Dhillon v Victorian WorkCover Authority
[2022] VCC 1809
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-00884
| AMRITPAL SINGH DHILLON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | Her Honour Judge Clayton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 October 2022 | |
DATE OF JUDGMENT: | 28 November 2022 | |
CASE MAY BE CITED AS: | Dhillon v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1809 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury leave application – pain and suffering – loss of earning capacity – spinal injury – secondary psychiatric condition – credibility of plaintiff – subsequent intervening event – whether Jones v Dunkel inference arises by failure to obtain opinion report from neurosurgeon
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Altona Bus Lines v Lococo [2002] VSCA 159; AG Staff Pty Limited v Filipowicz; Arnold Ribbon Co Pty Ltd (Trading as Arnold Webbing Australia) v Filipowicz [2012] VSCA 60; Jones v Dunkel [1959] 101 CLR 298
Judgment: Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr B Hill | Shine Lawyers Pty Ltd |
| For the Defendant | Mr J Batten | Lander & Rogers |
HER HONOUR:
1The plaintiff, Mr Amritpal Singh Dhillon, makes application pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for leave to bring common law proceedings for pain and suffering and loss of earning capacity in respect of a spinal injury caused by his employment at Steinhoff Bedding Australia Pty Ltd (“Steinhoff Bedding”).
2Mr Dhillon relies on paragraph (a) of the definition of “serious injury” in s325 of the Act, which defines a serious injury to be a “permanent serious impairment or loss of a body function”. At the hearing of the proceeding, the plaintiff informed the Court that he was no longer pursuing a claim in relation to psychiatric injury.
3Section 325(2) of the Act provides that Mr Dhillon must establish his pain and suffering consequence and loss of earning capacity consequence, as “more than significant or marked” and as being “at least very considerable” when judged by comparison with other cases in the range of possible impairments or losses of a body function.
4There is no dispute that Mr Dhillon suffered an organic injury on 3 February 2015 which, for the purposes of this application, the defendant accepts arose in the course of Mr Dhillon’s employment.
5There are two issues in this case. The first is whether the incident caused Mr Dhillon’s current impairment. The defendant says there was a subsequent intervening event on 3 February 2016 which caused the plaintiff an injury. The consequences of the subsequent injury cannot be aggregated with the consequences of the claimed injury.[1] The defendant also says there is a non-organic component of Mr Dhillon’s psychiatric condition, which must be disentangled when considering the consequences of the physical injury. The defendant concedes that if the Court does not accept there was a second incident productive of injury, the plaintiff would meet the threshold for a serious injury.
6The second issue is the plaintiff’s current earning capacity. A court must not grant a worker leave to bring proceedings for a loss of earning capacity unless the worker can establish a loss of earning capacity of 40 per cent or more when compared with the worker’s “without injury” earning capacity.[2] The defendant says the plaintiff retains a working capacity which does not meet this test.
7Mr Dhillon attended in person and was cross-examined. Mr Dhillon swore four affidavits[3] He also relied on affidavits from his wife, Gurmit Dhillon;[4] his son Ashneet Dhillon,[5] and a friend, Nirmal Maan.[6] No medical practitioner was required for cross-examination.
8I have considered all the material tendered but will refer to it only to the extent necessary.
9For the reasons set out below I am satisfied the plaintiff has suffered a serious injury being impairment to his spine, and has a loss of earning capacity of 40 per cent or more when assessed against his “without injury” earning capacity.
[1]Altona Bus Lines v Lococo [2002] VSCA 159
[2]Section 325(2)(f) of the Act
[3]Plaintiff’s Court Book (“PCB”) 11-48
[4] PCB 49-51
[5] PCB 52-54
[6] PCB 55-56
Background
1Mr Dhillon was born in India in 1975 and is 47 years old. He is married with a daughter aged 21 and a son aged 15. Mr Dhillon completed his high school education in India, and worked on a farm and as a truck driver for about 12 years.
2Mr Dhillon migrated to Australia with his wife in 2008. His children subsequently migrated to Australia in 2017. After arriving in Australia, Mr Dhillon worked for a number of cleaning businesses before commencing employment with Steinhoff Bedding. Mr Dhillon says he has very limited English language skills, and cannot read or write in English. He has attended English classes at the Australian Migration Education Service.
