East v AWMA Pty Ltd (No 2)
[2014] VCC 1082
•11 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04242
| SHANE WILLIAM EAST | Plaintiff |
| v | |
| AWMA PTY LTD (ACN 108 429 876) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 30 June 2014 | |
DATE OF JUDGMENT: | 11 July 2014 | |
CASE MAY BE CITED AS: | East v AWMA Pty Ltd & Anor (No 2) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1082 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – plaintiff injured in specific incident – injury to lumbar spine – plaintiff involved in manual work prior to injury – pecuniary loss consequences – limited opportunities for retraining or alternative employment – leave sought in respect of pecuniary loss and pain and suffering – leave granted
Legislation Cited: Accident Compensation Act 1985
Cases Cited:East v AWMA Pty Ltd v VWA [2013] VCC 637; Cassells v Wimmera Super Meat Market Pty Ltd [2009] VCC 0928; Smorgon Steel Tube Mills Pty Ltd v Majkic (2008) 21 VR 193; Sodexho Australia Pty Ltd v Rowe [2009] VSC 298; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170.
Judgment: Leave granted to the plaintiff to bring proceedings for loss of earning capacity and pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC with Mr M J Walsh | Barbante & Associates Pty |
| For the Defendant | Mr N B Chamings | IDP Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff, Mr Shane East, suffered an injury to his lower back in the course of his employment on 4 June 2010. He was then forty-six years of age and employed as an installation fitter by the first defendant who was carrying out work involving the installation of a steel gate at the Melbourne Water eastern treatment plan at Bangholme.
2 Although the incident occurred in Victoria, the plaintiff was living in Deniliquin in New South Wales with his wife and one dependent child at the time the incident occurred. He had worked with this employer since approximately 2005. Although there was no issue that the plaintiff had sustained injury in the course of his employment, there had been a jurisdictional dispute which was resolved by a separate hearing in this matter, determining that the plaintiff’s employment with the first defendant had the requisite connection with the State of Victoria as required under s80 of the Accident Compensation Act 1985 (“the Act”).[1]
[1]East v AWMA Pty Ltd v VWA [2013] VCC 637.
3 In the present proceeding, the plaintiff seeks leave to commence a common law proceeding to recover damages in respect of loss of earning capacity and pain and suffering consequent upon the injury suffered to his spine in June 2010. Mr East relies upon paragraph (a) of the definition of serious injury contained in s134AB(37) of the Act. He nominates the spine as being the body function said to be relevantly lost or impaired.
4 Whilst no concession was made on behalf of the defendant in relation to the pain and suffering consequences of injury, Mr Chamings, who appeared on behalf of the defendant, concentrated on the pecuniary loss consequences suffered by the plaintiff and ultimately advanced no argument in opposition to the limited grant of leave in respect of pain and suffering.
5 There was some disagreement between the parties as to the precise levels of pre and post-injury income earned or capable of being earned by the plaintiff, but the essential dispute centred on the plaintiff’s capacity for employment into the foreseeable future.
The evidence
6 The plaintiff was the only witness called in this proceeding. Surveillance video taken between November 2012 and May 2014 was shown to him during cross-examination and was tendered as Exhibit 1. The remaining evidence relied upon by the plaintiff, consisting of affidavit material, medical reports and certificates and a vocational assessment, was tendered as Exhibit A. Additional material relied upon by the defendant, consisting largely of vocational assessments and other documentation relating to capacity, was tendered as Exhibit B. This exhibit also included material subpoenaed from the plaintiff’s general practitioner, Dr Liebenberg.
7 The plaintiff has sworn three affidavits in support of his application for leave. The first of these affidavits was sworn on 3 April 2012, with a second affidavit sworn on 15 May 2013, just prior to the hearing before his Honour Judge Carmody relating to the jurisdictional issues. The third affidavit was sworn on 20 May 2014.
8 Given that the issues in dispute centre on the plaintiff’s capacity for employment, it is unnecessary to fully summarise the contents of the affidavit material. Nevertheless, I should point out the matters which I believe are relevant to that issue. From the first affidavit I noted:
·The plaintiff was born in June 1964 and is married, living with his wife and one of three adult children.
·The plaintiff claims he sustained an injury to his lower back when lifting a heavy steel gate at premises in Bangholme on 4 June 2010.
·On 8 June 2010, Dr Liebenberg certified him unfit for work and prescribed medication.
