De Bono v Victorian Workcover Authority
[2019] VSCA 85
•12 April 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0102
| BRYAN PHILLIP DE BONO | Applicant |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Respondent |
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| JUDGES: | PRIEST, BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 April 2019 |
| DATE OF JUDGMENT: | 12 April 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 85 |
| JUDGMENT APPEALED FROM: | [2018] VCC 997 (Judge Misso) |
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ACCIDENT COMPENSATION – Appeal – Workplace injury – Serious injury application – Loss of earning capacity – Whether loss of earning capacity consequences were at least very considerable – Whether worker suffered permanent loss of earning capacity of 40 per cent or more – Relevance of failure to undertake rehabilitation or retraining – Judge’s reasons – Whether judge’s reasons inadequate – Reasons inadequate – Appeal allowed – Matter remitted for rehearing – Accident Compensation Act 1985, ss 134AB(16)(b), (17) and 38(e)-(g).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A D Clements QC with Mr C A Sidebottom | Hounslow Lawyers |
| For the Respondent | Mr S A O’Meara QC with Mr R Kumar | Minter Ellison |
PRIEST JA
BEACH JA
McLEISH JA:
On 12 May 2011, the applicant suffered an injury to his lower back as a result of lifting a 25 kilogram bag of salt in the course of his employment.
By an originating motion filed in the County Court on 15 January 2018, the applicant sought leave, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘the Act’) to commence a proceeding at common law claiming damages in respect of his lower back injury. The applicant relied upon paragraph (a) of the definition of serious injury in s 134AB(37) of the Act — namely, ‘permanent serious impairment or loss of a body function’.
The application was heard by Judge Misso on 15 June 2018. At the hearing, the respondent conceded that the applicant had suffered a compensable injury to his lower back and that the pain and suffering consequences of the impairment of function of his lower back were serious. The issue before the judge was whether the loss of earning capacity consequences were serious, and whether the applicant should thus be given leave to commence common law proceedings for pecuniary loss damages in addition to pain and suffering damages.
On 29 June 2018, the judge delivered reasons for judgment[1] rejecting the applicant’s application to commence a common law proceeding claiming pecuniary loss damages. On 1 August 2018, the judge made an order granting the applicant leave to bring a common law proceeding to recover damages for pain and suffering only.
[1]De Bono v Victorian WorkCover Authority [2018] VCC 997 (‘Reasons’).
The applicant now seeks leave to appeal against the judge’s order refusing him leave to commence a proceeding claiming pecuniary loss damages. The applicant’s proposed grounds of appeal are as follows:
1.The judge erred in law in failing to disclose a path of reasoning to support his finding that notwithstanding his Honour accepted that the applicant had an intolerance to driving sufficient to preclude him from being an Uber driver, he nonetheless had a capacity to be a courier.
2.The judge erred in law in failing to disclose a path of reasoning to support his finding that notwithstanding his Honour accepted that applicant had an intolerance to levels of sitting, standing, walking and driving, he nonetheless had a capacity to be a car park attendant.
3.The judge erred in law in that, having found the applicant had the capacity to be a courier or car park attendant, he failed to determine whether that capacity was for full or part time employment.
4.The judge erred in law by failing to determine the gross income that the applicant was earning or was capable of earning from personal exertion or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the applicant’s earning capacity had the injury not occurred as required by s 134AB(38)(f)(ii) of the Act.
5.The judge erred in law by failing to assess and determine the amount that the applicant was earning or was capable of earning in suitable employment as at the date of the hearing for the purposes of the comparison required by s 134AB(38)(e), (f) and (g) of the Act.
6.If his Honour concluded that the applicant’s pecuniary loss application should fail on the basis that the applicant’s pecuniary loss consequences could not be described as being ‘at least very considerable’, his Honour failed to provide adequate reasons for reaching that conclusion.[2]
[2]While the application for leave to appeal contained grounds 1 to 5, ground 6 was added on the application of the applicant during the course of oral argument. Commendably, the respondent did not resist the application to add ground 6.
