Edzevit Saitoski v G.J. and K. Cleaning Services Pty Ltd
[2022] VCC 299
•17 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-20-02753
| EDZEVIT SAITOSKI | Plaintiff |
| v | |
| G.J. & K. CLEANING SERVICES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 March 2022 (via Zoom) | |
DATE OF JUDGMENT: | 17 March 2022 | |
CASE MAY BE CITED AS: | Edzevit Saitoski v G.J. & K. Cleaning Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 299 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – whether actual income from personal exertion – whether loss of income earning capacity permanent
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Accident Compensation Act 1985
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Acir v Frostter Pty Ltd [2009] VSC 454; Glazebrook v Accident Compensation Commission [1988] VR 454; Alter v Alcon Laboratories (Australia) Pty Limited [2008] VCC 713; Adjemian v Victorian WorkCover Authority [2017] VCC 1890; Howell v Border Express Pty Ltd [2012] VCC 1612; Boskovic v Road Maintenance Pty Ltd [2006] VCC 51; Caratozzolo v Metroll Pty Ltd & Anor [2007] VCC 1006; Thompson v Concept Hiring Services Pty Ltd (Unreported, VCC, 14 November 2006, Lewitan J); Guthrie, Shane v Campion Education (Aust) Pty Ltd [2009] VCC 1141; Hodge v VWA [2019] VCC 923
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr C Farinaccio | Shine Lawyers |
| For the Defendant | Mr R Kumar | Thomson Geer |
HER HONOUR:
1Mr Saitoski migrated to Australia from Macedonia in 2004, when he was 28 years old. Shortly after arriving in Australia, he found employment as a cleaner with the defendant. For the next nine years, he cleaned Housing Commission buildings for the defendant, working Monday to Friday, and on weekends.
2On 7 October 2013, Mr Saitoski was cleaning the laundry on the second floor of the Housing Commission building in King Street, Prahran. There was an inspection due and Mr Saitoski was required to ensure the area behind the washing machine was clean. He tried to move the washing machine out from the wall. As he pulled, he felt a sharp pain in his left shoulder (“the left shoulder injury”).
3It is now over eight years since this incident. Mr Saitoski has not returned to any form of paid employment, aside from some light modified duties with the defendant, which ceased in 2015.
4A Medical Panel has concluded that Mr Saitoski:
(a) is suffering from a persistent dysfunction of the left shoulder following a soft-tissue injury, surgically treated, resulting from the left shoulder injury;
(b) having regard to this left shoulder injury (disregarding any psychological/psychiatric consequences), has no current work capacity;
(c) is suffering from an adjustment disorder with mixed anxiety and depressed mood and somatic symptom disorder resulting from the left shoulder injury; and
(d) having regard to this mental injury, has no current work capacity.
5I am bound by the opinion of the Medical Panel.[1]
[1] Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”), s313(4)
6Nevertheless, the defendant submits that the Court should not give leave to Mr Saitoski to bring proceedings for pecuniary loss damages. It submits that the Court should not be satisfied that Mr Saitoski has suffered a serious injury with respect to loss of earning capacity. In particular, it submits that the Court should not be satisfied:
(a) that Mr Saitoski has a current loss of earning capacity of 40 per cent or more.[2] Although the defendant accepts (as it must) that Mr Saitoski has no current capacity to work in “suitable employment”[3], it contends that Mr Saitoski has not discharged the burden upon him to show that he is not actually earning income from personal exertion from a chicken shop operated with his wife;[4] or
(b) that Mr Saitoski would continue permanently to suffer a loss of earning capacity of 40 per cent or more.[5] In particular, the defendant says that I should not be satisfied that Mr Saitoski’s incapacity for work is permanent, given the possibility of improvement with rehabilitation; better work prospects with training; and better income earning capacity from the chicken shop.
[2] Section 134AB(38)(e)(i) and s134AB(38(f) of the Accident Compensation Act 1985
[3] Section 3, WIRCA; s5(1) Accident Compensation Act
[4] Section 134AB(38)(f)(i)(A) of the Accident Compensation Act
[5] Section 134AB(38)(e)(ii) of the Accident Compensation Act
Is Mr Saitoski earning income from personal exertion from the chicken shop?
Evidence in relation to the chicken shop
7In about March 2021, Mr Saitoski’s wife purchased a chicken shop business in Sunbury, through a corporate entity, Selmani-Sait Pty Ltd (“the company”). Mrs Saitoski works full time at the chicken shop, which is open from 10.00am to 7.00pm, six days per week.