·The plaintiff attended school in Melbourne until halfway through Year 10, leaving when he was about 15 years old.
·His previous work history involved working in a service station in Springvale and further manual work including truck driving, wood cutting, labouring, farm hand work, droving and working as a security officer.
·He commenced with the defendant as an installation fitter in about 2005 and worked continuously until the date of injury.
·The plaintiff returned to work with persisting back pain in mid-June 2010 and was referred to Mr Nicholas Maartens, neurosurgeon, in December 2010.
·After a nerve root block performed in Shepparton in February 2011, Mr Maartens performed a microdiscectomy to the L4-5 disc in Melbourne. In June of that year the plaintiff was subsequently reviewed by Mr Maartens, still complaining of referred pain in the left leg. At that time he was taking medications including OxyContin.
·In August 2011 the plaintiff reports being told by Mr Maartens that he could have further surgery, being an L4-5 fusion.
·The plaintiff was made redundant in September 2010 and believes the redundancy was due to his inability to return to work.
·The plaintiff continues to experience pain in the lower back on a daily basis, radiating into the left leg and occasionally the right leg. He continues to take medication including OxyContin, Valium, Nurofen Plus and Panadol Osteo.
·He tries to perform tasks around his house and on a small hobby farm of approximately 29 acres, but needs to pace himself and be careful about his posture and lifting. His youngest son assists with physical activities.
·The spinal pain interferes with his ability to sleep and causes difficulty travelling for long periods in a car.
·He believes his ability to return to workforce is limited. He has only ever done manual work and has no clerical skills and is computer illiterate.
·The plaintiff earned approximately $65,000 gross for the financial year ending 30 June 2010.
9 From the second affidavit sworn 15 May 2013, I noted the following additional matters:
·The plaintiff attended a three-week pain-management program at Wodonga Hospital in June 2012.
·The plaintiff was referred back to Mr Maartens, who examined him on 28 March 2013, advising him that he would probably need a spinal fusion of L3-4 and L4-5 discs.
10 The affidavit sworn 20 May 2014 contained further material which I found relevant, as follows:
·The plaintiff continues to see Dr Liebenberg on a regular basis but has not seen Mr Maartens since March 2013 as he is fearful that further surgery will make his back worse.
·The plaintiff continues to take medication including OxyContin, Valium, Nurofen Plus and Panadol Osteo. He takes a further medication, Altven, for depression.
·The plaintiff tries to perform some household tasks and gardening, but being careful so as not to aggravate his back. He relies upon his son for assistance.
·He has not actually returned to work, and continues to receive weekly payments of compensation, noting medical restrictions that had been for 10 hours per week with a significant lifting restriction are now for total incapacity.
·The plaintiff deposes as to ongoing severe pain in his lower back and legs and the need for medication. He has been unable to consider work. He has no formal education beyond the age of 15 years and no trade qualifications.
·He has no present intention to undergo further surgery and has been advised to delay it as long as possible.
11 The plaintiff was cross-examined. I regarded the following matters as relevant to an assessment of the plaintiff’s capacity for employment:
·The plaintiff held licences as a forklift driver, heavy rigid vehicle driver, and for non-slewing crane work.[2] He also had a confined spaces ticket.