The evidence generally
On the hearing of the application in the County Court, the applicant relied upon two affidavits that he swore on 4 August 2017 and 14 June 2018. The applicant was the only witness who gave evidence at the hearing. In evidence, the applicant adopted his affidavits, was cross-examined and then re-examined. During the course of the cross-examination, nine minutes of film of the applicant was played.
The balance of the evidence was documentary, largely consisting of medical reports, medical certificates, vocational assessment reports and surveillance material.
Background
The applicant was born in December 1980. He was 30 at the time of injury, and 37 at the time of the hearing of his application. He completed year 8 of secondary schooling, but left school part way through year 9.
After leaving school, the applicant commenced a plumbing apprenticeship. He did not complete his apprenticeship, leaving after approximately two years to try and earn better money. He subsequently worked in construction, as a forklift driver and undertook manual work for various recruitment agencies.
On the day he suffered his injury, the applicant was employed by a recruitment agency, Baytech Industrial (Vic) Pty Ltd, as a labourer/process worker at premises controlled by a host employer, Saizeriya Australia Pty Ltd. As we have already said, the applicant’s injury occurred when he lifted a 25 kilogram bag of salt.
Although he was assessed in August 2011 by a neurosurgeon, Mr Patrick Lo, the applicant’s treatment has been conservative and has included hydrotherapy, a TENS machine and medication. A number of radiological investigations were reported to identify pathology at the L5/Sl level of his spine, with involvement of the Sl nerve root.
The applicant was initially off work from the date of the incident up until 4 April 2012. On that day, he returned to work on restricted hours and duties. The applicant initially returned working four hours per week, and he gradually increased his hours up to 12 hours per week on light duties. The applicant subsequently ceased work again in or about June 2012, and he has not returned to work since that time.
At the time he suffered injury, the applicant was employed on a casual basis. He worked on average 27.58 hours per week and he was paid $24.06 per hour. His average pre-injury earnings were approximately $663.57 gross per week. During the hearing before the judge, the respondent admitted that, at all relevant times, full time work was available for the applicant.
At the time of the incident the applicant was a single parent and had custody of his two young daughters (who were aged 10 and 15 years at the time of the hearing). He had had custody of his daughters since 2008. The applicant’s evidence was that at the time of the incident he was fitting his work around his parenting commitments, but that he had the intention of working greater hours once his children were older and more independent. He said that when they were self-sufficient, he would get into full time work.
The applicant’s evidence was that he was unable to return to work. A number of doctors and other health and vocational professionals had commented upon his capacity for suitable employment, including his capacity to undergo rehabilitation and retraining. The judge described the relevant parts of this evidence in his reasons for judgment. In this Court, the parties accepted the accuracy of the judge’s recitation of that evidence.
The application before the judge
At the commencement of the hearing, counsel for the applicant handed to the judge a document ‘Earning Capacity Summary’ (‘the earning capacity document’) as follows:
EARNING CAPACITY SUMMARY
Pre Injury Earnings $663.57 ·Based on $24.06 per hour x 27.58 hours per week
·Source — Claim form & Employer Claim Report
Without Injury Earning Capacity $ 914.28 ·Based on $24.06 per hour x 38 hours per week
·But for injury the Plaintiff had the capacity to work full time but due to single parent commitments he was working reduced hours prior to his injury.
60% Figure for Statutory Test $548.56 ·Based on 60% of $914.28 per week
With Injury Earnings $NIL ·Plaintiff submits that the Plaintiff has no realistic capacity for suitable employment — see Horsley, O’Brien, Hartley and Gurusinghe.
