Er v Victorian WorkCover Authority
[2023] VCC 2006
•13 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-01858
| KAZIM ER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 17 and 18 October 2023 | |
DATE OF JUDGMENT: | 13 November 2023 | |
CASE MAY BE CITED AS: | Er v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2006 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – permanent serious impairment and loss of body function – injury to left shoulder – pain and suffering and economic loss consequences – compensability of injury not disputed for this application – figure representing the plaintiff’s “without injury” and “with injury” earnings in dispute – self-employed Uber driver – deductions of expenses from gross income disputed – whether plaintiff retained a capacity to work in other suitable employment – rudimentary level of English – limited education and skills – credit not in dispute
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325 and s335; Transport Accident Act 1986, s6; Accident Compensation Act 1985, s93 and s95
Cases Cited:Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439; Johns v Oaktech Pty Ltd [2020] VSCA 10; Nicholson v Victorian Workcover Authority [2016] VSCA 146; Boskovic v Road Maintenance Pty Ltd [2006] VCC 51; Caratozzolo v Metroll Pty Ltd & Anor [2007] VCC 1006; McLaren v Dubbo Grazing Services [2009] VCC 526; Guthrie v Campion Education (Aust) Pty Ltd [2009] VCC 1141; Howell v Border Express Pty Ltd [2012] VCC 1612; Adjemian v Victorian WorkCover Authority [2017] VCC 1890; Hodge v Victorian WorkCover Authority [2019] VCC 923; Edzevit Saitoski v GJ and K Cleaning Services Pty Ltd [2022] VCC 299; Euroasia (Pacific) Pty Ltd v Narain & Ors [2008] VSC 524; Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121
Judgment: Leave granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering and economic loss in respect of the left shoulder.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr B Anderson | Zaparas Lawyers |
| For the Defendant | Ms S De Guio | TG Legal + Technology |
HER HONOUR:
Introduction
1This is an application by Mr Kazim Er (“the plaintiff”) for leave to bring common law proceedings for pain and suffering and economic loss pursuant to section 325(1)(a) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”).
2Between 2013 and 2020, and in particular during August 2019, the plaintiff suffered an injury to his left shoulder in the course of his employment with Citywide Garden and Building Supplies (“the employer”).[1] The employer’s business was owned and operated by the plaintiff’s brother-in-law.[2]
[1]Written “Summary of the Plaintiff’s Pecuniary Loss Case” dated 17 October 2023 and handed up on 18 October 2023 (“the Plaintiff’s Submissions”) at paragraph 4
[2]Transcript (“T”) 24
3The plaintiff was employed as a yardman/labourer. His duties included loading heavy cement bags from pallets into a truck,[3] loading and unloading of gardening and building products,[4] lifting heavy bags of cement, lime, pebbles and soil, lifting bags off pallets and loading them into customers’ vehicles.[5] The duties were performed on a daily basis and at times involved lifting between 100-200 bags per day.[6] The plaintiff also drove a truck and loader.[7]
[3]Amended Plaintiff Court Book (“APCB”) 12
[4]APCB 22
[5]APCB 23
[6]APCB 23
[7]APCB 24
4In this proceeding, the relevant injury is to the left (non-dominant) shoulder, and the relevant body function is the left upper limb.[8]
[8]T13
5For the purposes of this application only, the defendant did not dispute the compensability of the injury.[9]
[9]T20
6The application proceeded in the usual way. Only the plaintiff was required for cross-examination, and all other evidence was tendered by the parties from their respective Court Books. The plaintiff gave his evidence with the assistance of a Turkish-language interpreter.
7Counsel for the defendant provided the Court with a summary of the plaintiff’s post injury earnings as an Uber driver, the figures for which were derived from a folder of invoices provided to the Court.[10] This document was agreed to be an accurate summary of those invoices[11] and accordingly I have had no regard to the individual invoices contained in the folder.