3At the time of the hearing, Mr Dhillon and his wife owned three properties in Narre Warren South, Berwick and Melton.
Injury and treatment
4Mr Dhillon commenced his employment at Steinhoff Bedding on 20 December 2013. Mr Dhillon was employed full-time as a production assistant, which involves lifting, loading, unloading and stacking mattresses in a warehouse in Moorabbin.
5On 3 February 2015, Mr Dhillon suffered an injury to his lower back. At the time, Mr Dhillon was working with a colleague to stack spring bed bases. The work required him to lift the spring bed bases above head height. Each spring base weighed approximately 30kg to 40kg. As Mr Dhillon lifted one base over his head, he felt an onset of severe back pain radiating down his left leg.
6Mr Dhillon stopped working at 12pm and reported his injury to the warehouse manager. He was taken to Medical One in Moorabbin by a colleague, and was thereafter transported to Monash Medical Centre in Clayton by ambulance. Mr Dhillon was admitted to Monash Medical Centre and stayed overnight.
7Mr Dhillon attended his general practitioner, Dr Jabeen Syeda, at Family Medical Practice in Springvale a few days after discharge.
8On 9 February 2015, Mr Dhillon had an MRI of his lumbar spine, which revealed a large broad-based disc bulge at the L3-4 level of his lumbar spine. The disc bulge was compressing the L4 nerve root.[7]
[7]PCB 61
9Mr Dhillon returned to work on 17 March 2015 on modified light duties and part-time hours.
10On 26 March 2015, Mr Dhillon commenced physiotherapy treatment with Mr Brendan Dax in North Dandenong.[8]
[8]PCB 109
11On 4 June 2015, Mr Dhillon’s general practitioner, Mr Syeda, referred the plaintiff to neurosurgeon, Mr Yagnesh Vellore, for a surgical opinion.[9]
[9]PCB 65
12Mr Dhillon continued to increase his work hours gradually. By about December 2015 he was back to nearly normal hours. He says he was encouraged to test his back by increasing the loads he was lifting. This additional exertion caused his condition to relapse and his pain to worsen.
13As a result of his worsening back pain, Mr Dhillon was referred for another MRI scan of his lower back on 24 February 2016. The MRI revealed that he had sustained a large broad-based disc bulge at L3-4 which resulted in moderate central canal stenosis and compression of L4 nerve roots.[10]
[10]PCB 62
14On 24 May 2016, Mr Dhillon attended Valley Private Hospital and underwent lower back surgery performed by Mr Vellore, being a left L3-4 laminectomy, microdiscectomy and rhizolysis. He says that his back pain worsened after the surgery.[11] When he returned for further assessment, Mr Vellore recommended he have a spinal fusion. Mr Dhillon says he was not keen to have this surgery because, “I had not had a good result from the first surgical procedure”.[12]
[11]PCB 15
[12]PCB 15
15Mr Dhillon returned to Mr Dax for further physiotherapy treatment in July 2015 after his back surgery. He visited Mr Dax twice a week until the WorkCover insurer terminated payment for his treatment on 9 April 2018.
16On 19 August 2016, Mr Dhillon had an MRI scan of his lumbar spine. The MRI scan revealed an L4-5 mild broad-based disc bulge as well as a broad-based disc bulge seen as a small disc protrusion at L5-S1.[13]
[13] PCB 63
17As Mr Dhillon’s lower back pain was not improving, Mr Syeda referred him to the Melbourne Pain Group. Mr Dhillon reports at that time:
“I had constant sharp pain in my lower back area which radiated down my left leg and into my big toe and heel. My pain ranged between 4/10 and 8/10 depending on my level of activity.”[14]
[14]PCB 15
18On 8 March 2017, Mr Dhillon attended the Melbourne Pain Group located at the Victorian Rehabilitation Centre in Glen Waverley. He commenced a six-week introductory pain management program under the care of Dr Safa Hamza, a consultant in rehabilitation and pain medicine. During his program, he attended weekly sessions with a psychologist, occupational therapist and physiotherapist, and underwent hydrotherapy. On 17 August 2017, Mr Dhillon completed his pain management course and was discharged from the Melbourne Pain Group.