Defendant’s Identified Suitable Employment Options
JOB
Weekly Earnings
Hourly Rate
20 Hours per week
Uber Driver
$ 984
$25.89
$517.8
Courier (Light)
$1,138
$29.95
$599
Road Traffic Controller
$894
$23.53
$470.6
Car Park Attendant
$877
$23.08
$461.6
The purpose of the earning capacity document was to summarise the evidence upon which the calculation referred to in s 134AB(38)(e)–(f) of the Act could be performed. The references in the document to figures calculated for 20 hours per week were said to be supported by the opinion of Dr Yong that the applicant had a capacity to perform particular work for that number of hours per week.
While appropriate figures for the earnings of a road traffic controller were provided in the document, the applicant’s case was that this job should not be considered as Dr Yong had excluded it as a suitable employment option.
The applicant’s counsel opened the case to the judge on the basis that ‘the real battleground’ was whether the applicant’s without injury earning capacity as measured under s 134AB(38)(f)(ii) was $914.28 per week or $663.57 per week. The applicant contended that the correct figure was $914.28 gross per week. The respondent’s counsel in opening, however, said that the correct figure was $663.57.
As with their opening addresses, in final address, the parties concentrated on the evidence so far as it related to the applicant’s without injury earning capacity and his with injury earning capacity (that is, the measurement of the figures referred to in s 134AB(38)(f)(i) and (ii)). In final address, the parties also made submissions about the operation of s 134AB(38)(g) of the Act.
In his final address, the applicant submitted that he satisfied the 40 per cent loss of earning capacity requirement on a number of different bases. The applicant’s primary case was that even though he was only working 28 hours per week at the time he suffered injury, the figure that most fairly reflected his earning capacity had the injury not occurred during the period within three years before and three years after his injury should be calculated on the basis that he had a capacity to work 38 hours per week — thus the figure required to be calculated by s 134AB(38)(f)(ii) should be based upon a weekly gross amount of $914.28, rather than $663.57.
The respondent contested this submission before the judge, submitting that the applicant’s evidence was that he would continue to work the more limited hours he was working at the time he suffered injury (27.58 hours per week) until his children were older and more independent.
As a fall-back position, the applicant submitted that even if the judge accepted that the calculation of the without injury earning capacity should be based upon a 28 hour working week, the applicant had ‘no work capacity’ and thus ‘still passe[d] the test’.
As a further fall-back position, the applicant submitted:
It is only if your Honour accepts what is really the most optimistic view for the defendant of the 20 hours that one needs to look at the jobs, assuming your Honour accepts that the capacity, properly analysed, is 38 hours, accordingly a bit over $900 a week.
Judge’s reasons
The judge commenced his reasons noting that the respondent had conceded that the applicant suffered a compensable injury to his lower back, and that the pain and suffering consequences of this injury were serious. The judge identified the issue that remained to be resolved as being whether the loss of earning capacity consequences of the applicant’s impairment were serious.[3]
[3]Reasons [2].
The judge then described the circumstances of the applicant’s injury,[4] the applicant’s medical treatment[5] and the medico-legal evidence.[6]
[4]Ibid [4]–[5].
[5]Ibid [6]–[15].
[6]Ibid [16]–[17].
Under the heading ‘The occupational evidence’, the judge summarised the evidence of two occupational physicians, Dr Horsley and Dr Yong, and the evidence of a vocational assessor, Mr Hartley.[7] The judge summarised this evidence as follows:
[7]Ibid [19]–[27].
The plaintiff was examined by Dr Horsley, occupational physician, on 29 March 2018. The plaintiff told Dr Horsley that his current symptoms are:
· Chronic lower back pain exacerbated by activities such as vacuuming, driving long distances and ample longer walking.
· He needs to lie down a lot of the day to relieve the pain.
· He experiences pain in both legs which radiates down the lateral aspect of both thighs, into the calves and feet. The pain in the right leg can last for a few hours. He experiences paraesthesia intermittently through the whole of his left foot and a feeling of swelling in both feet.
· The pain is four to five out of ten and can increase to ten out of ten.