[10]Amended Defendant’s Court Book (“ADCB”) Volume 2, pages 125-564; this is also Exhibit D2
[11]T180
8Senior counsel for the plaintiff provided a written outline of argument at the conclusion of the hearing.[12]
[12]The Plaintiff’s Submissions
Issues for determination
9The issues for determination by the Court are as follows:
(a) The figure which most fairly represents the plaintiff’s “without injury” earning capacity;
(b) The figure which most fairly represents the plaintiff’s “with injury” earning capacity, which in part required determination whether expenses should be deducted from his gross income from his Uber driver self-employment;
(c) Whether the plaintiff retained a capacity to work in suitable employment, other than the work which he is currently performing as an Uber driver; and
(d) Whether the plaintiff’s pain and suffering and economic loss consequences meet the narrative test.
Background and summary of facts
10The plaintiff is 51 years old. He was born in Türkiye. He is married and has two adult sons. He lives in Wallan, in Victoria.
11The highest level of education attained by the plaintiff was primary school in Türkiye, and he subsequently worked in that country in a trade fixing vehicle brake linings.[13]
[13]APCB 11
12The plaintiff immigrated to Australia in 1994. On arrival, he attended English classes for a short period of time.[14] Aside from being able to read addresses, he has very little capacity to read English and only rudimentary spoken English.
[14]T65 and T79
13Between 1994 and 2012, the plaintiff worked as a bricklayer, initially as an employee and later in his own business “Kazim Bricklaying Pty Ltd” (“Kazim Bricklaying”).[15]
[15]T22
14In his viva voce evidence, the plaintiff told the Court that Kazim Bricklaying performed work for big companies like Simmonds Homes and also had other customers. The plaintiff agreed that he was able to work with building plans, write up his own invoices and receive payments for his work. He also employed three “external workers”.[16] If there was anything in the purchase orders or invoices which he did not understand (due to his limited English skills), his wife helped him.[17]
[16]T23
[17]T23-24
15In 2013, the plaintiff commenced work for the employer. This was a family-run business, owned/operated by his wife’s brother who is also from Türkiye.[18]
[18]T24 and APCB 12
16In October 2016, while performing his work duties, the plaintiff first experienced left shoulder pain. He underwent an ultrasound, requested by his general practitioner (“GP”) Dr Erciyas, which was reported as “normal”.[19]
[19]APCB 12 and 63
17In August 2019, while loading heavy cement bags at work, the plaintiff again experienced left shoulder pain. He attended Dr Erciyas who again requested an ultrasound. This time, the ultrasound revealed a “partial thickness posterior tendon tear measuring 9mm x 9mm” and “associated subacromial bursitis”.[20] The plaintiff then commenced performing lighter duties at work in the form of driving a truck.[21]
[20]APCB 64
[21]APCB 12
18On 2 November 2020, Mr Russell Miller (Orthopaedic Surgeon) performed a “left shoulder arthroscopic sub-acromial decompression and mini open cuff repair”, excising the subacromial bursa and performing a biceps tenotomy (“the surgery”).[22]
[22]APCB 68-69
19The plaintiff ceased work shortly prior to the surgery. Following the surgery, the plaintiff was unable to return to work due to “ongoing left shoulder problems”.[23]
[23]APCB 13
20In his affidavit sworn on 29 November 2022, the plaintiff deposed that his relationship with the employer deteriorated after he lodged a Workcover claim, and he resigned in July 2021.
21In early 2022, the plaintiff became a self-employed Uber driver. He continues in that enterprise. His hours are from 7.00am until about 4.30pm or 5.00pm, five days a week.[24]
[24]T30
22According to the stamps in his passport, the plaintiff has made the following trips to Türkiye:
(a) between 9 August 2018 and 18 September 2018;[25]
(b) between 2 August 2022 and 1 October 2022;[26] and
(c) between 14 June 2023 and 23 July 2023.[27]
[25]ADCB 538, 540
[26]T43 and ADCB 539
[27]T43 and ADCB 540
Summary of findings
23For the purposes of s325(2)(f)(ii) of the WIRCA, the figure which most fairly reflects the plaintiff’s “without injury” earning capacity is $84,740, being his gross earnings from employment in the 2018 financial year. I find work-related expenses ought not be deducted from that figure. The 60% figure is therefore $50,844, or $977.77 per week.