[2]Transcript (“T”) 8, Line (“L”) 2–4
·On 31 October 2010 the plaintiff was not dismissed but made redundant, with other workers.[3]
[3]T9, L18–23
·The plaintiff does some work on his father’s hobby farm, but now not reasonably regularly.[4]
[4]T10, L21–23
·The plaintiff owned a Nissan Patrol with modified suspension to facilitate off-road rough driving.[5]
[5]T11, L21–27
·The plaintiff had booked into a computer course at the Deniliquin TAFE (Deniliquin is a town of approximately 7,500 people).[6]
[6]T11, L31–T12, L11
·The plaintiff owns a tandem trailer with caged sides which he had used to cart stock and get wood.[7]
·If there was employment suitable to his back condition which he could physically cope with he would like to do that.[8]
·He had applied for two positions at the Deniliquin Rice Mill, one as a fitter and one as a forklift driver, before his back operation.[9]
·The plaintiff had asked about doing a computer course back in 2011, but this was not approved until early February this year.[10]
·The plaintiff’s driving was restricted, so that after about 45 minutes he would usually have to get out and have a stretch and walk around for five or ten minutes.[11] (He later agreed it would be between 45 to 60 minutes before needing a break.[12])
·He agreed that when assessed in September 2011 he had described a sitting tolerance of 30 minutes, a standing tolerance of 30–45 minutes, and the ability to walk 1–2 kilometres.[13]
·The plaintiff accepted that his treating GP may have discussed jobs of machine operator, delivery driver, light courier and spare-parts interpreter, following a report prepared by a vocational assessor in February 2012.[14]
·He disagreed with an assessment that he could work eight hours a day, five days a week, as long as there was no repetitive lifting, crouching or heavy lifting involved.[15]
·The plaintiff denied having any formal welding qualification, but agreed he had taught himself to weld.[16]
[7]T12, L26–30
[8]T13, L23–26
[9]T14, L17–22
[10]T19, L23–27
[11]T22, L23–30
[12]T23, L26–27
[13]T29, L18–26
[14]T34, L12–22
[15]T35, L12–17
[16]T36, L19–26
12 Surveillance DVDs were then shown to the plaintiff and tendered as Exhibit 1. The DVDs ran for approximately 18 minutes, and I have had an opportunity to review them since hearing this matter. The surveillance recorded in the DVDs occurred between 16 November 2012 and 14 May 2014. The plaintiff was observed at the rural property owned by his father near Deniliquin. On one occasion he was shown to pick up a chainsaw and what appeared to be a plastic fuel container and place them in the rear of a Hilux utility apparently driven by the plaintiff’s son. When further cross-examined, the plaintiff agreed that he and his son had gone out and cut a trailer-load of firewood.[17] The plaintiff was further cross-examined about his general physical ability, and confirmed in broad terms that he was able to do anything provided it was at his own pace.[18]
[17]T55, L10–11
[18]T56, L20–25
13 The plaintiff was re‑examined, particularly in relation to his level of activity. I noted in particular the following question:
“In terms of what you actually do, are you able to do it at the same pace that you were able to do it before you were injured?---Nowhere near.
What do you need to do then?---At the farm?
No, in terms of the pace, when you say, ‘Nowhere near’?---Like what I used to do out on Dad’s little place on a weekend, now would take me all week.”[19]
[19]T60, L12–18
14 The medical evidence in this case was not controversial. There is an accepted injury occurring in the course of the plaintiff’s employment in June 2010, and no argument that his condition resulted in Mr East undergoing spinal surgery in the form of a microdiscectomy performed at the L4‑5 level by Mr Maartens on 16 June 2011. Mr Maartens’ operation report was tendered as part of Exhibit A.[20] There is no actual report from Mr Maartens, but the progress of the plaintiff since that surgery has been well canvassed by Dr Liebenberg, the treating general practitioner, in his reports between August 2011 and May 2014.[21] In a report to the insurer dated 5 February 2013, Dr Liebenberg refers to the plaintiff attending a pain-management course under the supervision of Dr Todhunter in Albury-Wodonga.
[20]Exhibit A, page 142.
[21]Exhibit A, page 75–141.
15 Dr Todhunter reported to the Accident Compensation Conciliation Service on 1 February 2013.[22] He referred to the plaintiff attending a three-week pain-management program in June 2012, and commented in relation to ongoing left-buttock and groin pain:
“It is my opinion that his ongoing pain is a continuation of his initial pain being discogenic in origin. ... The disc cannot repair itself and therefore the ongoing local mechanical problem in the back remains. ... His pain will continue indefinitely. There is no cure for his pain. ... Essentially there can be no expectation of any spontaneous improvement at this time but he may improve with further treatment.”[23]
[22]Exhibit A, page 150–152.
[23]Exhibit A, page 151.
16 The plaintiff relied upon an orthopaedic opinion from Mr Garry Grossbard dated 22 April 2014. Mr Grossbard had previously examined the plaintiff and reported in August 2012. Mr Grossbard regarded much of the plaintiff’s symptomatology as organic in origin. He commented in his recent report:
“This man continues to be troubled by back pain which limits his activity. He is able to undertake basic tasks around his property at a very slow rate but would not be able to undertake any form of manual work.
Whilst your client’s work capacity is markedly restricted, I do not think for all intents and purposes he is going to return to the workforce on a full-time basis. I believe he does have a capacity for simple sedentary duties but is limited by his place of dwelling and his computer illiteracy. He is also limited by his inability to sit for long periods of time.”[24]
[24]Exhibit A, page 174.