· Coughing and sneezing in cold weather can exacerbate the pain.
· He sleeps poorly.
· His sitting tolerance is thirty minutes. His static standing tolerance can be five to ten minutes and as much as thirty to forty minutes. His walking tolerance is five to ten minutes and can be up to twenty to thirty minutes. His dynamic standing tolerance is five to ten minutes and can be up to twenty to thirty minutes. His driving tolerance is forty minutes in an automatic vehicle.
After examining the plaintiff and the relevant radiology, Dr Horsley considered that the plaintiff had suffered a significant injury to his lumbar spine. She appears to have accepted a diagnosis consistent with disc prolapse at L5-S1 demonstrated on the MRI scans.
Dr Horsley considered that the plaintiff’s opportunities for redeployment in the workforce were limited, and in that respect, she referred to his work history, literacy skills, limitations on being able to pursue retraining and the disadvantage that he laboured under by reason of his limited education. She also considered the report of Vocational Directions Pty Ltd dated 21 October 2017 which she summarised, noting that the author of that report did not consider that the plaintiff had any demonstrable vocational skills or experience in a wide range of industries.
Dr Horsley considered what work restrictions she would place upon him and his functional tolerances. The thrust of her opinion is that the plaintiff presents as a poor prospect of being able to return to alternative or suitable employment. She considered that whether he could or not would depend on formal literacy and numeracy assessments to determine whether there was a possibility that he could upgrade his skills to a vocational level which would improve his vocational options.
Mr Hartley, vocational assessor, interviewed the plaintiff on 30 June 2017 for the purpose of undertaking a vocational assessment. In a very lengthy report (16 pages excluding his CV) dated 21 October 2017, he considered the plaintiff’s medical treatment, general functioning, vocational skills, transferable skills and ultimate employability. He noted that the plaintiff had not participated in a multidisciplinary rehabilitation program. He considered that the plaintiff needed vocational counselling, and educational/retraining potential assessment, and the provision of appropriate retraining. He added that he did not consider that the plaintiff, if left to his own devices, was capable of returning to the workforce.
Dr Yong, occupational physician, examined the plaintiff on 4 April 2018. He undertook a similar process as was undertaken by Dr Horsley, but did not obtain as detailed a history of the plaintiff’s presenting complaints as Dr Horsley. However, he appears to have been armed with sufficient instructions to properly understand the nature and extent of the plaintiff’s lower back injury and the manner in which the plaintiff says he has been affected by that injury. The plaintiff informed him that he could sit for twenty minutes, stand for ten minutes, walk for twenty minutes and drive for ten to twenty minutes, although on the day of the assessment, he drove for forty minutes with a break.
Dr Yong appears to accept that the plaintiff suffered an injury to his lower back, demonstrated on the MRI scans. He referred to his diagnosis as lumbar dysfunction with radicular symptoms from an initial discal injury. He said that he had succeeded in placing workers with a similar injury back into the workforce.
In a supplementary report, Dr Yong was asked to consider whether the plaintiff could work as an Uber driver, courier, road traffic controller or as a car park attendant. Those jobs were referred to in a report of CoWork Pty Ltd dated 21 May 2018 (‘the CoWork report’). He considered each job in turn:
· Uber driver — despite the plaintiff’s limited driving tolerance, he considered that he was capable of using a mobile computer system and radio network; picking up passengers; assisting passengers with luggage and collecting fares and processing payments. Initially, he considered that the plaintiff could commence working two hours, two days per week and could progressively increase his hours on a graduated basis with a reassessment after three or four months.
· Courier — he considered that the plaintiff could perform the tasks of a courier which are essentially picking up and delivering items using a vehicle.
· Road Traffic Controller — he did not consider it was suitable because of the need to handle signage or bollards, and to stand for extended periods of time.