24For the purposes of s325(2)(f)(i) of the WIRCA, the plaintiff’s “with injury” earnings as an Uber driver are to be calculated by deducting the business-related expenses nominated in his tax returns. The relevant figure is $16,724 per annum or $321 per week.
25I find that due to the plaintiff’s very limited English skills and education, he has no capacity to retrain in or perform all but one of the roles proposed by the defendant, namely Courier Driver (light items). This job does not require him to have better English skills than he possesses.
26I find however that the plaintiff is not capable of performing the job of Courier Driver (light items) as the inherent demands of the role are outside the restrictions attributable to his left shoulder condition.
27I find on the evidence that the plaintiff is unable to earn more than 60% of gross income from personal exertion and has made out the necessary 40 per cent loss of earning capacity; and the consequences to him of the left shoulder impairment with respect to loss of earning capacity, when judged by comparison with other cases in the range of possible impairments, satisfies the narrative test.[28]
[28]Section 325(2)(b) of the WIRCA
28Consequently, the plaintiff is also entitled to leave in respect of pain and suffering damages.[29]
[29]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60] to [64]
The plaintiff as a witness
29In an application such as this, the credit of the plaintiff is often of great importance, both directly and indirectly.
30The opinions of medical witnesses and other experts depend upon what they have been told by a plaintiff and upon his behaviour and performance on examination and on testing.[30]
[30]Palmer Tube Mills (Aust) Pty Ltd and Anor v Semi [1998] 4 VR 439 at 448 per Brooking JA; and Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
31Credit is also important because the Court must be satisfied of the alleged consequences and their impact on the plaintiff’s residual capacity.
32The defendant made no submissions about the plaintiff’s credit.[31]
[31]T142
33The focus of the defendant’s submissions was that “there was a degree of pessimism” in the plaintiff’s viva voce evidence, about his capacity to work in the jobs which the defendant proposed as suitable. This was said to be either as a result of being overcautious or because the plaintiff did not have adequate understanding of what the proposed jobs entail and whether he considered they might be too hard for him.[32]
[32]T142-143
34Senior counsel for the plaintiff submitted that the plaintiff was a witness of truth, that he was motivated to return to work, and in fact did so even while continuing to be entitled to receive 130 weeks of weekly payments of compensation. Further, that the plaintiff was responsive to all questions asked of him, that he was not attempting to argue his case or evade the questions asked, and that he made appropriate concessions and at times made admissions against interest.[33]
[33]T169-170
35I accept these submissions.
36My impression of the plaintiff is that he was a witness who was careful in his answers and keen to ensure he was not answering more or less than was asked. For example, on a number of occasions, the plaintiff answered a question directly and then clarified with the cross-examiner whether it was appropriate to tell the Court the reason for his answer.[34]
[34]T55, T57 and T86
37Taking the plaintiff’s evidence into account, including his presentation in the witness box and the way in which he answered the questions, and also taking into account the fact that the defendant did not challenge the plaintiff’s credit, I find the plaintiff to be a credible and reliable witness.
The Plaintiff’s “without injury” earnings
38The defendant disputed the plaintiff’s proposed “without injury figure” of $87,823,[35] which figure was based on the 2016 tax return. Based on this, the 60% figure is $52,693.80 per annum or $1,013.30 gross per week.
[35]T18
39The defendant’s position was that the correct “without injury” figure is $84,740, which was based on the 2018 tax return, being within the three years prior to his injury. The defendant also made a collateral submission that this gross figure ought to be subject to a deduction of work-related expenses.
Calculating economic loss – the legislative provisions
40Given the defendant’s position, it is convenient to set out the applicable legislative provisions.
41To be successful in his application for leave with respect to economic loss, the plaintiff must satisfy the 40 per cent loss of earning capacity formula contained in s325(2)(f) of the WIRCA. That formula requires a comparison of:
(i) the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is—
(A)earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment—
at [the date of the hearing], whichever is the greater (“with injury earnings”), and—
(ii) 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 (“without injury earnings”) (emphasis added).