8According to Mr Saitoski’s further affidavit sworn 12 August 2021, he goes to the shop with his wife most mornings between 6.30am and 7.00am. He helps start the charcoal fire, which takes 20 to 30 minutes. He then rests. He might help his wife lift a rod loaded with five or six chickens with his right hand. He might wash and stuff two to three boxes of chickens. He then rests. He might then perform odd jobs for his wife, like walking to the shops to get supplies. He says he usually leaves the shop between 10.00am and lunchtime. He says he sometimes stays later in the afternoon if the pain in his shoulder does not get worse during the day. He says, when he is not there, his wife is assisted by either her sister or her good friend.
9He says that his English is not very good and he is unable to help Mrs Saitoski take orders on the phone, serve customers or work on the cash register. He says he does not help with any of the paperwork.
10He says he goes to the shop for his own mental health and to get out of the house, and is not paid for anything he does at the shop.
11In his oral evidence-in-chief, Mr Saitoski said that he sometimes took orders from people if Mrs Saitoski was indisposed or in the toilet, but maintained that he could not take orders over the phone. In cross-examination, he initially said that he did not serve customers, but later admitted to performing tasks such as cutting chicken, making rolls and putting chickens in bags. He said that most of the time he left early, but sometimes stayed the whole day.[6] He explained that running the chicken shop was a two-person job, though, so he could only leave when his wife’s friend or sister had arrived.
[6] Transcript (“T”)20, Lines (“L”) 6-7 and L19-22; T47, L18-20
12Mr Saitoski insisted that the business was his wife’s and that he was not involved in the paperwork or financial side of the business. However, he also, at times, referred to the company as “my company”[7] or “our company”[8].
[7] T15, L16-17
[8] T14, L30-31
13Surveillance spread over two separate weeks was tendered in evidence and played during Mr Saitoski’s cross-examination. It showed him attending at the chicken shop every day for five days in a row in each of the weeks. It showed him regularly staying until the shop closed. It showed him performing light tasks in and around the shop. These tasks included carrying a bucket in his left hand, shaking out trays and manoeuvring a hose. The surveillance also showed him repeatedly helping out in the late afternoon/evenings in the chicken shop, for nearly two hours, performing tasks such as reaching with his left hand above shoulder height for bags, placing chickens in bags, opening and closing the sliding doors to the bain marie; cutting chicken; and removing the bain marie trays.
14After viewing the surveillance, Mr Saitoski’s explanation for the reason he went to the shop shifted. Rather than being solely for his mental health, he explained:
“… I have to go to help, to help and work for my children. I have to push myself, really push myself in order to work and help for the family.”[9]
The reliability of Mr Saitoski’s evidence
[9] T55, L3-7
Defendant’s submissions
15The defendant submitted that the surveillance showed Mr Saitoski had a capacity well beyond what he had stated in his evidence and to the Panel. While the defendant accepted that the Medical Panel opinion was nevertheless binding upon the Court, it submitted that the underlying reasons of the Medical Panel were not. It submitted that the inconsistencies between Mr Saitoski’s evidence and the surveillance raised credit issues which affected the reliability of Mr Saitoski’s evidence in relation to the remaining issues in the case.
Consideration of reliability of Mr Saitoski’s evidence
16Mr Saitoski left school in Macedonia before completing primary school. His entire working career in Australia has been working as a cleaner for the defendant. He gave evidence through an interpreter. He was able to understand some of the questions put to him in cross-examination before they were interpreted; and answered some questions in English. However, he spoke with a very heavy accent. I accept that his spoken English skills are poor and that it was appropriate for him to give evidence through an interpreter. I also accept that he cannot effectively read or write in English.
17The Medical Panel found that Mr Saitoski is suffering from an adjustment disorder with mixed anxiety and depressed mood and somatic symptom disorder so severe that he has no current work capacity in suitable employment. In its reasons, the Panel described Mr Saitoski as being “very vague regarding dates, sequences of events, and specifics of treatment”[10] and considered his “symptoms of depression, tiredness, loss of energy and motivation and pain distraction”.[11] Dr Gregor Schutz, a medico-legal psychiatrist retained by Mr Saitoski, came to a similar diagnosis. He noted that Mr Saitoski:
“… was a generally vague historian and reported ongoing memory difficulties … .