· Car Park Attendant — he considered that because the plaintiff would be able to rotate posture through sitting, standing and walking, that he could undertake a return to work program working four shifts for three days a week. He would then need to be reassessed.
However, Dr Yong considered that the plaintiff would need to participate in an activity-based rehabilitation program to achieve twenty hours of work a week on a graduated basis with a view to increasing his hours of work. He added that given the diagnosis, clinical course and the chronicity of the plaintiff’s lower back condition, that it was unlikely that the plaintiff would be able to return to close to his full pre-injury hours.[8]
[8]Ibid.
The judge then dealt with the question of whether the applicant had the capacity to return to identified jobs if he engaged in rehabilitation and/or retraining.[9] The judge noted that the applicant’s evidence was that he had ‘an actively symptomatic lower back of such a degree that he cannot work’, and that ‘because of his limited education he cannot retrain in any material sense’.[10]
[9]Ibid [28]–[40].
[10]Ibid [30].
The judge accepted that the applicant had had little formal education or vocational training in the past, and that his work history demonstrated that he had largely pursued labouring-type work which involved ‘the need for sound bodily integrity to undertake physical work’.[11]
[11]Ibid [32].
The judge noted the applicant’s evidence that he considered that the real impediment to him undertaking any retraining was his ‘lack of computer skills, general lack of education and intellectual ability’.[12] The judge referred to the applicant’s evidence that he had been a labourer all his life and that he had not acquired any skills except for those needed to be a labourer.[13]
[12]Ibid [33].
[13]Ibid.
The judge found, however, that the jobs which Dr Yong had identified as suitable were not jobs that required ‘significant retraining in a technical sense’.[14] As the judge put it:
The particular physical and intellectual requirements of each of those jobs has been identified in the CoWork report. I am left with the impression that what retraining would be required would be more the acquisition of familiarity with the jobs rather than the acquisition of any intellectual know-how. They appear to me to be relatively straightforward jobs.[15]
[14]Ibid [34].
[15]Ibid.
The judge accepted the applicant’s evidence that he had an intolerance to levels of sitting, standing, walking and driving. The judge accepted that the applicant’s intolerance to driving would probably preclude him from being an Uber driver ‘because of the necessity to sit for significant periods of time whilst carrying passengers from one destination to another, and perhaps the need to assist with luggage in and out of the boot of the car’. The judge said, however, that this left ‘courier and car park attendant as the more viable jobs consistent with alternative or suitable employment’.[16]
[16]Ibid [35].
The judge then dealt further with the issue of rehabilitation and retraining, saying:
There is a significant body of evidence capable of leading to a conclusion that there is some prospect that if the plaintiff undertook rehabilitation and retraining, that he would identify a capacity for alternative or suitable employment consistent with courier and car park attendant jobs. That appears to me to be consistent with the opinion of Dr Yong, and consistent with an identifiable theme in the majority of the medical evidence that rehabilitation and retraining, and at least retraining, is something which the plaintiff has needed to pursue.
The plaintiff was cross-examined about his efforts to obtain rehabilitation or retraining. I think it is fair to say that he has made little or no effort to obtain rehabilitation or retraining nor any serious efforts to look for alternative or suitable employment. There was some evidence concerning his relationship with Centrelink and a referral to a job agency which deals with disabled people. He has not applied for any retraining through Centrelink or through the WorkCover system.
The plaintiff appeared to me to rely upon his relationship with Centrelink as if it represented some effort on his part to find work, but it was vague and was left in a most unsatisfactory state. It simply does not demonstrate to me what efforts he has made through Centrelink or any job agency to identify what rehabilitation and retraining he needs and for what purpose, in the sense of the ultimate pursuit of alternative or suitable employment.
It was in the context of what the defendant submitted the plaintiff has not done that it submitted that the plaintiff has not discharged the onus he bears under s 134AB(38)(g) which provides that unless the plaintiff has taken the steps referred to, then he has not established the loss of earning capacity required by s 134AB(38)(b).
