Donovan v Victorian WorkCover Authority
[2017] VCC 1410
•19 October 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-01484
| AARON DONOVAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August and 1 September 2017 | |
DATE OF JUDGMENT: | 19 October 2017 | |
CASE MAY BE CITED AS: | Donovan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1410 | |
REASONS FOR JUDGMENT
---
Catchwords: Accident Compensation Act 1985 – s134AB – admission that injury to the back occurred in the course of employment and is serious within the meaning of the Act – reliance upon paragraph (a) of the definition only – dispute as to whether the plaintiff is entitled to leave to seek pecuniary loss damages – plaintiff a scaffolder – various allowances and the like payable – issue of calculation of both “without injury” and “after injury” earnings – whether burden of proof discharged – factors to be considered.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr J Plunkett | Slater & Gordon |
| For the Defendant | Mr P Elliott QC with Ms K Bradey | IDP Lawyers |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(38)(17)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. It is an application which is confined to a discrete, but potentially quite complicated, point. There is no argument but that the plaintiff suffered an injury to his low back on 17 May 2014 whilst in the course of his employment with an entity called CGE Hire Pty Ltd. Henceforth, what occurred on 17 May 2014 shall be referred to as “the accident” and the plaintiff’s employer on that date shall be referred to as “CGE”. The back injury suffered by the plaintiff shall be referred to as “the injury”. There is also no argument but that the injury suffered by the plaintiff in the accident is a serious injury as far as pain and suffering is concerned – see, for example, Transcript (herein after referred to as “T”) 2. What remains in dispute is whether the plaintiff is entitled to leave to seek pecuniary loss damages. That question is complicated by the fact that the plaintiff’s employment was that of a scaffolder. Various penalty rates, site allowances and the like are paid to scaffolders and their work, apart from being highly skilled and having some risks associated with it, can be somewhat transient, in the sense that competent scaffolders can move from one construction site to another. This can involve changes of employer. Further, there are levels or ranks of scaffolders with differing rates of pay applicable. The calculation of whether the plaintiff has satisfied the requirements of s134AB(38)(e) and (f) – that is, whether the plaintiff has established the required 40 per cent loss in earning capacity – lies at the heart of the present dispute.
2 Mr P O’Dwyer SC with Mr J Plunkett of counsel appeared on behalf of the plaintiff. Mr P Elliott QC with Ms K Bradey of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection. In addition, counsel provided detailed and particularly helpful written submissions. Indeed, this whole case was presented in a succinct, but thorough, manner. Its presentation is a credit to all who were involved in it.
(a)Factual background
3 Whilst the battle in this case concerns the discrete issue referred to above, the setting out of some of the factual background is necessary.
4 The plaintiff is aged 34 years, he having been born in 1983. He is a married man. After some secondary education, he did a four year apprenticeship as a panel beater and worked in that occupation for some six months, before deciding on a different career. He found work as a labourer in the construction industry, but also did some scaffolding work. He worked for a number of entities on large construction sites and, for approximately 12 months, ran his own scaffolding business. He ceased that and was off work for a short period when his father died. Thereafter, he returned to work as a scaffolder. After a period of some contracting to various employers, he became a full-time employee for an entity called Red and Blue Scaffolding, where he remained for approximately three years. He then worked for an entity called Cityline Scaffolding for approximately 18 months, before commencing work with CGE. In early 2013, the plaintiff was engaged by CGE as a scaffolder on a full-time basis. It would seem that, because of his experience, the plaintiff became a leading hand scaffolder. The salary which he was paid made some allowance for this and extra payments, such as a height allowance, were also made.
5 Having commenced with CGE as a casual employee, the plaintiff was engaged on a full-time basis as at early 2013 and was working in this capacity when he suffered the accident on 17 May 2014.
(b)The plaintiff as a witness
6 I found the plaintiff to be a completely straightforward and reliable witness. I have no reason to doubt any aspect of his evidence. I note that Professor Peter Teddy, neurosurgeon, who examined the plaintiff at the request of his solicitors, described him as a pleasant and direct man. Dr David Eaton, specialist occupational physician, similarly examining, referred to the plaintiff as having given a clear and organised history. Mr Vasudeva Pai, orthopaedic surgeon, who examined the plaintiff at the request of the defendant’s solicitors, referred to him as being cooperative and giving a consistent history. I would agree with all of the observations. The plaintiff was a most impressive witness.