…
[10] Plaintiff’s Court Book (“PCB”) 142
[11] PCB 143
… He reports ongoing ruminations and worry. he reports irritability, tearfulness, variable appetite, loss of sex drive and poor concentration … .”[12]
[12] PCB 91
18In his first report, Associate Professor Peter Doherty, the medico-legal psychiatrist retained by the defendant, raised the possibility that Mr Saitoski was grossly exaggerating his symptoms, however said “I cannot be sure” and stated that “no firm psychiatric condition diagnosis”[13] could be reached. In his second report, he said that;
“In my opinion there are elements of an adjustment disorder with depressed mood. In my opinion, the worker can be diagnosed as having an adjustment disorder. There are elements of an exaggerated response to pain, and functional loss.
In my opinion there are elements of a pain disorder but no diagnosable psychiatric condition as a chronic pain disorder. There appears to be an exaggerated, at times dramatic and imaginative response to pain and stress, which in itself is not evidence for the presence of a psychiatric condition.”[14]
[13] Defendant’s Court Book (“DCB”) 21
[14] DCB 29
19I do not accept that Mr Saitoski is grossly exaggerating his psychological symptoms. Associate Professor Doherty’s views in that regard are equivocal. Neither the Medical Panel nor Dr Schutz formed this view. I, myself, did not form that view, having had the opportunity to observe him in cross-examination. I note, too, that Mr Saitoski denied having suicidal ideation in a North Western Mental Health Assessment of 8 August 2017. This is not consistent with a tendency to grossly exaggerate his psychological symptoms. I prefer the opinions of Dr Schutz and the Medical Panel (as expressed in their reasons) to those of Associate Professor Doherty.
20Mr Saitoski’s cultural background, lack of sophistication and the interposition of an interpreter all impacted on the manner in which he answered questions. The memory, concentration and motivation issues described by the Medical Panel and Dr Schutz are also likely to have impacted on to the accuracy and consistency of his answers. Mr Saitoski’s evidence must be considered in the entirety of this context.
21Many of Mr Saitoski’s answers to questions did not respond to the question asked. However, this generally appeared to be due to a lack of understanding of the question rather than a deliberate attempt to avoid a difficult question.
22As I have already noted, there was a shift during the course of Mr Saitoski’s cross-examination from portraying himself as “helping” in the chicken shop for his own mental health and mostly only in the early morning with setup; to explaining that he helped at the chicken shop because he felt he had no choice but to do so in order to feed his family and protect and support his wife.
23On the other hand, when first describing his role at the chicken shop in his further affidavit, Mr Saitoski clearly stated that he worked up to five days per week. This evidence was noted by the Medical Panel in its reasons. In cross-examination, even before he saw the surveillance, Mr Saitoski said he sometimes stayed at the shop until the end of the day and also explained that he cut up chicken for his wife.
24The surveillance demonstrates that Mr Saitoski was able to assist in the chicken shop with preparing food orders for customers for up to two hours in the evening, five days per week, on at least two separate weeks. However, it is not possible to tell from surveillance whether Mr Saitoski was subjectively in pain and pushing through that pain to help his wife. Further, the surveillance is not inconsistent with Mr Saitoski spending long periods of the day resting on the couch. It is also not inconsistent with there being many other weeks over the last nine months when Mr Saitoski was at the shop no more than a few days per week and a few hours per day.
25I have considered the whole of the evidence. This includes the surveillance, Mr Saitoski’s affidavit evidence, Mr Saitoski’s reports to the medical practitioners, the medical opinions, and Mr Saitoski’s oral evidence. I accept that there were inconsistencies in Mr Saitoski’s evidence, and that he has at times downplayed the extent to which he assisted in the chicken shop. However, in all of the circumstances outlined above, I did not find these inconsistencies so gross as to render the whole of his evidence unreliable. In particular, I accept that he was a generally honest witness who was endeavouring to tell the truth.
26Finally, I do not accept that Mr Saitoski’s references to the company being “our company” or the chicken shop being “our business” provide a fair foundation for a conclusion that he was personally carrying on the business of the chicken shop with his wife. I accept that his role in the company was limited to assisting with light tasks at the shop where he is able and, through his presence, providing his wife support and a sense of safety while she worked long hours at the business. There is a difference between the community of property which exists in a family and the legal concept of ownership. In particular, I accept that Mr Saitoski has no knowledge and involvement in the financial affairs of the company; has a very limited capacity to take orders from customers; cannot use the cash register; and can perform only light tasks and, then, with frequent breaks and heightened risk of pain.