I do not accept the plaintiff’s evidence that he cannot acquire the skills necessary to familiarise himself with the two jobs which he appears to have the capacity to undertake. I accept that the preponderance of the medical evidence demonstrates that retraining is something which the plaintiff should have pursued, and should pursue now, which may well put him in a better position to tackle alternative or suitable employment.[17]
[17]Ibid [36]–[40].
The judge then said:
Before referring to my final disposition of this part of the plaintiff’s application there are two matters which I need to deal with.[18]
[18]Ibid [41].
The two matters the judge then dealt with were the film that had been put to the applicant in cross-examination, and some evidence and submissions about the applicant’s use of cannabis.
The judge described the film[19] and noted the respondent’s submission that the film ‘demonstrated that [the applicant was] capable of standing, walking and otherwise moving with some degree of freedom’.[20] The judge agreed that that is what he had seen on the film. He said, however, that it was not possible to draw any adverse conclusions to the applicant from the film, the film merely showing the applicant doing things ‘within his stated standing and walking tolerances’.[21]
[19]Ibid [42]–[45].
[20]Ibid [46].
[21]Ibid.
The judge then described the evidence about the applicant’s cannabis use.[22] Having regard to the issues in this Court, it is not necessary to summarise that aspect of his Honour’s reasons.
[22]Ibid [47]–[50].
Immediately following the sections in his reasons dealing with the film and the cannabis issues, under the heading ‘Conclusion’, the judge said:
It is for these reasons that I am not persuaded that the plaintiff has discharged the onus he bears to establish the loss of earning capacity that he claims.[23]
[23]Ibid [51].
Parties’ contentions
The applicant’s contentions centred on the adequacy of the judge’s reasons. Each of his grounds of appeal made particular complaints about the adequacy of his Honour’s reasons or a failure to make a finding that was said to be required. Notwithstanding the terms of his grounds of appeal, the applicant also sought, as part of his argument, to contend that particular findings as to his capacity to engage in particular employment were erroneous.
Central to the applicant’s complaints, however, were the applicant’s contentions that the judge failed to address or deal with issues relating to the question of whether the applicant had suffered a loss of earning capacity of 40 per cent or more as measured in accordance with s 134AB(38)(f) of the Act.
The respondent, on the other hand, contended that there was no inadequacy in the judge’s reasons. It submitted that, in context, the reasons adequately disclosed why the applicant failed to establish that his lower back injury had caused loss of earning capacity consequences that were serious.
In support of its contentions, the respondent noted that the applicant was required to establish that:
(a) his loss of earning capacity consequences when judged by comparison with other cases in the range of possible impairments or losses of a body function, were fairly described as being more than significant or as being at least very considerable; and
(b) his loss of earning capacity was 40 per centum or more; and
(c) he would continue to permanently have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.
The respondent submitted that the applicant failed to discharge his onus, in circumstances where the judge was not satisfied that the applicant had made reasonable attempts to participate in rehabilitation or retraining, ‘which activities may well have put him in a better position to tackle alternative or suitable employment’. It was thus submitted that it was unnecessary for the judge to make the particular findings which the applicant says ought to have been made before any ruling was made against him in relation to the issue of pecuniary loss.
The respondent also submitted that when one examined the judge’s findings that were made, those findings led to only one conclusion — namely that the 40 per cent requirement set out s 134AB(38)(e) and (f) of the Act was not met.
Analysis
Section 134AB(17) of the Act provides that a worker who satisfies sub-paragraph (i) of sub-section (38)(b) but not sub-paragraph (ii) of that sub-section, is entitled to bring proceedings in accordance with sub-section (16)(b) for the recovery of damages for pain and suffering only. Sub-paragraph (ii) of sub-section (38)(b) requires a comparison between the consequences of an impairment with respect to loss of earning capacity with other cases in the range of possible impairments. Sub-section (38)(c) requires the relevant loss of earning capacity consequence, ‘when judged by comparison with other cases in the range of possible impairments or losses …, [to be] fairly described as being more than significant or marked, and as being at least very considerable’.