17 The plaintiff additionally relied on orthopaedic opinions from Mr Michael Dooley, who had examined him at the request of the defendant’s solicitors in April 2013 and May 2014. At the time of Mr Dooley’s most recent examination he noted the plaintiff was then taking OxyContin, Nurofen Plus, Panadol Osteo and Valium for his pain. Mr Dooley noted:
“Even after technically successful surgery, a patient will note ongoing intermittent low-back pain as a consequence of the aggravation of underlying degenerative disc disease that occurs with a disc prolapse. Most patients will still note some intermittent lower-limb pain.”[25]
[25]Exhibit A, page 222
18 Mr Dooley regarded the plaintiff as having a physical capacity to carry out light physical work and clerical duties, but as not being able to carry out regular heavy physical work or work that involved a lot of bending, lifting and manoeuvring. He further commented on specific employment options, to which I will later return.
19 Dr Helen Sutcliffe, occupational physician, had also examined the plaintiff at the request of his solicitors and prepared reports dated 10 December 2012 and 4 June 2014. She diagnosed Mr East as having sustained:
“…disc derangement in the lumbar region but I believe there is no significant neuropathic pain in the left lower limb but there continues to be nociceptive pain as a result of the disc injury to the left L5 nerve root. ... It is entirely organic in nature. ... The prognosis is poor after this passage of time and I believe there will be persisting pain into the foreseeable future.”[26]
[26]Exhibit A, page 198
20 The opinions of the consultants to which I have referred appear quite consistent with the opinion of the treating general practitioner. In his report dated 5 February 2013, Dr Liebenberg states:
“Shane’s capacity for pre-injury duties has not been regained since the initial injury and also not after the surgery. He has had capacity for suitable duties/the duties of any job offer with restrictions as described in his New South Wales Work Cover reports by myself from time to time. His condition showed periods of improvement followed by periods of time where his condition worsened. His current level of pain probably precludes work at the present time. He has had functional capacity evaluations at times and these findings recommend capacity for suitable duties at these times. ... Shane’s treatment is essential in ensuring capacity for work and to maintain capacity for activities of daily living. As discussed with his insurer, Shane will probably benefit from retraining in order to pursue a different career path in future.”[27]
[27]Exhibit A, page 96.
21 The plaintiff also tendered in evidence various medical certificates which had been provided to the New South Wales WorkCover insurer between 8 June 2010 and 16 May 2014.[28] Although this is not a full list of all certificates provided, I do note the most recent medical certificate certifies the plaintiff as having no current work capacity from 18 May 2014 to 18 June 2014.
[28]Exhibit A, page 235–260.
22 The plaintiff finally relied upon a vocational assessment report dated 14 June 2012 prepared by a Mr Michael Iacovino, an occupational rehabilitation consultant. At the time of the preparation of that report the plaintiff was described as having:
“A reduced work capacity and significantly diminished occupational prospects owing to his unresolved chronic medical condition, and, in all likelihood he would only have, at this time, a limited notional working capacity. As such, his employment options and potential earning capacity has been compromised by his injuries.”[29]
[29]Exhibit A, page 264.
23 There was no more recent vocational assessment relied upon by the plaintiff in this proceeding.
24 As a contrast, the evidence relied upon by the defendant includes four vocational assessments conducted subsequent to the plaintiff’s spinal surgery performed in June 2011. The most recent of these reports was the employment capacity analysis undertaken by Janette Ash, an occupational therapist, and Robyn Willett, an employment placement consultant, on behalf of Recovre. I will return to the substance of this report when dealing with an analysis of the evidence. The defendant also tendered records produced from the Deniliquin Medical Centre, being Dr Liebenberg’s practice. All of these documents were included in Exhibit 2.
25 There was no agreement as between the parties as to the relevant earnings figures, although there was agreement as to the level of gross earnings and gross allowances that had been received in the three years preceding the date of injury. It was also agreed that the plaintiff has not actually returned to work subsequent to his redundancy. The letter of redundancy dated 27September 2010 was tendered on behalf of the defendant and forms part of Exhibit 2.
Analysis
26 I accept the plaintiff as a reliable and truthful witness. He answered questions put to him in cross-examination frankly, and made admissions as to his level of activity which were consistent with the material put to him in the surveillance DVDs. In so far as it was relevant, I note an admission made by Mr Chamings on behalf of the defendant to the effect that the plaintiff had been under surveillance for 30 hours and 5 minutes, resulting in the actual surveillance recorded of somewhere in the order of 18 minutes. Frankly, little turns on that in my view.