Calculating current loss of earning capacity
27Mr Saitoski must satisfy the Court that he has a loss of earning capacity of 40 per cent or more measured by comparing the greater of:[15]
(a) his gross income from personal exertion which he is earning, whether in suitable employment or not; and
(b) his gross income from personal income which he is capable of earning in suitable employment,
with his without injury income (calculated in accordance with s134AB(38)(f)(ii)).
[15] Section 134AB(38)(e)(i) and s134AB(38(f) of the Accident Compensation Act
28There are three figures involved in this calculation: The gross income from personal exertion that Mr Saitoski is actually earning; the gross income from personal income he is capable of earning in suitable employment; and Mr Saitoski’s without injury income. The Medical Panel has determined that the gross income from personal income which Mr Saitoski is capable of earning in suitable employment is zero. The appropriate value for Mr Saitoski’s without injury income was $43,596.[16] Sixty per cent of this amount would be $26,157.60.
[16] The amount he earned in the financial year ended 30 June 2013.
29The only relevant question remaining in relation to Mr Saitoski’s current loss of earning capacity is the actual income from personal exertion which Mr Saitoski is earning. Mr Saitoski must satisfy the Court that his gross income from personal exertion is $26,157.60 or less.
30Section 134AB(38)(f) is a gateway provision. It does not require an assessment of loss of earning capacity as in a claim for damages, but rather the application of a statutory formula.[17]
[17]Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545, [78]; see also Acir v Frostter Pty Ltd [2009] VSC 454 at paragraph [171]
31The definition of “income from personal exertion” in s6(2) of the Transport Accident Act 1986 is incorporated by reference in s134AB(38)(a) of the Accident Compensation Act. That definition is as follows:
“income from personal exertion in relation to a person means—
(a) the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and
(b) the proceeds of any business carried on by that person either alone or in partnership with any other person; and
(c) any amount received as bounty or subsidy in carrying on a business; and
(d) the income from any property where that income forms part of the emoluments of any office or employment of profit held by that person; and
(e) any profit arising from the sale by that person of any property acquired by the person for the purpose of profit-making by sale or from the carrying on or carrying out of any profit-making undertaking or scheme—
but does not include—
(f) interest, unless that person's principal business consists of the lending of money, or unless the interest is received in respect of a debt due to that person for goods supplied or services rendered by the person in the course of the person's business; or
(g) rents or dividends; or
(h) any employer superannuation contribution.”
32I accept that the phrase:
“…consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities … ;”
in paragraph (a) of the definition of income from personal exertion, is very broad.[18] However, this phrase is limited by the requirement that it be received “in the capacity of employee or in relation to any services rendered”. Paragraph (a) of the definition stands in contradistinction to paragraph (b). Paragraph (a) concerns amounts received in the capacity of employee or in relation to any services rendered. Paragraph (b) is concerned with the proceeds of a business.
[18]On the interpretation of the meaning of “earnings” see Glazebrook v Accident Compensation Commission [1988] VR 454
33I accept Mr Saitoski’s evidence that he is not an employee of the company and is not paid any money for helping his wife at the chicken shop. His general reference to the chicken shop helping pay the mortgage or provide for his family does not cause me to doubt this conclusion. In any event, I accept that Mr Saitoski has very minimal understanding of finances. These statements may be more aspirational than anything else.
34Turning to paragraph (b) ꟷ this paragraph only applies to the proceeds of a business carried on by Mr Saitoski, whether alone or in partnership with another person. It is not at all apparent to me that this paragraph permits the piercing of the corporate veil, so that the proceeds of a business carried on by a corporation may be brought to account.[19] The express inclusion of business carried on in “partnership”, without any similar reference to businesses carried on by a corporation, tends against such an interpretation. So, too, does the fact that this is a gateway provision.[20]
[19]cf Alter v Alcon Laboratories (Australia) Pty Limited [2008] VCC 713; Adjemian v Victorian WorkCover Authority [2017] VCC 1890
[20]See the doubts expressed by Howell v Border Express Pty Ltd [2012] VCC 1612 at paragraphs [28]-[35]
35However, it is not necessary to decide this issue. I am satisfied that, in the facts of this case, Mr Saitoski cannot fairly be viewed as carrying on the business of the chicken shop. I accept that the business is owned by the company and managed by Mrs Saitoski, with Mr Saitoski’s input limited to providing assistance with light tasks where he is able to do so; and company and support for Mrs Saitoski on other occasions. Accordingly, paragraph (b) does not apply.