Section 134AB(38)(e) imposes an additional requirement before leave can be given to commence a proceeding for pecuniary loss damages. The additional requirement is that the worker must establish a permanent loss of earning capacity of 40 per centum or more as measured in accordance with sub-section (38)(f).
As the respondent correctly submitted, in order to succeed in his application for leave to commence a proceeding claiming pecuniary loss damages, the applicant had to establish that:
(d) his loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, were fairly described as being at least very considerable; and
(e) he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s 134AB(38)(f); and
(f) he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.
A failure by the applicant to establish any one of these three matters would, by the terms of the Act, require the dismissal of his application to commence a proceeding claiming damages for pecuniary loss.
The judge, however, determined that the applicant’s claim should fail because he was not persuaded that the applicant had ‘discharged the onus he bears to establish the loss of earning capacity he claims’.[24] There are a number of potential problems with this conclusion:
[24]Ibid [51].
(1) The judge did not in terms say that the applicant suffered no loss of earning capacity consequences as a result of his injury. Indeed, it is difficult to see how such a finding could have been open on the evidence — whatever ultimate assessment one might make of the applicant’s loss of earning capacity consequences.
(2) On the assumption that the judge accepted that the applicant suffered some loss of earning capacity consequences as a result of his injury, the judge does not appear to have analysed those consequences as required by ss 134AB(38)(b) and (c) — namely by comparing those consequences with other cases in the range of possible impairments or losses of a body function to determine whether they were at least very considerable.
(3) The judge did not engage with any of the evidence or arguments concerning the assessment and measurement of the applicant’s loss of earning capacity as required by, and described in, ss 134AB(38)(e) and (f).
(4) In saying that he was not persuaded that the applicant had discharged the onus he bore ‘to establish the loss of earning capacity that he claims’, the judge plainly rejected the applicant’s claim that he was totally incapacitated for employment. It is unclear, however, whether the judge considered the alternative positions advanced by the applicant’s counsel in final address relating to the applicant’s inability to work more than 20 hours per week.
Putting to one side the cases where a worker is simply not believed by the judge in relation to his or her evidence about consequences, ordinarily one would expect a judge who finds against a worker on the issue of whether the worker should have leave to commence a proceeding claiming pecuniary loss damages, to identify the statutory requirement or requirements that the worker failed to establish.
There will be cases where a worker fails to establish that, when judged by comparison with other cases, his or her loss of earning capacity consequences are at least very considerable. There will be other cases where a worker may fail at the second stage, namely, establishing the 40 per cent loss of earning capacity as measured in accordance with the Act. In each such case, the losing worker should know, and be able to discern from the judge’s reasons for judgment, the basis (or bases) upon which his or her claim was lost.
In some cases, perhaps many cases, it may be necessary for a judge to make some assessment of the financial value of the earning capacity lost in order to determine whether the loss of earning capacity consequences satisfy the ‘at least very considerable’ test.[25] That is not to say that there cannot be cases where a worker will fail at the first stage (not ‘at least very considerable’) without the need for the judge to then engage in the measuring exercise required at the second stage of the analysis (40 per centum or more).
[25]That does not necessarily mean that such an assessment must be done in accordance with s 134AB(38)(f). As has been said before, the measurement required to be performed in accordance with s 124AB(38)(f) does not involve any determination of the actual loss of earning capacity sustained by a worker: see Acir v Frosster Pty Ltd [2009] VSC 454 [171]; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 [71].
If the judge concluded that the applicant’s pecuniary loss application failed because the pecuniary loss consequences could not be described as being ‘at least very considerable’, then his Honour did not give any express reasons for that conclusion. The judge did, however, appear to accept that s 134AB(38)(g):
provides that unless the plaintiff has taken the steps referred to then he has not established the loss of earning capacity required by s 134AB(38)(b).[26]
[26]Ibid [39].