(c)The state of the plaintiff’s health prior to the accident
7 Given the narrowness of the area of dispute in this case and the concession that has already been made in relation to pain and suffering, not much need be said in this regard. Suffice to say that the plaintiff had suffered a brief episode of back pain, which put him off work for approximately two weeks in 2013. He had some physiotherapy. He made a quick and full recovery. He was able to return to his normal duties without restrictions. Those normal duties would seem to have been physically demanding. Many aspects of them were performed at height. In his affidavit of 13 October 2016, the plaintiff has described his work as a scaffolder as being a heavy, physical job.
(d)The injury, its treatment and diagnosis
8 Again, given the ambit of this application, not a great deal of time need be spent upon the nature of the injury, its treatment and diagnosis. Following the accident, the plaintiff’s treating general practitioner, Dr Desmond Wong, referred him to Mr Paul D’Urso, neurosurgeon, who ultimately reported back on 23 September 2014 that the plaintiff had suffered an L5-S1 disc prolapse causing sub-articular S1 nerve root compression. On 22 October 2014, Mr D’Urso performed surgery under general anaesthetic, that surgery being a left L5-S1 laminectomy and rhizolysis. A disc prolapse was encountered and a thorough discectomy performed. In a report to the defendant on 1 December 2014, Mr D’Urso expressed the view that the plaintiff would require vocational retraining, bearing in mind his pre-injury duties as a scaffolder. In a subsequent report of 12 October 2016 to the plaintiff’s solicitors, Mr D’Urso commented that the plaintiff had no capacity for his pre-injury employment and would not have any such capacity for the foreseeable future.
9 Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, appears to have seen the plaintiff for medico-legal purposes, reporting to his solicitors on 27 October 2016. He considered the plaintiff’s condition to have stabilised. He noted that surgery had achieved about a 50 per cent relief of back and leg pain, but the plaintiff still required regular pain medications. The plaintiff at this time was working and tried to avoid such things as lifting heavy weights. Dr Aliashkevich observed that the plaintiff was restricted from performing his physically challenging and demanding duties as a scaffolder, but was suitable for alternative full-time employment as a yardman and forklift driver, with restriction on heavy lifting to not more than 20 kilograms. Dr Aliashkevich considered the plaintiff’s prognosis to be guarded.
10 Dr David Eaton, specialist occupational physician, who examined the plaintiff on 29 November 2016, found evidence of lumbar spine surgery. There was a mild to moderately reduced active range of motions of the lower spine, along with evidence of left L5 sensory and motor radiculopathy, including mild wasting of the left calf. He also noted that an MRI scan which had been performed on 5 June 2014 demonstrated L4-5/S1 disc degenerative changes and an extruded soft tissue fragment impinging on the right S1 nerve root, along with a cyst of the left S1 nerve root. His diagnosis was that the plaintiff had residual dysfunction and left sensory and motor S1 radiculopathy as a result of a lumbar disc prolapse, which had been treated surgically. He expressed the opinion that there was no further treatment that would substantially improve the plaintiff’s symptoms or his function. Dr Eaton stated that the plaintiff was unable to return to his pre-injury employment and that such situation will be permanent. He also expressed the opinion that the injury to the plaintiff’s lower back had permanently changed his anatomy and he anticipated that the plaintiff would have more significant problems with lower back pain and stiffness within a decade.
11 Professor Peter Teddy, neurosurgeon, examined the plaintiff at the request of his solicitors, reporting on 15 August 2017. He noted that the plaintiff was currently working on restricted duties, full-time, as a scaffolder/manager. He was currently employed in the yard, but doing no heavy lifting. As a result of the accident, the plaintiff had developed acute, mechanical back pain and left-sided sciatica. He was not suitable for his pre-injury duties.
12 The defendant has also had the plaintiff examined. The reports of Dr George Wilson, occupational physician, pre-date the surgery and have been overtaken by events. Dr Umberto Boffa, occupational physician, was reporting only six months after the spinal surgery. However, he thought that, whilst the plaintiff could not return to his pre-injury duties, he could return to modified duties, such as those of a storeman, but with no lifting or carrying of items weighing more than 10 kilograms.