19Mr Dhillon attended Mr Vellore on 6 April 2018 for further consultation. Mr Vellore advised Mr Dhillon that he did not require further surgery at the time. Mr Vellore referred him to pain specialist, Dr Guy Buchanan, on 25 October 2018.[15] The plaintiff does not recall attending Dr Buchanan.
[15] PCB 91
20By letter dated 31 July 2017, Steinhoff Bedding advised Mr Dhillon that his employment was terminated by reason of his work incapacity. Mr Dhillon had not returned to work since 2015, and had been receiving weekly payments of compensation from WorkCover. His WorkCover payments ceased on or about 29 December 2017.
21Mr Dhillon says that following the termination of his employment, he developed anxiety and became depressed. Mr Dhillon’s general practitioner, Dr Syeda, prepared him a Mental Health Care Plan. On 24 July 2018, he was referred to Dr Tania Pietrzak, clinical psychologist at the Digestive Health Centre in Dandenong.[16] He attended Dr Pietrzak from 15 November 2018 until 4 July 2019. Mr Dhillon returned for treatment with Dr Pietrzak following that period, but says he was prevented from further visits due to COVID-19.
[16] PCB 76
22Mr Dhillon had a further MRI scan of the lumbar spine on 17 October 2018, which confirmed that he had small non-neural compressive disc protrusions at L3-4 and L5-S1.[17]
[17] PCB 64
23Mr Dhillon first attended his current general practitioner, Dr Sanjay Saluja, at Myhealth Medical Centre, on 18 June 2019. The plaintiff said he stopped seeing his previous general practitioner, Dr Syeda, because he moved to Narre Warren and it became difficult to visit Dr Syeda in Springvale.
24Mr Dhillon sees his general practitioner once or twice a month. He attends his physiotherapist, Mr Dax, five times a year, as funded by Medicare. He no longer attends his psychologist, Ms Pietrzak, because he “found it very distressing to go over the same story all the time”.[18]
[18]PCB 24
25Mr Dhillon occasionally attends Dr Jayanthi Manohar at the Woodleigh Waters Medical Clinic in Berwick for minor medical problems unrelated to his WorkCover claim.
Credit of the Plaintiff
26The defendant says the plaintiff is not a reliable or forthright witness. He had a selective memory and did not give direct answers. The plaintiff gave evidence that he has gone overseas to India two or three times since 2015. The defendant says the plaintiff’s evidence was self-serving. The plaintiff did not give direct and clear evidence about his work history since the injury and it is not clear how he and his wife have managed to buy three properties. The plaintiff was vague about the details of purchasing the properties and this raises a question about his credit.
27The defendant also submitted the plaintiff’s evidence as to his limitations was exaggerated, and he had been able to sit in court while under cross-examination for two hours without any apparent difficulty.
Finding
28The plaintiff gave evidence through an interpreter. There were the inevitable difficulties presented by interpretation and there were times during cross-examination when it was clear the plaintiff was uncertain as to the question he was being asked.
29There was some lack of clarity in oral evidence in relation to aspects of the plaintiff’s work history and employment since the injury. However, the work history was set out in the affidavit material and there was no significant challenge to that.
30The fact the plaintiff and his wife have managed to purchase three properties on modest incomes does not appear to me to be relevant unless there is also evidence that this has been made possible by reason of some additional, undisclosed earnings. No evidence of that kind was presented. The fact the plaintiff did not appear to be across the details of the purchase of the properties does not prove the plaintiff was unreliable or that his evidence in relation to other matters cannot be accepted.
31The plaintiff made admissions when asked about specific incidents, such as his ability to carry a box of fruit and vegetables, go shopping and drive to and from the airport and down to the Mornington Peninsula.
32The plaintiff’s ability to sit in court is not a reliable indicator of his pain levels.
33Importantly there was nothing in cross-examination that significantly impugned his evidence given on affidavit. There was no video surveillance showing the plaintiff undertaking activities he has denied being able to do. I do not find the plaintiff was an unreliable witness or that his credit was impugned.