27 It would appear from the plaintiff’s own admission of endeavouring to enrol in a retraining course (subject to it actually being conducted), and his initial attempts at job seeking after being made redundant, that a proper analysis of this case would not regard him as being totally unable to engage in any employment to which he is suited indefinitely into the future. My own observations of him, both in giving his evidence and when recorded on the surveillance DVDs, was that he appeared to be moving in a generally guarded fashion but did undertake certain activities, including lifting a chainsaw and a fuel container into the back of a utility vehicle presumably driven by his son. It is significant to my assessment of the plaintiff’s credibility that he at no time denied undertaking activities that were put to him in cross-examination, but this was generally with a caveat, such as, when being asked in cross-examination about certain jobs that he could do, the plaintiff replied “I think I can do anything I want at my own pace.”[30]
[30]T42, L6–9
28 I regarded the medical evidence as supportive of a proposition that the plaintiff currently has and will have a limited capacity for employment indefinitely into the future. There is no suggestion in the medical evidence that he will return to unrestricted heavy employment even on a part-time basis. Although his general practitioner, Dr Liebenberg, has currently certified him as unfit for all duties, I believe that the opinion expressed in his most recent medical report to the plaintiff’s solicitors stating that the current capacity is limited to “a few hours daily, five days per week” represents a more considered assessment of the plaintiff’s true level of capacity.[31] I take into account the considerable advantage Dr Liebenberg has over consultant medical practitioners based upon the lengthy period of time he has been treating the plaintiff.
[31]Exhibit A, page 97
29 The most recent evidence advanced in relation to suitable alternative employment is set out in the lengthy report compiled by Recovre in September 2013.[32] The earlier reports prepared by IPAR in October 2011 and January 2012, together with the report from Mr Iacovino prepared in June 2012, are of limited assistance to me in coming to any conclusion as to the possible types of employment for which the plaintiff is suited at the present time and into the foreseeable future.
[32]Exhibit 2, page 59–103
30 In terms of the Recovre report, I accept the described capacity for employment set out under the heading of ‘Medical Discussion’ as follows:
“It was noted that Mr East’s treating practitioners generally consider that he retains a capacity for suitable employment in more sedentary type work where heavy manual handling is not required.”[33]
[33]Exhibit 2, page 64
31 The recommendations made on the basis of that assessment were described as machine operator, gaming worker and truck driver. The suitability of truck driving was qualified as being for “short distance only”. This type of job was initially not relied upon. The machine operator position was described later in the report[34] as being within a large grain-processing plant in Deniliquin. It was also recommended that the position of a miller at the same plant would be suitable for the plaintiff. The evidence establishes that the plaintiff had in fact applied for positions at the rice mill after being made redundant, and accepted, when cross-examined by Mr Chamings, that he would not have applied for such jobs unless he believed he could do them.[35] Having read the description of the machine operator job, I note that the report states:
“Weights would not typically exceed 5 kilograms with a lifting rate of two to three times per hour maximum.”[36]
[34]Exhibit 2, page 67
[35]T42, L2–5
[36]Exhibit 2, page 74
32 I further note that the role is to be performed in a bulk-loading area:
“... typically manned by three to four machine operators who are required to load empty bulk-fill bags onto the milling machine, activate filling and then tie-off and shrink wrap the filled bags.”[37]
[37]Exhibit 2, page 79
33 The author of that report notes that within the bulk-loading area manual handling is unlikely to exceed 5 kilograms, but states:
“Within the packaging areas workers may have a requirement to assist with management and handling of incorrectly filled bags weighing between 20–30 kilograms. Recently installed conveyer raising mechanisms have resulted in improved lifting height ranges so that workers are no longer required to lift these bags from floor level but now lift from bench to bench height.”[38]
[38]Exhibit 2, page 79
34 On the evidence in this case I am not satisfied that this work is suitable for the plaintiff, as he is working in a production area with other machine operators performing duties as part of an ongoing process. I am not satisfied that he is currently fit or likely to be fit in the foreseeable future to undertake such work as part of a production process by reason of the consequences of his ongoing back injury. I note the Recovre report goes on to state:
“Mr East is noted to have been out of the workforce for some time and is likely to have reduced work tolerance as a result. It is suggested that the likelihood of him tolerating the manual handling demands of this role would be improved if he were to commence on a part-time or casual basis to allow rest between shifts until such time as he can tolerate greater activity levels.”[39]
[39]Exhibit 2, page 80
35 The Recovre report describes another position within the rice mill as suitable employment for the plaintiff. This is the position of miller. I have read the job description and note the following comment in relation to repetitive and heavy manual handling:
“The assessed white rice miller role does not require any lifting or manual handling in excess of 8 to 10 kilograms when removing machine covers and indeed lifting is typically limited to less than 2 kilograms. When performing cleaning tasks once per shift for a 15-minute period (approx) millers are required to use a metal rod to prise off built-up dust and debris from machine casings. This can require a force of approximately 5 to 8 kilograms and is likely to cause some vibration/jolting through the shoulders.”[40]
[40]Exhibit 2, page 87
36 Once again this position is production-based, and the description of the actual task refers to manual-handling activities including lifting of weights of up to 10 kilograms. On the basis of the medical material and particularly the opinion of Dr Liebenberg I do not regard this as suitable for the plaintiff, particularly on a full-time basis.