13 Associate Professor Ian McInnes, senior specialist surgeon, saw the plaintiff on 7 September 2015. He diagnosed a sustained intervertebral disc lesion at L4-5 and L5-S1 as a direct result of the accident. At this time, the plaintiff was working as a traffic controller. Associate Professor McInnes thought that the plaintiff had made a reasonable recovery, but was still left with residual pain in the leg and back and limited back movement. As it was only 11 months since the operation, Associate Professor McInnes expressed the view that the plaintiff’s condition could vary over the next 12 months and that it was too early for an accurate impairment assessment. It seems apparent that the primary purpose of the assessment by Associate Professor McInnes related to a formal AMA impairment assessment, an impression enhanced by a subsequent brief letter of 16 November 2015.
14 Mr Vasudeva Pai, orthopaedic surgeon, saw the plaintiff at the request of the defendant on 29 June 2017. The plaintiff was working 40 hours per week as a yard manager, reporting that bending or lifting of more than 10 kilograms can cause increasing pain. Whilst he could do such things as ride a bicycle, go up and down stairs, drive a forklift and the like, there was persistent numbness in his lower leg and ongoing residual stiffness and pain in the back. The diagnosis was of one of post-discectomy residual symptoms. In the opinion of Mr Pai, the plaintiff had a capacity to do the work of a yard manager, but would not be fit for his pre-injury level of heavy work as a scaffolder. He considered the plaintiff to have achieved maximum medical improvement. He thought that the plaintiff could perform a number of suggested occupations, which he did not list, but which presumably are those set out in the Recovre report of 27 June 2017.
15 There is little or no argument concerning the diagnosis of the injury suffered by the plaintiff. He suffered an L5-S1 disc prolapse, causing right S1 nerve root compression and resulting in surgery. Indeed, I note that Associate Professor McInnes describes the injury as an L4-L5 and L5-S1 disc lesion. In any event, the nature of the low back injury suffered was scarcely the subject of debate in the present case.
16 Similarly, it was not argued that the injury represented the aggravation of a pre-existing condition. In any event, I am quite satisfied that the consequences from which the plaintiff suffers all arose from the accident and that he was performing heavy work as a scaffolder prior to that date. Further, it was not argued that there exist psychological or psychiatric consequences which, for the purposes of s134AB(38)(h), cannot be taken into account. Whilst obviously any such consequences would have to be disregarded, the whole presentation of the plaintiff, combined with the medical material available, leaves me in no doubt but that any such consequences that do exist are absolutely minimal.
17 There is also no argument but that the consequences of the injury are permanent, in that they will persist for the foreseeable future. The treating surgeon, Mr D’Urso, has described the plaintiff’s condition as stabilised, although warning that the plaintiff is now prone to the risk of a recurrent disc prolapse, along with degenerative progression at the L5-S1 level. Dr Aliashkevich’s view was that the plaintiff’s prognosis was guarded, but that his condition was likely to remain unchanged in the near future. If the plaintiff avoids further injuries to his back, long-term deterioration is unlikely. Dr Eaton also stated that the plaintiff’s condition had stabilised and that is essentially the view of Professor Teddy. Mr Pai stated that the plaintiff had achieved maximum medical improvement and that some of the residual symptoms are going to be permanent. The treating general practitioner, Dr Wong, has also expressed the view that the plaintiff’s condition has stabilised and that his incapacity in relation to the performance of his pre-injury duties is permanent. In addition, the defendant has accepted and paid compensation in respect of permanent impairment of the plaintiff’s back. Further, the defendant has accepted that the injury constitutes serious injury in relation to pain and suffering and permanence is an ingredient of this. In short, I find that the consequences of the plaintiff’s injury are permanent within the meaning of the Act.
Other developments since the injury and, in particular, the plaintiff’s subsequent employment
18 After the accident, the plaintiff returned to work on light duties on 10 June 2014. In his affidavit of 13 October 2016, the plaintiff has sworn that he then found it very difficult to get through the day. His back and left leg gave him tremendous difficulties and he really struggled to cope. He did this for approximately five weeks until, on 14 July 2014, he was informed by CGE that there were no suitable duties that existed for him. His employment with that entity ceased. His returning to work when he was in such difficulties is an early instance of his exemplary attitude in relation to continuing in the workforce. As stated, the surgery was performed on 22 October 2014. It would seem that, at some stage in 2015, the plaintiff worked for approximately three weeks as a traffic controller. In September 2015, he commenced work as a truck driver for an entity called Improved Towing. He performed this work for approximately three or four months, before ceasing due to back problems. He was then off work for approximately a couple of months before attempting another driving job, this time with City Wide as a driver of garbage trucks. He again found this difficult due to back and leg pain associated with the prolonged periods of being seated.