36Further, even if the proceeds of the chicken shop business were to be attributed to Mr Saitoski, for the reasons which follow, I am satisfied that those proceeds are well below the $26,157.60 threshold.
37There has been some difference of opinion in the case law as to whether paragraph (b) requires consideration of the proceeds of a business before expenses are deducted; or proceeds of a business net of expenses but before tax.[21] However, it has now been concluded in a series of comprehensive and well-reasoned decisions of judges of this Court, that paragraph (b) requires consideration of proceeds of a business net of expenses but before tax.[22] This conclusion is plainly correct. I accept and adopt the reasoning of these decisions. Without repeating all that is said in those decisions, in the event of ambiguity, the courts should presume that Parliament intended to be fair. The only fair answer to this question is that paragraph (b) must intend to refer to the proceeds of a business net of expenses but before tax. Any other result would not be comparing like with like; and would have the perverse and unfair effect of penalising injured workers who attempted to overcome the negative impact of their injury on their employability by setting up their own business.
[21]Compare, eg: Alter v Alcon Laboratories (Australia) Pty Limited (supra); Boskovic v Road Maintenance Pty Ltd [2006] VCC 51; Caratozzolo v Metroll Pty Ltd & Anor [2007] VCC 1006 with Howell v Border Express Pty Ltd (supra); Thompson v Concept Hiring Services Pty Ltd (Unreported, VCC, 14 November 2006, Lewitan J); Guthrie, Shane v Campion Education (Aust) Pty Ltd [2009] VCC 1141; Adjemian v Victorian WorkCover Authority (supra); Hodge v VWA [2019] VCC 923
[22]See particularly Hodge v VWA (supra); Thompson v Concept Hiring Services Pty Ltd (supra) and Guthrie, Shane v Campion Education (Aust) Pty Ltd (supra).
38A profit and loss statement was tendered in evidence by Mr Saitoski without objection. That profit and loss statement showed that the company made a loss of $23,440.35 for the six months ended 31 December 2021.
39Although it did not object to its tender, the defendant submitted that I should not give any weight to this profit and loss statement. It relied upon underlying transaction reports which showed the expenses claimed included thousands of dollars of expenses described as “Apple.com” (recorded as “Computer, Phone & Internet Expenses”) as well as a number of expenses which appeared to be the purchase of takeaway meals (recorded as “Miscellaneous Expenses”). Mr Saitoski was unable to adequately explain, in cross-examination, why these items were valid expenses of the company.
40However, it would not be reasonable to expect Mr Saitoski to be able to explain the expenses of the company given his poor written and spoken English skills and lack of involvement in the management of the company. Further, the defendant made no attempt to perform a forensic analysis of those transactions or to demonstrate that the profit of the company would be more than $26,157.60 if the questionable transactions were excluded.
41I accept that Mrs Saitoski was available, but not called, to give evidence. Given this, it is open to me to infer that her evidence would not have assisted Mr Saitoski. However, an adverse inference of this kind is not a substitute for positive evidence that the company is making a profit when the documentary evidence tendered in evidence suggests that it is not.
42I am not prepared to dismiss the profit and loss statement as having no probative value solely because it appears to include some questionable, unexplained transactions. In any event, even if all computer, phone and internet expenses and miscellaneous expenses were excluded, the company would still have made a loss in the last six months. I am satisfied, on the balance of probabilities, that the company is not currently making any profit. Accordingly, it cannot, on any view, be said that Mr Saitoski is currently earning income from personal exertion.
43Mr Saitoski satisfies the current loss of income earning capacity threshold.
Will Mr Saitoski continue permanently to suffer a loss of earning capacity of 40 per cent or more?
44The Medical Panel’s opinion is that Mr Saitoski is suffering a persistent dysfunction of the left shoulder so severe that it renders him incapable of working in suitable employment. In reaching this conclusion, the Medical Panel carefully considered each suggested occupation against Mr Saitoski’s physical capacities as well as his training, skills and experience. It concluded that none of the suggested occupations were suitable employment for Mr Saitoski.
45I have accepted that Mr Saitoski somewhat downplayed his role at the chicken shop in his further affidavit. However, this does not undermine the Medical Panel’s detailed and careful reasons for concluding that none of the suggested occupations were suitable employment. Each suggested occupation had requirements well above anything that Mr Saitoski was seen to perform in the chicken shop surveillance, such as repeated lifting or driving.