37 The final position described in the Recovre report was that of gaming worker in a large sporting and recreation club. This related to a large sporting club in Moama approximately 45 minutes’ drive from the plaintiff’s place of residence. The position of gaming worker within that club is expansively described in the Recovre report.[41] The ordinary hourly rate of pay is described as being $18.27 for permanent staff and $23.22 for casual staff. Those rates increase for work performed on Saturdays, Sundays and public holidays up to a maximum of $45.68 for permanent staff and $46.06 for casual staff. I note from the job description that cash transactions may require lifting a coin decanter weighing 8.1 kilograms and lifting a coin-dump from a gaming machine weighing up to 15 kilograms depending on the amount of coin. I do not regard those tasks as being suitable for the plaintiff. Additionally, when the plaintiff was cross-examined about the position of a gaming worker, he commented that he could not do it
“... because you mentioned in there that I’ve got to download betting sheets and all that sort of stuff. That’s the work I can’t do.”[42]
[41]Exhibit 2, page 89–100
[42]T28, L30–T29, L1
38 The plaintiff did agree in cross-examination that with appropriate training, being either on the job or TAFE training, he could do those tasks. He also agreed that he could do the physical aspects involving using trolleys to collect cash involving a push force of 10 to 15 kilograms once per shift and similar activities.[43] In the same passage of cross-examination he agreed that he could stand for 30–40 minutes, sit for 30 minutes, walk for one or two kilometres, and lift more than the 5‑kilogram restriction which had been placed upon him. In my view, these responses reflect the plaintiff’s aspirations rather than a true assessment of his actual work capacity. I prefer the opinion of Dr Liebenberg for the reasons I have already stated.
[43]T29, L5–17
39 Although there was no agreement between counsel as to what figure should be used as a true reflection of his likely current earnings if he had not been injured, I am not required to make such a finding in order to make a determination for the purposes of s134AB of the Act. The provisions of s134AB(38)(e)(i) require me to be satisfied that as at the date of determination the plaintiff has a loss of earning capacity of 40 per cent or more. The formula for this calculation is set out in paragraph (f).
40 The defendant submitted in final address that I should accept the plaintiff’s earnings in the three years predating the injury as $52,940 (2008), $54,408 (2009) and $65,076 (2010). Mr Chamings submitted that I should take an average of these three years, being $57,475, as the appropriate comparator for the purposes of paragraph (f)(ii). Mr Morfuni, who appeared with Mr Walsh for the plaintiff, proposed a different formula, submitting that the three relevant pre-injury earnings figures should be $61,795 (2008), $61,148 (2009) and $71,391 (2010). This was on the basis of the gross income together with allowances that were received by the plaintiff during the course of his employment by the first defendant. There was also argument advanced on behalf of the plaintiff that in terms of the future earning capacity but for injury, I should apply a 3 per cent increase.
41 Ultimately the state of the evidence does not require me to make such a calculation or to rule on which figure is correct. In this case I am satisfied that the plaintiff has a current work capacity for suitable employment five days per week for not more than four hours per day. If he were to obtain 20 hours’ work as described in the Recovre report at the ordinary hourly rate of $23.22, being the higher hourly rate allowed for casual workers, this would result in annual income of $24,148.80. On such an analysis he clearly demonstrates a loss of 40 per cent or more, even accepting Mr Chamings’ submission that his annual “without injury” capacity was $57,475.