19 In early 2016, he commenced work in a team leader role with a scaffolding company called Instant Access. He had believed that this would be a job that was mainly supervisory and administrative. In fact, it involved “being on the tools” most days, this in turn requiring bending and lifting. He lasted in that job only two to three months before ceasing.
20 The plaintiff was then employed by Western Scaffolding as a yardman and driver. The principal work which he performed was the operation of a forklift at the yard. Whilst he was employed on a casual basis, he worked the equivalent of full-time hours most weeks. He found that being seated in the forklift for long periods was not good for his back. Ultimately, he left that position on 23 December 2016.
21 On 11 January 2017, the plaintiff commenced in his present employment with JC Scaffolding, where he does some work as a yardman, some driving and has done quite limited work as a scaffolder. The duties which he performs there and his rate of pay play an important role in this dispute. Amongst other matters, they shall be discussed further in the Ruling, which now follows.
Ruling
22 As earlier stated, a considerable part of this dispute centres upon the operation of s134AB(38)(e) and (f). In turn, this requires an analysis of “without injury” earnings and “after injury” earnings. These are matters which received considerable attention, both in the plaintiff’s evidence and in the written submissions of counsel. I shall deal with them in turn.
(a)“Without injury” earnings
23 “Without injury” earnings are to be calculated in accordance with s134AB(38)(f)(ii). It reads as follows:
“the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned 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 worker's earning capacity had the injury not occurred;”
24 As can be seen, an estimate is required to be made as to what a worker was earning or was capable of earning. Further, what must also be considered is the part of the period within three years before and three years after the injury as most fairly reflects a worker’s capacity had the injury not occurred.
25 It is to be remembered that the injury occurred on 17 August 2014. Therefore, the relevant overall period for consideration is from 17 August 2011 until 17 August 2017. It is also to be remembered that the wording of s134AB(38)(f)(ii) directs attention to the part of the six year period which most fairly reflects a worker’s earning capacity had the injury not occurred. In this regard, I would refer to the observations of his Honour Judge Misso in Buckland v GTE Workplace Management Pty Ltd [2013] VCC 864.
26 With respect, I would also agree with his Honour’s observations to the effect that the operation of the relevant provision does not invite an averaging of the gross income from personal exertion within the relevant period. The wording of s134AB(38)(f)(ii) seems to me to require a finding as to “that part of the period”, being the six year period, as most fairly reflects the plaintiff’s earning capacity had the injury not occurred. Deciding upon an appropriate “without injury” figure necessitates a finding as to the part of that period which most fairly reflects the capacity. It is not simply a matter of averaging, or of selecting the part of the period in which a plaintiff had the highest earnings.
27 The parties have agreed that what could be described as the “Incolink” payments should not be included. As I understand it, these are payments made from a fund to which employers contribute and from which payments can be made to scaffolders who are “between jobs”. In any event, it is agreed that such payments are not to be taken into account.
28 In my opinion, the part of the relevant period which most fairly reflects the plaintiff’s capacity had the injury not occurred would be the working portion of the last financial year of that six year period. That could be described as being where, financially, the plaintiff was heading had the injury not occurred.
29 As stated, the injury occurred on 17 May 2014. Accordingly, the period which I think most fairly reflects the plaintiff’s earning capacity had the injury not occurred, is from 1 July 2016 to 17 May 2017. In order to calculate that figure, it seems to me that the appropriate method is to take the plaintiff’s rate of earnings immediately prior to the accident, including relevant allowances, and then adjust such figure so as to arrive at the amount being earned by the plaintiff on a regular basis towards the end of that six year period and as described above.
30 It also seems to me that any unusual or “one off” payment not related to earning capacity should be ignored. If, in a particular occupation at a particular time, a substantial bonus unrelated to earning capacity is paid, it seems to me that such payment should be ignored. Similarly, if a plaintiff was absent from employment for a reason not associated with injury so that, for example, the earnings for one particular year were well down, that year would be one which does not most fairly reflect earning capacity. It is to be remembered that it is capacity which is to be considered. Additions to or deductions from income which are not related to earning capacity should be ignored.