Subsequent injury
34The defendant submits there was a subsequent injury at work. It relies on histories given by the plaintiff to medical treaters.
35Dr Vaidya Bala, consultant physician in rehabilitation medicine, notes in his report of 12 April 2016:
“Mr Amritpal Dhillon is a 41-year-old man [who] presents with a history of lower back injury on 03.02.2015 initially and subsequently on 03.02.2016, resulting in lower back and left [leg] pain.
On further inquiring about the incident, the claimant stated that on 03.02.2015 he sustained a back injury whilst he was lifting a mattress spring mat, along with a co-worker. ...
….
The claimant told me he sustained a second episode of lower back pain on 03.02.2016, where a similar mechanism of injury happened, as he states that he was trying to lift a mattress and sustained subsequent lower back and left leg pain.”[19]
[19]Defendant’s Court Book (“DCB”) 5
36Mr Brendan Dax, Mr Dhillon’s physiotherapist, reports the following history:
“He described incurring sharp pain in February 2015 whilst loading mattresses on an[d] off a machine at his workplace. He reported severe back pain, left side worse than right. He reported no leg pain.
…
... Physiotherapy continued as he continued to increase his duties at work.
Through December 2015 Mr Dhillon related amplified pain as rises in his lifting restrictions were trialled, thus preventing him from returning to his normal duties. In February 2016 he had a sharp increase in pain in his back extending to the whole left leg while lifting at work within his restrictions.”[20]
[20]PCB 108
37Dr Graeme Doig noted in his report of 10 March 2016 that he had reviewed Mr Dhillon on 7 January 2016 and noted that on examination in January, he “revealed no evidence of radiculopathy with excellent range of motion in his spine”.[21] He did consider there had been a change in the MRI which showed the disc prolapse had worsened. I assume Dr Doig is referring to the MRI scan of 25 February 2016, however this is not certain.
[21] PCB 257
38The plaintiff says there was no separate incident in February 2016 or at any other time. He sustained a large broad-based disc bulge at L3-4 with moderate central canal stenosis and compression of the L4 nerve roots. The symptoms of this injury were partially alleviated by rest and this was assisted by light work duties. The plaintiff says his light duties consisted of putting stickers on mattresses. However, once he started testing out the limits of his lifting ability, his pain returned. His symptoms were also alleviated by a period off work when he was in India over January 2016. However, upon return to work, and particularly in the context of lifting heavier weights, his symptoms returned.
39The plaintiff says the lack of a new or discrete injury is supported by the MRI of 25 February 2016 which notes his condition “has not significantly changed when compared with previous MRI of 7th February 2015”.[22]
[22]PCB 62
40The plaintiff says there is no injury report, incident report or claim form for an incident in February 2016 (or any other time) as there was no such incident.
41He did not report a new incident to his treating neurosurgeon Mr Vellore, who he consulted in the context of worsening back pain on 24 February 2016.
Finding
42It is well established that where separate injuries resulting from separate incidents impair one body function it is not permissible to aggregate the effects of the injuries to determine whether the impairment amounts to a serious injury.[23]
[23]Altona Bus Lines & Anor v Lococo (supra) at paragraph [7]
43There is no real support in the evidence for a finding that a discrete incident caused a new and separate injury. This is not a case in line with Filipowicz.[24] In that case there were two distinct incidents three years apart that arose at different workplaces. Each was productive of injury, albeit to the same shoulder. The Court held that a comparison had to be undertaken between the worker’s shoulder prior to the second incident and after the second incident to determine what additional impairment arose from the second impairment. It was not open to the judge to aggregate the consequences of both injuries.
[24]AG Staff Pty Limited v Stefan Filipowicz; Arnold Ribbon Co Pty Ltd (Trading as Arnold Webbing Australia) v Filipowicz [2012] VSCA 60
44In this case, the evidence discloses the plaintiff sustained an injury, returned to work and was managing quite well on light duties, but struggled to manage his pain as he trialled lifting heavier weights. This is consistent with Mr Dax’s report that in December 2015 his pain was amplified when he started resuming heavier lifting work.