42Section 325(2) of the WIRCA (relevantly) provides:
“For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
(a)… income from personal exertion has the same meaning as in section 6(2) of the Transport Accident Act 1986 [Vic]”.
43Section 6(2) of the Transport Accident Act 1986 (the “TAA”) (relevantly) provides:
“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;”
but does not include (f) to (g) (various items which are not in issue in this case).
Submissions of the parties
44Counsel for the defendant made two submissions.
45First, that the gross figure of $87,823 based on the 2016 tax return is not the correct figure as it falls outside the three-year window.
46Second, in arriving at the correct figure, the court ought to deduct the work-related expenses claimed by the plaintiff during his employment.[36]
[36]T116
47I accept the first of these submissions. The plaintiff’s right shoulder tear was diagnosed in August 2019 after loading heavy cement bags at work. The three-year window pre-dating the injury would therefore commence in August 2016, being the 2017 financial year.
48I reject the second submission. It was being made in the context of the defendant’s other submission that expenses ought to be deducted from the plaintiff’s current earnings from his Uber business. The Court was asked to “compare like with like”, and, if deducting expenses from his current earnings, ought also to deduct the plaintiff’s work-related expenses nominated in his tax return from his “without injury” earnings.[37]
[37]T116, T136-138
49So understood, the submission is misconceived. The defendant accepted that plaintiff is not an employee of Uber[38] but was an employee at the time of his injury. Therefore, it is not a true comparison.
[38]T181-182
50Section 325(2)(f) of the WIRCA provides that “gross income from personal exertion” is the relevant income to be taken into account.
51Earnings received in the capacity of employee are not to be reduced by the work-related expenses claimed in the tax returns.[39]
[39]Nicholson v Victorian Workcover Authority [2016] VSCA 146 at paragraph [36]
52Accordingly, I reject the defendant’s second submission that the plaintiff’s gross earnings from personal exertion in the three-year window would be subject to a further deduction of the work-related expenses claimed in his tax return for the relevant year.
The figure which most fairly represents the Plaintiff’s “without injury” earning capacity
53In the three years before the injury, the highest gross figure earned by the plaintiff was $84,740 in the 2018 financial year. I find that this is the correct figure to be used in calculations pursuant to s325(2)(f) and no deductions ought to be made to that figure. The 60% figure is therefore $50,844 (or $977.77 gross per week).
“With injury” earnings – submissions of the parties
54According to the 2016–2023 tax returns tendered by the defendant,[40] the plaintiff’s total gross income from Uber in the 2023 financial year was $34,498. The total expenses were $23,563. The net proceeds were $10,935. This is the figure which the plaintiff submitted was relevant for the purposes of s325(2)(f)(i)(A).
[40]Exhibits D1 and D3
55The defendant submitted that the Court ought not deduct any expenses from the plaintiff’s gross income as a self-employed Uber driver, for the purposes of s325(2)(f) of the WIRCA. According to the defendant, $34,498 was the starting point for calculating the relevant “with injury” figure.
56The defendant further submitted that the figure $34,498 gross ($10,935 net of expenses) did not fairly reflect the plaintiff’s capacity, as, during that year, he took about one month off to go to Türkiye and had another month off the road while his Uber car was being repaired.
57I accept that submission. Senior counsel for the plaintiff submitted the figure ought to be annualised. This allows the assessment of the plaintiff’s earning capacity to relate to the full twelve-month period, as opposed to the ten months the plaintiff actually worked. Senior counsel submitted the figure of $10,936, expressed as an annual figure, is $16,724, which figure was not disputed by the defendant.
58The defendant also further submitted that the plaintiff cannot make out his claim for economic loss even if the expenses are deducted, because it was not clear what they might be, from week to week.[41]
[41]T138-139
59I reject that submission. The defendant tendered the plaintiff’s 2023 tax return. That document very clearly sets out what expenses have been deducted.[42] The contents of that document form the basis of the plaintiff’s calculation of the annualised figure of $16,724 (being gross receipts less expenses).