31 Similarly, it does not seem to me that the solution is simply to average a worker’s earnings over a period. For the purposes of this example, let us take the period of the three years prior to the occurrence of an injury. The worker’s earning capacity in the first year might have been $50,000. Let us say, because of promotions or changes in award rates, in the second year he earned $60,000. As a result of similar increases, his earnings from personal exertion in the third year had increased to $70,000. The averaging of the three would result in a figure of $60,000. It seems to me to be difficult to say that this most fairly reflects the worker’s capacity, because in the third year he had demonstrated a capacity to earn $70,000. Assuming that this earning capacity related to personal exertion, it is my opinion that, of the three years, the period represented by the third year would most fairly reflect the worker’s earning capacity had the injury not occurred.
32 Of course, this exercise is not confined to the three years prior to the accident. Both the three years before and the three years after the injury are to be considered. Nor does it mean that, necessarily, the sixth or latest year would always be the one selected. That would depend upon the evidence. However, in my opinion, if the evidence permits it, and bearing in mind that it is earning capacity that is in issue, years such as the most recent in time or in which the earnings figure is highest may have some advantage in assessing capacity – as stated, insofar as the evidence permits. The highest earning day, week, month or year will not automatically be that which most fairly reflects capacity, but, as a matter of logic, may have some advantages, depending upon the circumstances. It may also be particularly relevant if a plaintiff has been engaged in the same type of employment from year to year.
33 It also seems to me that increases and allowances which have been paid to a comparable worker remaining in the type of employment in which an injured plaintiff was previously employed are relevant in calculations pursuant to s134AB(38)(f)(ii). If the evidence establishes that, had the plaintiff not been injured, on balance he or she would have continued in the same occupation and would, on the balance of probabilities, have earned the amount payable to such comparable employee, including increases, allowances and the like, then I see no reason why such earnings cannot be taken to be those which most fairly represent the plaintiff’s capacity.
34 In short, I am not of the view that the most accurate way in which to calculate “without injury” earnings in the present case is simply to employ an averaging process. As stated, I am of the opinion that the period of potential earnings between 1 July 2016 and 17 May 2017 is a fairer reflection.
35 In this regard, I accept the evidence of the plaintiff and of Mr Ralph Edwards. Mr Edwards has chaired meetings of contract scaffolders and played an active role in union negotiations relating to the CFMEU Contract Scaffolding Enterprise Agreement. He is familiar with CGE, as an enterprise known for working on large commercial jobs. He has sworn in his affidavit that CGE work was subject to the CFMEU Contract Scaffolding Enterprise Agreement. He has calculated the base amount payable, together with allowances, including that for scaffold competency, a level which the plaintiff had achieved. His affidavit was sworn on 4 August 2017, so that it is not long after the end of the six year period which has been considered. His overall conclusion is that, with allowances for overtime factored in, the plaintiff, if a full-time scaffolder, would earn in excess of $130,000 per year.
36 As stated, the accident occurred on 17 May 2014. For the financial year ending 30 June 2014, the plaintiff’s gross earnings were $121,861. Even a modest annual increase of 3 per cent for the years following the accident would produce a result of an annual income comfortably in excess of $130,000. Of course, the evidence of Mr Edwards is that someone in the plaintiff’s position would now be earning up to or in excess of $130,000 per annum. I f one takes the figure of $130,000, 60 per cent of that is $78,000.
37 I find the affidavit of Mr Edwards to be more useful than that of Mr Lindsay Onley, who was the managing director of CGE. He disagreed with the assertion that the plaintiff could be earning in the vicinity of $130,000-$140,000 per annum had he not been injured and had he been able to continue work as a scaffolder. He referred to the uncertainty of work in the scaffolding industry, estimating that skilled scaffolders with a very good reputation could potentially average up to $90,000-$95,000 per annum. However, he also conceded that the plaintiff’s earnings in the 2014 financial year were $110,772. In any event, the evidence seems to establish that the plaintiff’s earnings for the 2014 financial year were in fact $121,861. This is a figure which was not the subject of challenge, is extracted from the plaintiff’s income tax returns, and indeed was adopted in the calculations which form part of the defendant’s written submissions. Further, the plaintiff has demonstrated a capacity to remain in the scaffolding industry, even if not performing the bulk of his pre-injury duties. In short, I prefer the material provided by Mr Edwards to that emanating from Mr Onley. Mr Edwards is at what could be described as the cutting edge of discussions or negotiations concerning wages paid and conditions in the scaffolding industry.