45There is no evidence the injury sustained on 3 February 2015 resolved or substantially resolved. Symptoms reduced in the context of modified duties and rest. However a return to heavier, albeit not normal duties, caused an increase in pain. This may have arisen in the context of a similar lifting incident to the original injury, but I cannot see that this gives rise to a discrete incident or a new injury. It is simply a return of pain upon lifting heavier weights, as would likely have occurred at any time prior to February 2016 had such lifts been attempted.
46Importantly, the MRI report was largely unchanged before and after the alleged second incident.
47There is a consistent history given to doctors of an incident on 3 February 2015. There is no history of a specific incident on 3 February 2016 other than in Dr Bala’s report, though there is a history given to other doctors of increasing pain in or around February 2016. Mr Dax does not report a discrete incident but rather a sharp increase in pain when lifting within his restrictions. This suggests the plaintiff was simply doing the work he was considered able to do, and this caused his pain to flare up.
48The additional effects the plaintiff experienced after December 2015 and in particular after February 2016 are consequences of the original injury, that is the broad-based prolapse with nerve root impingement, and not a separate injury which cannot be aggregated.
Subsequent work history
49On 31 March 2016, Mr Dhillon had a functional assessment with occupational therapist, Mr Stephen Woolley, which was organised by Allianz Insurance. It was around this time that he was referred to Nabenet Rehabilitation Service (“Nabenet”).
50From 2016 until late 2017, Mr Dhillon attended Nabenet for assistance in trying to return to work.
51Steinhoff Bedding terminated Mr Dhillon’s employment on 31 July 2017. His weekly payments from WorkCover were terminated on or about 29 December 2017. After his termination, Mr Dhillon applied for jobs throughout 2017, and did some English training. Mr Dhillon says that in the later part of 2017, Nabenet closed his file because there was nothing further they could do to assist him. Following this period, Mr Dhillon was in receipt of payments from Centrelink for four to five months.
52In 2019, Mr Dhillon set up an ABN and obtained a contract to be a driver with rideshare service, Uber. Mr Dhillon conducted his business with the family’s Toyota Yaris at the time. Mr Dhillon says he only drove with Uber for a “couple of months”.[25]
[25]PCB 33
53In or about March 2019, Mr Dhillon obtained contracts with rideshare companies Didi and Ola. Mr Dhillon worked six days a week, and completed between six to ten jobs a day. He continued to drive the family Toyota Yaris until he purchased a business vehicle, a Toyota Camry, in February 2021. Mr Dhillon says:
“I source work from both. I determine what hours I work. I operate the business hours to accommodate my levels of pain. If I am in too much pain I do not work. There are times when I will stop work and go home and lay down.”[26]
[26]PCB 34
54Mr Dhillon stopped working as a rideshare driver in February 2020 due to the COVID-19 pandemic, and was in receipt of the JobKeeper Payment.
55Mr Dhillon resumed his work as a driver for rideshare services by the time of his second affidavit on 14 October 2021. He works between five to six days per week, depending on the state of his back. He explains his routine in his second affidavit dated 14 October 2021:
“Normally I would go out at about 6.00-7.00 am and come back around 10.00-11.00 am. At that time I would lay down and try and ease my pain. I may apply Voltaren gel or use the heat pack. At about 2.00-3.00 pm I then go out again for another 2-3 hours. There are times when I may stay at home and take jobs from the App.”[27]
[27]PCB 28
56In addition to his ridesharing work, Mr Dhillon worked for ISS Facility Services doing office cleaning for about 12 months in 2019 and 2020. He describes the work as “light in nature”.[28] He worked for 1.5 hours, but was paid for 3.5 hours of work.
[28]PCB 18
57By October 2021, Mr Dhillon had stopped working as a cleaner because he could not meet the physical demands of the job. He says, “I was not able to cope. I had to stop”.[29]
[29]PCB 28
Consequences for the Plaintiff
58Mr Dhillon says that on average, he takes two tablets of Nurofen about three to four times a week. He relies heavily on heat packs, Voltaren Gel and rest to manage his symptoms.