[42]Exhibit D1
60Counsel for the defendant conceded that sub-paragraph (b) of s6(2) of the TAA was the applicable provision in the case of a self-employed Uber driver.[43]
[43]T200–201
61Neither party relied on superior Court authority on this issue.[44]
[44]The decision of Nicholson v Victorian Workcover Authority [2016] VSCA 146 was provided to the Court; however, at paragraph [38] the Court of Appeal expressly stated it was not expressing any view on the proper construction of sub-paragraph (b) of the definition of income from personal exertion in s6(2) of the TAA
62Counsel for the defendant relied on the following decisions of this Court:
(a) Boskovic v Road Maintenance Pty Ltd [2006] VCC 51 (“Boskovic”); and
(b) Caratozzolo v Metroll Pty Ltd & Anor [2007] VCC 1006 (“Caratozzolo”).
63In Boskovic, the plaintiff was employed as an independent contractor to perform road maintenance ‘labourer and truck driver’ duties for the defendant. On the evidence in that case, his status as an independent contractor enabled him to claim “business expenses”, some of which were depreciation, interest (both in Australia and overseas) and motor vehicle expenses. The Court found the plaintiff had in fact been an employee, and applied sub-paragraph (a) of the definition in s6(2) of the TAA, not sub-paragraph (b).[45]
[45]Boskovic v Road Maintenance Pty Ltd [2006] VCC 51 at paragraphs [68] to [73]
64As the plaintiff is a self-employed Uber driver, it is sub-paragraph (b) which is in issue in this case and accordingly Boskovic does not support the defendant’s position.
65At first glance, the decision in Caratozzolo appears to support the defendant’s position, however on closer examination that is not the case.
66In Caratozzolo, following a compensable injury at work, the plaintiff commenced self-employment as truck driver. The plaintiff’s gross annual income from that business placed him in a position where he exceeded the 60% threshold. Deducting expenses, however, left him with income which did not exceed the threshold and would have entitled him to leave to commence proceedings for economic loss.
67The Court in Caratozzolo was referred to and considered itself bound by Glazebrook v Accident Compensation Commission[46] (“Glazebrook”), a decision of the Full Court of the Supreme Court of Victoria.
[46] [1988] VR 454
68Glazebrook was a case stated concerning the proper method for the calculation of pre-injury average weekly earnings under s93 and s95 of the Accident Compensation Act 1985. The decision related to the earnings of an employee truck driver who operated his own truck under the terms of his employment.
69Glazebrook is authority for the proposition that for the purposes of calculating the employee truck driver’s pre-injury average weekly earnings, the gross rate of pay paid by the employer is the appropriate figure, not the gross rate of pay less the expenses associated with the operation and maintenance of the truck by the employee.
70The Court in Caratozzolo considered itself bound to apply Glazebrook in calculating the plaintiff’s “with injury earnings” from his truck driver business. The result was that the gross income without deduction of expenses was found to be the relevant figure. This resulted in what the Court considered was an unfair result for the plaintiff in that he was denied leave to commence proceedings for economic loss damages.
71Having considered Caratozzolo carefully, I consider the defendant’s submission to be misguided and that following it would lead to error.
72Since that case, there have been numerous decisions of this Court which support the plaintiff’s position; namely, that his gross income from personal exertion in his Uber business is to be calculated by deducting the expenses of running that business.[47]
[47] See McLaren v Dubbo Grazing Services [2009] VCC 526 (Judge K L Bourke); Guthrie v Campion Education (Aust) Pty Ltd [2009] VCC 1141 (Judge Coish); Howell v Border Express Pty Ltd [2012] VCC 1612 (Judge Bowman); Adjemian v Victorian WorkCover Authority [2017] VCC 1890 (Judge O’Neill); Hodge v Victorian WorkCover Authority [2019] VCC 923 (Judge Dyer); and Edzevit Saitoski v GJ and K Cleaning Services Pty Ltd [2022] VCC 299 (Judge Tran).