38 In any event, the figure of $130,000 appears to me to be, if anything, on the modest side for “without injury” earnings and I adopt it.
“After injury” earnings
39 The plaintiff’s basic rate of earnings in his present occupation is $30 per hour, the annualisation of which for a 36 hour week is $56,160. However, from time to time he does some scaffolding work which can consist of managing if someone calls in sick or the like – see T16. He can do this for three or four days in a row, but then has to stop because of the pain. There has been a recent, brief sizeable increase in his weekly earnings, but I accept that this was exceptional. For two weeks, he did truck driving work in the absence of the usual truck driver, but was paid at the rate of a scaffolder. It would appear that, during this fortnight, he was paid at the rate of a leading hand scaffolder even though the work that he did was that of a truck driver – see, for example, T49. I accept that the amount which he was paid for this particular fortnight was something of an aberration. As stated, the plaintiff was being paid as a scaffolder, including allowances, but was in fact performing the work of a truck driver. I also accept that, in his present employment, the plaintiff has worked overtime only on one particular job which involved working at Shepparton on four consecutive days. I accept that this was also something of an aberration, being the only occasion on which the plaintiff worked any overtime. The actual hours that he worked seem to have been between four and five per day. The plaintiff denied that normally he could perform scaffolding for two or three days.
40 The parties agreed that the plaintiff’s earnings for the 2017 financial year totalled $67,414. That would include the Shepparton work. It seems to me that this represents the maximum amount which the plaintiff is capable of earning, whether in suitable employment or even when at times going beyond the limits which he should be observing.
41 If that is accepted, and I do so accept it, the plaintiff clearly has established the loss of earning capacity of 40 per centum or more as required by the Act. Sixty per cent of $130,000 is $78,000. The maximum amount that the plaintiff is earning or is capable of earning is $67,414. I repeat that the amount which he earned for the fortnight’s truck driving was in the nature of a fiction. He was paid as if he were a leading hand scaffolder, rather than a truck driver.
42 I appreciate the various calculations contained in the written submissions of Mr Elliott and Ms Bradey. However, in relation to “after injury” earning capacity, I prefer the approach adopted by Mr O’Dwyer and Mr Plunkett. The plaintiff is a very well-motivated man, who at times and comparatively briefly performs work which is higher paying, but which he performs for a limited number of days. Even then, he may well be going beyond what could and should be expected of him. To take the comparatively brief periods when he does this and earns a greater amount of money, and then project that as if he were able to do this on a full-time basis, seems to me to be an approach which is inherently inaccurate and unfair. It is not a true reflection of what the plaintiff is capable of earning. Rather, to employ the wording of s134AB(38)(f), $67,414 is both what he is earning and what he is capable of earning. His actual earnings for the full financial year reflect what he is capable of earning, even allowing for brief periods when his earning rate is increased. I agree with the submissions on behalf of the plaintiff that annualising the plaintiff’s earnings from figures when he is briefly “on the tools” produces a result which is unfair and inaccurate. To annualise such briefly increased earnings would be to attribute to the plaintiff a capacity which he, as a reliable witness, claims that he does not have and which would seem to go well beyond the restrictions put on his activities by medical examiners such as his treating neurosurgeon, Mr D’Urso – see, for example, his report of 12 October 2016.
43 In summary, I find that the plaintiff has satisfied the requirements of s134AB(e) and (f).
Section 134AB(38)(c)
44 I am also of the view that the requirements of s134AB(38)(c) have been satisfied. The plaintiff’s loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked and as being at least very considerable. The plaintiff is aged 34 years. There is nothing to suggest that his life expectancy is anything other than normal. If that be so, he probably has ahead of him decades of an inability to pursue his chosen profession and of earning the salary that goes with it. It is to be remembered that the defendant, by making the concession which it has in relation to the plaintiff’s pain and suffering, is effectively conceding that his symptoms and restrictions will persist for the foreseeable future. His financial loss has already been great and this will continue.
Conclusion
45 The plaintiff is successful. He has discharged the burden of proof. Apart from the conceded leave to seek pain and suffering damages, he is also granted leave to pursue an action for pecuniary loss damages. I shall hear the parties as to any ancillary orders that are required.
0