59He says when he wakes his back is stiff and tight. Even when it loosens up he continues to have a backache. After a few hours driving his pain is worse. He then takes the painkillers and uses Voltaren gel and heat packs. The pain makes him tired. He has trouble getting to sleep. It is difficult to get comfortable. Most nights he wakes due to pain. Once he wakes it is difficult to get back to sleep because of both his pain and his thoughts.
60Mr Dhillon says that he goes out “very little”.[30] Before his injury, Mr Dhillon attended the Sikh temple every fortnight. As a result of his injury, he attends the temple less frequently. He says that actions of worship such as bowing, kneeling and squatting on the floor exacerbate his lower back pain. Mr Dhillon struggles emotionally as “people ask me questions about my injury and this causes me to become anxious”.[31]
[30]Transcript (“T”) 60, Line (“L”) 19
[31]PCB 19
61Mr Dhillon also says that he and his wife are no longer as active in the community. When his wife has visitors, he spends a short time with them and goes to his room because he finds spending time with visitors “difficult, embarrassing and distressing”.[32]
[32]PCB 26
62Mr Dhillon’s relationship with his family has been significantly impacted by his injury. Mr Dhillon says he feels guilty for not being able to support his family, and that his mood, irritability and distress has affected his relationship with his wife. He limits contact with his children to avoid conflict and spends a lot of time in his room.
Does the Plaintiff have a serious injury?
63The defendant conceded the plaintiff’s consequences met the test for serious injury if I did not accept its submission that there was a separate incident.
64The plaintiff has also developed a secondary psychiatric condition resulting from his pain and limitations. I must disregard the impact of this condition in assessing the consequences of his physical injury on his life.
65I accept that some of the impact of the plaintiff’s injury arises from his psychiatric condition. His depression doubtless impacts on his desire to socialise and has caused him to be irritable, withdrawn and distressed.
66Setting aside these impacts, as a result of the physical injury the plaintiff has had spinal surgery which failed. He remains in considerable pain. He cannot work in his pre-injury occupation and has significant restrictions on his employment. His sleep is affected and he is fatigued as a result. He takes medication daily, albeit over-the-counter.
67His physical pain and restrictions have impacted his social and family life.
68I am satisfied that the plaintiff has a permanent serious impairment which is at least very considerable.
Plaintiff’s loss of earning capacity
69The plaintiff says as a result of his injuries he has sustained a loss of earning capacity which will continue to be productive of a financial loss of 40 per cent or more for the foreseeable future.
70The defendant says the plaintiff has a current work capacity, as demonstrated by his work as a rideshare driver.
71The defendant relies on a report of Dr Joseph Slesenger, specialist occupational physician, who says the plaintiff could work a 38-hour week as a courier or car park attendant. Dr Slesenger bases this assessment on his understanding the plaintiff is currently working 8.5 hours a day over a split shift.
72The defendant also tendered a CoWork report of Hayley Morey dated 12 May 2022 which assessed the plaintiff as suitable for work as a product assembler, courier and car park attendant. I note Dr Slesenger did not consider product assembler as suitable employment for the plaintiff as the job demands were likely to lie outside his capacity limits.
73According to the CoWork report a courier would earn, on average, $27.65 an hour. A car park attendant would earn, on average, $29.78.
74The defendant correctly says that any incapacity the plaintiff has for work must be assessed only as it arises from his physical injury. Any psychological impairment of his work capacity must be dismissed.
75I accept this is correct and I accept that various psychiatric opinions have been obtained which indicate a current work incapacity consequent upon Mr Dhillon’s psychiatric condition.
76However, the plaintiff’s evidence is that it is his physical injury which primarily impairs his work capacity.
77The defendant says even if the plaintiff is not suitable for any of these alternative occupations, he is currently earning more than 60 per cent of his “without injury” earnings if appropriate calculations are made.
78The defendant says a Jones v Dunkel[33] inference should be drawn by the failure to obtain an opinion report from the treating neurosurgeon, Mr Vellore. Mr Vellore’s medical reports to the referring doctor are in evidence. The defendant says the Court is denied the benefit of Dr Vellore’s opinion as to the plaintiff’s capacity before and after surgery and the Court ought to assume it would not be favourable to the plaintiff.