73The principle of judicial comity allows me to follow the long line of decisions of judges at first instance in this Court.[48]
[48]Euroasia (Pacific) Pty Ltd v Narain & Ors [2008] VSC 524 at paragraph [85] (Hollingworth J)
74Accordingly, I find that the correct approach to calculating the plaintiff’s “with injury” income from personal exertion as a self-employed Uber driver is to deduct the expenses claimed by him in his taxation return for 2023. That figure, after deduction of expenses, is $10,935; annualised to cover a full twelve months of work, the figure is therefore $16,724.
75The plaintiff’s loss of earning capacity is therefore measured by comparing the plaintiff’s current “with injury” earnings from personal exertion of $16,724 to the figure which most fairly represents the gross income from personal exertion in the three-year window of $84,740 in the 2018 financial year.
76The 60% figure being $50,844, the plaintiff appears to have made out the necessary loss for the purposes of the economic loss test.
77However, the Court’s task has only just begun. Having made findings about the figures in dispute, I now turn to the evidence and to the question whether the plaintiff has, or after rehabilitation or retraining would have, a capacity for any employment including any alternative employment which, if exercised, would result in the plaintiff earning $50,844 or more.[49]
[49]Section 325(2)(g) of the WIRCA
78Before doing so I pause to note that the defendant tendered three reports in respect of capacity. The first was a “130 Week Vocational Assessment report” by WorkFocus dated 8 November 2022. The second was a “Labour Market Analysis report” by WorkFocus dated 18 August 2023. The third was a “Labour Market Analysis report” by WorkFocus dated 3 October 2023 (“the vocational reports”).
79The defendant submitted that “all the jobs” nominated in the vocational reports met the definition of suitable employment for the plaintiff. These jobs are as follows:
(a) Pick/Packer;
(b) Traffic Controller;
(c) Delivery Driver;
(d) Product Assembler;
(e) Truck Driver; and
(f) Forklift Driver.[50]
[50]ADCB 52
The Plaintiff’s affidavits
80The plaintiff relied on three affidavits sworn by him on 29 November 2022, 7 August 2023 and 25 September 2023.
81In those affidavits, the plaintiff deposed to the following consequences of his left shoulder injury (in particular as to economic loss):
“The pain in my left shoulder gets worse with increased use of my left shoulder. ... However, the pain and feeling of numbness can increase even if I am sitting in one position for an extended period of time.
Due to my left shoulder injury I now have to avoid any activities which involve heavy lifting or repetitive strenuous use of my left shoulder. I have lost strength and movement in my left shoulder. I feel a stretching sensation in my left shoulder when I try to raise my left arm above shoulder height. My shoulder joint feels stiffer than it used to be. I now have to rely more on my right arm compared to how I used to be.
...
I continue to drive my Uber hybrid car. I am currently working for 5 to 5½ days per week. My income varies each week. My expenses have to come off my Uber fares. My left arm and shoulder get tired easily, so I rely more on my right arm with driving. My shoulder pain increases with long periods of driving. I have to rest my left arm on the console. I have to work with pain and this is a struggle. I try to take breaks when I can to manage my pain. I am doing my best to keep working however I am concerned about my future ability to continue working, particularly at the current hours I work each week.
(emphasis added)
Due to my shoulder injury I cannot return to my pre-injury employment. I can no longer work in physically demanding jobs such as labourer or bricklayer. I am currently earning much less money as an Uber driver compared to my pre-injury work. ...”[51]
“Due to my left shoulder injury I now have to avoid any activities which involve heavy lifting or repetitive strenuous use of my left shoulder. I have lost strength and movement in my left shoulder. I feel a stretching sensation in my left shoulder when I try to raise my left arm above shoulder height. I can also get a feeling of pins and needles when I do this. My shoulder joint feels stiffer than it used to be.”[52]
“I continue to drive my Uber hybrid car. I began doing this work in January 2022. I have continued with this work during 2022 and 2023. I am currently working for about 5 days per week on average. A normal day of work will be about 8-9 hours per day.
...
I am not earning a very big income from the Uber driving work compared to my pre-injury work for CWG Group Pty Ltd. ...