Attempting to describe the way in which s 134AB(38)(g) operates is not without difficulty. The section provides:
For the purposes of the assessment of serious injury in accordance with sub-sections (16) and (19) –
(g)a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
In assessing serious injury, paragraph (g) directs the Court to bring into account the possibility of rehabilitation or retraining.[27] Moreover, the section provides that, in assessing the amount a worker is capable of earning in suitable employment, the Court is required to take into account what the worker would have been able to earn if he made reasonable attempts at rehabilitation and retraining.[28] The section does not, however, provide that unless a worker has taken the steps referred to in it then he or she has ‘not established the loss of earning capacity required by s 134AB(38)(b)’.[29]
[27]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 637 [29].
[28]Weldemichael v I D Sales & Repairs Pty Ltd [2019] VSCA 68 [74].
[29]Cf Reasons [39].
While there was a recitation in the judge’s reasons of some of the evidence about the duties associated with the various positions that were suggested to be suitable for the applicant (Uber driver, courier, road traffic controller and car park attendant), at no stage did the judge conduct any real analysis of this evidence – either generally, or by reference to the relevant provisions in s 134AB(38) of the Act. Ultimately the judge concluded:
·any retraining that the applicant required would be no more than that required to become familiar with the relevant jobs (rather than the acquisition of any intellectual know how);
·the applicant’s intolerance to levels of sitting, standing, walking and driving would probably preclude him from being an Uber driver, leaving the jobs of courier and car park attendant ‘as the more viable jobs consistent with alternative or suitable employment’.
Without some more detailed analysis, however, there is force in the applicant’s complaint that the applicant is left to speculate about why the judge concluded that the jobs of courier and car park attendant were suitable. The same can also be said in respect of any finding the judge made (if he made one) that the applicant could perform these jobs for more than 20 hours per week.
In a careful and detailed argument on behalf of the respondent, Mr O’Meara QC sought to persuade us that assuming everything in the applicant’s favour (including the acceptance of the applicant’s without injury earning capacity figure of $914.28 per week) on the evidence, and on those findings made and set out by the judge in his reasons, the applicant did not satisfy the 40 per cent loss of earning capacity requirement on any view of matters about which it is now said the reasons were inadequate.
The difficulty with that argument is that it relies, at least in part, upon an acceptance of conclusions made by the judge that are not adequately explained by his Honour. For example, why the applicant might be fit for employment as a courier driver for 20 or more hours per week, and why the applicant might be fit for employment as a car park attendant for a period in excess of 23 to 24 hours per week.
Moreover, the respondent’s argument should also be rejected in the circumstances of this case as acceptance of it would result in the upholding of a decision adverse to the applicant when the decision made by the judge does not enable the applicant to know whether he lost his case because the comparison the judge was required to perform did not disclose that his loss of earning capacity consequences were ‘at least very considerable’, or because he did not satisfy the 40 per cent test, or because of some incorrect understanding by the judge about the operation of s 134AB(38)(g), or on some other basis.
With great respect to the judge, his reasons simply do not disclose a path of reasoning enabling the applicant to know why his claim was rejected.
Conclusion
For the reasons given above, the applicant has established each of his proposed grounds of appeal. Accordingly, there should be a grant of leave to appeal, the appeal should be allowed and the decision of the judge not to grant the applicant leave to commence a proceeding claiming pecuniary loss damages should be set aside.
The question remains whether we should attempt to determine the application ourselves or remit the matter to the County Court. We have not had the benefit of seeing the applicant. The applicant’s credit was, to some extent, in issue before the judge. In the circumstances, we do not think it appropriate for us to attempt to re-determine the applicant’s application. The matter must be remitted for rehearing and determination, by a different judge, in accordance with these reasons.
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