42 Mr Chamings referred in argument to a decision of this court in Cassells v Wimmera Super Meat Market Pty Ltd.[44] In that case a 46‑year-old former meat worker who had a varied background in her employment history had suffered an injury to her lower back which the court found was a serious injury for the purposes of the grant of a pain and suffering certificate. His Honour Judge Bowman found that the plaintiff had failed to make out her case for leave for pecuniary loss damages as she had admitted in her evidence that she had applied for a position as a full-time bartender at a local hotel and believed that she could do that job if it had been available at the time of the hearing. His Honour referred to the binding authority of Smorgon Steel Tube Mills Pty Ltd v Majkic.[45] In that case his Honour referred to the following passage from Buchanan JA:
“If the phrase ‘suitable employment’ qualifies only the income from personal exertion the worker is capable of earning, the work on one side of the comparison may be a contrived, adventitious, short-term occupation bearing little or no resemblance to the work for which the worker is suited. I consider that the legislature intended that the worker’s loss of capacity was to be determined having regard to work that is generally available in the employment market, rather than a position tailored to meet the peculiar needs of an individual worker, who is incapable of performing his normal work.”[46]
[44]Judge Bowman [2009] VCC 0928
[45](2008) 21 VR 193 at [10]
[46]Ibid at [10]
43 I should also make reference to further comments made in Majkic:
“The definition [suitable employment] directs attention to the realities of the labour market. It does require that regard is to be had to any return to work plan. A return to work plan must include an offer of suitable employment, and such an offer may take the form of employment catering for the disabilities caused to a worker by injury, such as the position created for the respondent. It is one thing to have regard to a return to work plan for the light it may throw upon a worker’s ability to work, which can be turned to account in the commercial world outside the special relationship between a worker and an employer concerned to cater for the worker’s special needs. It is another to equate the work offered by such a plan with suitable employment for the purposes of s 134AB(38)(f). The definition does not require the second step to be taken.”[47]
[47]Ibid at [11]
44 Mr Chamings also referred me to Sodexho Australia Pty Ltd v Rowe,[48] a decision of Smith J, dealing with the concept of suitable employment in terms of an entitlement to statutory compensation. In that case, his Honour referred to both Majkic and the Court of Appeal’s earlier decision in Barwon Spinners Pty Ltd v Podolak[49] at [25] which remains binding authority. In that case it was stated:
“The expression ‘whether or not that work is available’ emphasises that the definition is looking at the capacity to work, meaning that physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is ‘suitable employment’, whether or not the job is currently available.”
[48][2009] VSC 298
[49](2005) 14 VR 622 at [25]
45 The present case is not one on all fours with Cassells v Wimmera Super Meat Market. Here I find the plaintiff has been a truthful witness and has attempted to obtain employment, notwithstanding the ongoing effects of his back injury, and has actively pursued rehabilitation options in terms of retraining at the Deniliquin TAFE, although such a course is not currently available to him. Quite properly, Mr Chamings advanced no argument suggesting that the plaintiff’s attempts at retraining were in any way non-compliant with the requirements set out in s134AB(38)(g).
46 In view of my finding that the plaintiff currently has and will continue to have only a limited capacity essentially for a few hours’ work on a daily basis, I have not found it necessary to consider the plaintiff’s argument that the appropriate “without injury” earning comparator should be somewhere in excess of $71,391 rather than the figure of $57,475 as submitted on behalf of the defendant. Even accepting that lower figure, the plaintiff clearly satisfies the test in s134AB(38)(e) and is entitled to a grant of leave to claim damages for pecuniary loss.
Conclusion
47 I am satisfied that the plaintiff has established that as a consequence of the injury to his lumbar spine, he presently suffers and will continue to suffer a loss of earning capacity measured in accordance with the statutory formula which is at least a loss of 40 per cent or more on an indefinite basis.
48 I therefore propose to grant leave to the plaintiff to bring proceedings at common law in respect of a loss of earning capacity on the basis that the injury to the plaintiff’s spine is a serious injury as defined and satisfies the statutory test for leave to be granted in respect of loss of earning capacity.
49 In light of the authority in Advanced Wire & Cable Pty Ltd v Abdulle[50] it is unnecessary for me to separately consider a grant of leave for pain and suffering damages.
[50][2009] VSCA 170
50 I will hear the parties in relation to formal orders and questions of costs.
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