[33] [1959] 101 CLR 298
79I do not draw such an inference. Dr Vellore has not seen the plaintiff for some time and therefore his opinion post operatively as to the plaintiff’s work capacity is unlikely to be of great assistance to me. He is not in a position to opine on the plaintiff’s current work capacity.
80The plaintiff says he works six days a week and generally makes himself available to accept jobs between about 6am until about 5pm. However, he does not work continuously during this time. He usually has a break between about 11.00am and 2.00pm. When he does not have a job he is able to return home to rest. He generally accepts jobs within the local area.
81For a period he also worked for ISS Services doing office cleaning work. This has since ceased as he says the demands of the job increased and he was not able to cope.
82The plaintiff says he is working to his full capacity as a rideshare driver. He says other than this work he is not employable. As a rideshare driver he can set his own hours, take breaks when needed, accept or decline work according to his own preferences including declining work which may require him to drive for longer than he can manage with his pain levels. He cannot guarantee, from day to day, what his pain levels will be or whether he will be able to work. He has poor English but working as a rideshare driver does not require good English as he gets jobs through an app and has minimal interaction with customers.
83He sometimes delivers parcels in his role as a rideshare driver. However he says working as a courier is not suitable employment as it is likely to require both significantly better English skills and continuous lifting of parcels which would be outside his capacity.
84The legislation requires me to measure the plaintiff’s loss of earning capacity by measuring the gross income from personal exertion which he is earning, or is capable of earning (“actual earning capacity”), against the gross income from personal exertion that he would have earned, or would have been capable of earning from personal exertion without injury (“without injury earning capacity”). In assessing the without injury earning capacity I am to have regard to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.
85In the three years prior to his injury, Mr Dhillon earned the following amounts:
· 2013 - $58,946
· 2014 - $56,559
· 2015 - $32,249 for 30 weeks.
86The plaintiff says, but for his injury, he would have earned $55,898 in 2015. The plaintiff submits that his earnings in 2013 ought to be taken as the base rate from which his without injury earning capacity is calculated. This is a slightly higher amount than his 2015 earnings but more fairly reflects his capacity to earn income from personal exertion.
87The parties agree that since his injury there has been an annual increase in the rate the employer pays workers in the same position as Mr Dhillon of 2 per cent per annum. This gives the following figures:
· “Without injury” earnings based on 2013 earnings $58,946 x 1.06 = $62,482
· “Without injury” earnings based on 2015 earnings $55,898 x 1.06 = $59,261
· “Without injury" earnings based on average earnings 2013-15 $57,134 x 1.06 = $60,562
88In 2022, his income tax return discloses income of $29,945; however, the story is more complicated than that. He had a deduction in his 2022 tax return of $1,974 for rental loss which much be added back into his income. This takes his income to $31,919.
89The plaintiff notes that he took advantage of the ability to claim total depreciation of his vehicle during the previous financial year, but that this would otherwise have been spread across a number of years and ought be deducted from any assessment of his actual earnings. The plaintiff claims an amount of $3,000 for this deduction. The defendant says the appropriate deduction for depreciation of the vehicle is 12.5 per cent of the purchase costs, which amounts to $2,831.
90The plaintiff says his total earning capacity from personal exertion is $28,919 per annum.
91The defendant relies on a report of forensic accountant Ms Tamara Lindsay dated 27 September 2022. Ms Lindsay has prepared her report after reviewing the plaintiff’s tax returns, business income and expenses, activity statements, bank details and rideshare monthly statements. She also relies on information from the Australian Bureau of Statistics in relation to fuel and movement, and RACV calculations about transport costs.
92She notes the plaintiff earning between $800 and $900 gross per week. He incurs GST petrol, fuel and vehicle maintenance costs which include tyres, repairs, insurance, registration, licences, accounting and any other compliance requirements.
93She opines that the plaintiff’s claimed vehicle running costs for 2022 are significantly higher than the RACV cost data, though she notes the RACV data does not reflect the higher fuel prices in 2022 (approximately 35 per cent higher). She also criticises some of the other claimed expenses made by the plaintiff as excessive. She concludes that a better reflection of the plaintiff’s gross earnings from personal exertion in the 2022 financial year is $752 a week, or $39,104 per annum.