Due to my left shoulder symptoms I continue to struggle with my Uber driving work. I have to work with the ongoing pain every day, which is a challenge for me. I am doing what I can to work and earn an income. I believe that I am working to the limit of my work capacity. My left arm and shoulder get tired easily, so I rely more on my right arm with driving. My left shoulder pain increases with long periods of driving. I often have to rest my left arm on the console, and I take the Nurofen Plus medication as required to help with the stronger flare-ups of pain. The nature of Uber driving work also gives me rest periods because the work is not always constant from hour to hour and there are often breaks between jobs. The breaks help me to rest and manage my symptoms. The Uber driving is basically self-employed and it allows me to have control over my work hours. I feel that I am doing my best to manage in a light job which does not put too much strain on my left shoulder. However, I am very worried about by ongoing left shoulder problems ...
...
I have limited skills in the English language. I do not have any formal qualifications and I have not done any office work. I cannot read or write in English. I have basic verbal communication skills in English.”[53]
[51]APCB 14-16
[52]APCB 18
[53]APCB 19-21
82In cross-examination, the defendant did not challenge these assertions.
83The focus of the defendant’s cross-examination was twofold.
84First, the defendant challenged the extent of the plaintiff’s limitations in the English language and whether he had capacity to complete forms and the like.
85Second, the defendant challenged the plaintiff’s residual capacity and whether he had capacity to perform a range of duties in proposed “suitable employment”.
86The defendant conceded that the plaintiff cannot return to his pre-injury duties.[54]
[54]T164
87The defendant put most of the jobs in the vocational reports to the plaintiff, all but one of which I find are unsuitable having regard to the definition of suitable employment, given the plaintiff’s “age, education, skills and work experience”.
88Before embarking on an analysis of the medical evidence on capacity and the plaintiff’s restrictions, it is convenient to dispose of this first issue as it impacts upon the plaintiff’s capacity to perform a large number of the proposed jobs.
The Plaintiff’s English language abilities
89The Vocational Assessment 130 Week Report from WorkFocus dated 8 November 2022 contains the following preliminary recommendation:[55]
“Mr Er has concerns that his lack of English language skills would be [a] significant barrier to start new employment options. Therefore, before commencing any job or retraining WorkFocus Australia recommends that Mr Er participate [in an] English course retraining first.” (Emphasis added)
[55]ADCB 51
90The report nominates that an interpreter was “required”; however, it appears that no interpreter was present during the assessment.[56] Accordingly, I approach the aspects of the report which refer to any history provided by the plaintiff with some caution.
[56]ADCB 51 and 52
91In cross-examination, the plaintiff was asked about how he managed to find the Uber driving work, whether there were forms or interviews, and whether he participated in any training.
92The plaintiff, through the interpreter, told the Court that a friend suggested he try Uber driving and that he completed the necessary application forms online. The plaintiff said that his wife helped him download the “Uber” application and she taught him how to use it. In order to operate his Uber enterprise he has an ABN and is registered for GST. The Uber invoicing and relevant tax accounting is all done by his wife.[57]
[57]T28-32
93When working as a bricklayer, the plaintiff had assistance from Turkish-speaking colleagues. In his pre-injury employment, he was working for his brother-in-law who was also Turkish. The plaintiff said he did not think he could do a course (to retrain in the proposed suitable employment positions) in English.[58]
[58]T87
94The plaintiff has been in Australia since 1994. Over the ensuing twenty-nine years, he has only managed to acquire very basic English skills.
95He told the Court that when he undertook his truck driving licence test, he was assisted to understand the questions by a Turkish-speaking instructor, and when he completed his “White Card” course for the construction industry, he was in a factory environment with other Turkish-language speakers and the instructor also spoke Turkish.[59]
[59]T77-78
96The plaintiff was asked about his participation in a job-seeking assistance program run by WorkFocus. He agreed that the consultant had identified the need to improve his English in order to improve his chances of getting a job, and he accepted he had not done anything to enrol himself in any course.
97The plaintiff explained that the focus of the program was getting him back to work, rather than retraining him in English or any other job. He also told the Court that his own focus was to return to work as he wished to provide for his family.
