I do not accept the defendant’s submission that the plaintiff could work more than 15 increasing to 25 hours.
41 A further submission of the defendant was that there are reasons unrelated to his work which have contributed to his condition; namely, his wife’s illness and death, a heart condition; cancer of the breast, which is in remission; and a knee replacement. The plaintiff must show that work was a cause of his injury. The majority of the medical witnesses accepted that his current condition was work related. The plaintiff’s evidence was the cancer is in remission, the knee replacement was successful and he could drive a bus with his knee. The medical records have not referred to his heart condition since 2005 and his wife’s death was in 2007. Dr Weissman said the unrelated factors were minor contributing factors to his current presentation, Dr Jager said his condition was due to multiple causes and said he was unfit for all employment. Professor Dennerstein accepted his condition was work related but did not express a view as to the unrelated matters. Given the history of the unrelated factors, I accept Dr Weissman’s view that they are a minor contributing factor in the plaintiff’s presentation. Accordingly, I reject the defendant’s submission.
The Statutory Test – Loss of Earning Capacity
42 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and (b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 43 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury earnings”; and (ii) “after injury earnings”. 44 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
45 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
46 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity.
47 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) of s.134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[8]
[8] (supra) at paragraph [70]
48 The plaintiff’s current earnings from personal exertion are nil.
49 Prior to the injury, the plaintiff held down full-time employment with the defendant as a bus driver. His “without injury” earnings are as set out in the summary at Plaintiff’s Court Book 92. At its highest, his earnings were $37,969.00 gross per annum in the 2004 financial year. Sixty per cent of this figure is $22,781.00.
50 The plaintiff lost no time from his employment with the defendant until ceasing work in August 2004. He commenced alternative employment with Wodonga Charters, performing the same duties as a bus driver from August 2004. He was the only employee of this company. The position was for fifteen hours per week during school terms, forty weeks per year, and this was the only bus driving hours available to him in this position.
51 With Wodonga Charters, he earned $13,625.00 per annum until ceasing work by reason of his knee injury. At fifteen hours per week, working fifty-two weeks per year, if available, the plaintiff’s capacity would result in earnings of $17,628.00 per annum.
52 Accordingly, I find that the plaintiff satisfies the arithmetic formula established by the Act.
53 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g) of the Act.
54 The medical evidence did not suggest that rehabilitation was necessary and appropriate.
55 I am satisfied that the plaintiff has no prospect of retraining and re-education that would enhance his earning capacity. Therefore, I accept that the plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act.
56 In conclusion the plaintiff has sustained an injury within the meaning of s.134AB of the Act and satisfies the forty per cent requirement.
57 Having made these findings, applying Advanced Wire & Cable Pty Ltd& Anor v Abdulle,[9] I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of his employment with the defendant after October 1999.
[9] [2009] VSCA 170
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