46The Medical Panel was not asked to, and does not, deal with permanence. However, it found that, eight years after the injury, that Mr Saitoski is suffering from a persistent dysfunction of the left shoulder severe enough to render him incapable of working in any suitable employment. This is supportive of a conclusion that Mr Saitoski will continue permanently to suffer a loss of earning capacity of 40 per cent or more.
47Dr Peter Blombery is a medico-legal consultant physician retained by Mr Saitoski. His view is that Mr Saitoski’s prognosis for recovery is poor and it is likely that Mr Saitoski’s injuries will preclude him from working for the foreseeable future.
48Dr Tony Kostos is a treating rheumatologist. He describes Mr Saitoski’s condition as “basically untreatable”.[23]
[23] PCB 83
49Mr Michael Dooley is a medico-legal orthopaedic surgeon retained by the defendant. He accepts that Mr Saitoski’s condition is permanent, stating that he does not believe that Mr Saitoski will have the physical capacity to return to his preinjury work; or any regular heavy physical work; or work that involved a lot of inactivity at and above shoulder level; or as a traffic controller; or a fork lift driver. However, he believes that Mr Saitoski has a current physical capacity for light work, in occupations such as a light assembler, light processor or packer of light goods. To the extent that Mr Dooley is of the view that Mr Saitoski has a current capacity for suitable employment, it is inconsistent with the Medical Panel.
50The weight of the evidence is that Mr Saitoski’s condition is permanent. In any event, to the extent of inconsistency, I prefer the opinions expressed in the reasoning of the Medical Panel (being the views of three independent medical practitioners) and the report of Dr Blombery to those of Mr Dooley.
51The defendant submitted that there were suggestions for rehabilitation in the evidence which had not been taken up by Mr Saitoski, such as a pain management course, physiotherapy and psychological or psychiatric therapy. However, Mr Saitoski has had physiotherapy in the past, and has undergone a cortisone injection, surgery and a pain management course. Over eight years after the incident, the Medical Panel has concluded he has a persistent left shoulder injury so severe it renders him incapable of suitable employment. The burden of proof on Mr Saitoski does not require him to exclude any possibility that further treatment might improve his symptoms. In all the circumstances, I am satisfied that Mr Saitoski’s current physical condition is permanent.
52The defendant also submitted that with retraining Mr Saitoski might be able to broaden the roles he could perform. I find that suitable employment for Mr Saitoski is limited to roles of a physical nature. Mr Saitoski is 46 years old and has only a primary school education. After nearly 18 years in Australia, his English language skills are poor. It is not realistic to expect that retraining will bring Mr Saitoski to a level where he can obtain employment with any clerical or communication component.
53Finally, the defendant submitted that the chicken shop might provide Mr Saitoski a future income earning capacity. It is possible that the profitability of the chicken shop will improve over the years, particularly as the impacts of COVID-19 lessen. However, I have found that Mr Saitoski’s physical limitations will continue. In that context, I am satisfied, on the balance of probabilities, that he will never be an equal partner in the operation of the chicken-shop business. His role will be limited to helping out for short periods of time during the day, with frequent breaks, working no more than two or three hours per day. Indeed, it may be that, as the fortunes of the chicken shop improve, the company will be able to employ staff and Mr Saitoski will be able to rest more and work less.
54In all the circumstances, I am satisfied that Mr Saitoski will continue permanently to suffer a loss of earning capacity of 40 per cent or more as a result of the physical consequences of his left shoulder injury.
55For completeness, I am also satisfied that this is a consequence which is “very considerable”, in the sense that it is “more than ‘significant’ or ‘marked’”.
56Mr Saitoski need not show permanence for both the physical and mental consequences of his left shoulder injury. It is sufficient to show permanence in relation to the physical consequences. It appears that Mr Saitoski has had some improvements in his mental health flowing from his involvement in the chicken shop. There is good reason to hope that these improvements will continue. I am not satisfied that Mr Saitoski will continue permanently to suffer a severe mental disorder.
Conclusion
57I am satisfied that Mr Saitoski has suffered an impairment to his left shoulder which is serious with respect to its loss of income earning capacity consequences.
58I will grant Mr Saitoski leave to bring proceedings for pecuniary loss damages and pain and suffering damages.
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Certificate
I certify that these 15 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 17 March 2022.
Dated: 17 March 2022
Jane Le
Associate to her Honour Judge Tran
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