94The defendant submits the plaintiff has an earning capacity of $54,636.40 as a courier (based on a 38-hour week at $27.65 an hour) or $58,846.25 per annum as a car park attendant (based on a 38-hour week at $29.78 an hour), but in any event, is actually earning in the range of $39,000 per annum which exceeds the 60 per cent threshold.
Analysis
Without injury earning capacity
95There was no evidence to explain the plaintiff’s higher income in 2013. Plaintiff’s counsel submitted that during that financial year the plaintiff had some additional work as a cleaner, however I have no evidence upon which to base a finding that 2013 is more representative of his earning capacity. I do not know why he ceased the cleaning work, if indeed he did, or whether he had any intention to return to such work.
96I consider taking an average of his earnings in the three years prior to his injury is the fairest means of assessing his without injury earning capacity. I accept the parties’ agreed figure of a 2 per cent increase per year, which gives a without injury earning capacity of $60,562 per year.
97The plaintiff must establish his current earning capacity is $36,337.20 or less to satisfy the threshold.
“With injury” earning capacity
98The report of Dr Slesenger is based on an assessment that the plaintiff can work 38 hours a week.
99This fails to take into account the plaintiff’s description of his actual working hours and his evidence as to his working capacity.
100I accept his submission that working as a rideshare driver is suitable employment, but other occupations such as car park attendant and courier driver would not represent suitable employment. Both of these occupations are likely to require interaction with members of the public to a greater degree than his current employment, which would not be feasible given his language constraints. A car park attendant in particular is likely to have to resolve issues that arise in a car park with customers. A courier would be required to lift and carry packages all day, which would be beyond Mr Dhillon’s capacity.
101I do not consider the defendant impugned the plaintiff’s credit in any significant way. I am satisfied that his account of his working hours and capacity is an accurate one. Although he works across six days and over a period of 11 hours, his evidence is he actually drives for about three to four hours.[34]
[34]T74, L20-22
102In the 2022 financial year, Mr Dhillon travelled 30,670 kilometres for fare.[35] Assuming he works across six days, this works out to be something under 100 kilometres travelled for fare each day. Factoring in time to get from one job to another and the variation in speed limits, this sort of distance is consistent with Mr Dhillon’s evidence about his hours of work.
[35]DCB 198
103I am satisfied that his work restrictions arise as a consequence of his physical injury together with his language, occupation and education limitations. I am satisfied that he is working to the extent of his capacity.
104The question then is whether Mr Dhillon has a 40 per cent or more loss of earning capacity given my finding that he is working to his capacity in suitable employment.
105The defendant served a Notice to Produce seeking a number of documents relating to the plaintiff’s financial affairs.
106The plaintiff says he has produced in response every document that was in his possession, including bank statements, tax returns, credit card statements, BAS and statements from each of the rideshare companies for which the plaintiff worked.[36]
[36]T88, L2-8
107The defendant says I should draw an inference from the plaintiff’s failure to produce all the documents sought in the Notice to Produce. I draw no such inference. It was not put to the plaintiff that there were documents in existence that he failed to produce. There was no evidence before me to suggest the plaintiff’s documents recording his income were inaccurate, or that his rideshare statements did not disclose his actual kilometres travelled or income earned.
108The defendant’s forensic accountant has made an assessment based on RACV data on the cost of running a vehicle. It is not clear to me why I should accept those calculations in preference to the plaintiff’s evidence as to the actual costs of running his vehicle. Accordingly, I accept his earnings from personal exertion in the 2022 financial year were $29,945. To this is added in his loss on rent of $1,974.
109I accept the defendant’s calculation for deduction of depreciation of the vehicle is appropriate at $2,831.
110I find the plaintiff’s retained earning capacity is $29,088 per annum.
111His retained earning capacity is less than 60 per cent of his without injury earning capacity.
112The plaintiff’s application for a certificate for leave to pursue a common law claim in relation to both pain and suffering and pecuniary loss is granted.
- - -
0