98There was no evidence that the plaintiff had ever been offered an English course.[60]
[60]T94
99During the plaintiff’s evidence, I spoke directly to him in English. It appeared to me he had a very rudimentary level of English. He said he spoke Turkish at home to his wife and children, watched Turkish internet television and Turkish news, and, although he can go to the shops and purchase what he needs, he cannot read a newspaper in English and only speaks to his neighbours “a little bit”. He struggled to understand the word “neighbour” and required the assistance of the interpreter to understand the question asked of him.[61]
[61]T85, T190
100Senior counsel for the plaintiff submitted that in all the circumstances, it was unrealistic to expect that the plaintiff could be retrained to attain anything other than a rudimentary level of English,[62] and that the Court could take into account the fact that he has been in Australia for almost thirty years and his English is unlikely to improve beyond its current level.
[62]T190 and the Plaintiff’s written submissions at paragraph 11
101In particular, senior counsel for the plaintiff relied on the plaintiff’s limited education and therefore limited ability to translate existing skills into learning a new language. Particular emphasis was placed upon the fact that at all times the plaintiff was assisted by an interpreter, and that he relied on his wife to assist him with learning to operate the Uber App and complete the paperwork associated with his Uber driving.
102In closing submissions, the defendant conceded that there was no evidence before the Court that even if the plaintiff undertook an English course, he would learn enough to enable him to undertake the various suggested retraining courses which would enable him to return to work in the suggested jobs.
103The defendant submitted that the Court should infer, from the recommendation made in the WorkFocus report that the plaintiff do an English course, that “the recommendation wouldn’t be made if it’s not going to be of any benefit”.[63]
[63]T159
104I reject that submission. There is no evidence before me that the plaintiff has any capacity to attain any significant benefit from an English course and no evidence that he could learn enough English to complete, for instance, the Traffic Controller course, the First Aid course, and the Traffic Management course which were suggested requirements for the proposed Traffic Controller job.[64]
[64]ADCB 91
105I accept the submissions made on behalf of the plaintiff. I find the plaintiff has discharged his onus of proving an inability to be retrained in the English language, and the extent of that inability extends to an inability to undertake the training recommended for the Traffic Controller job and the Pathology Courier position, each of which requires either “excellent communication skills”[65] or the ability to complete documents such as site hazard assessments and implement control measures.[66]
[65]ADCB 102
[66]ADCB 93-94
The Plaintiff’s education, skills and work experience
106The “WorkFocus Australia Labour Market Analysis Report” dated 25 September 2023 sets out the various skill levels, core duties and physical requirements of the jobs proposed by the defendant.[67]
[67]ADCB 90
107There are a number of jobs which the defendant suggested the plaintiff could do. However, having regard to the job requirements provided in that report and his education level, I consider that they do not meet the definition of suitable employment under the Act.
108I find that the plaintiff is unsuited due to his level of English and his limited education, for all but one of the suggested jobs, for reasons I set out below.
109The jobs “Traffic Controller”, “Picker Packer” and “Delivery Driver (light items) require a minimum skill level of “AQF Certificate I or Compulsory Secondary Education ANZSCO Skill Level 4”.[68] There was no evidence about what AQF Certificate I entails.[69] It appears that it may be commensurate with a compulsory secondary school level of education, given that it is phrased in the alternative, but there is simply no evidence about it.
[68]ADCB 91, 95 and 99
[69]T161
110In the case of the Delivery Driver (light items), the report suggests that at least one year of relevant experience may substitute for the formal educational requirements. The plaintiff had worked as a truck driver in his previous employment, which he performed in his pre-injury employment with his brother-in-law who was a Turkish speaker so this may substitute for the education requirements.
111The Pathology Courier job requires “excellent communication skills” and the ability to “prepare and deliver reports and stock control in the main laboratory” and “compliance and adherence to policies and procedures, work health and safety and quality assurance”.[70]
[70]ADCB 102
112The Product Assembler (light Items) and the Forklift Driver roles require a skill level of AQF Certificate II or II (ANZSCO Skill Level 4). There was no evidence about what these skill levels entail, and the Court is not in a position to make an assessment whether they would meet the definition of suitable employment for the plaintiff.
113In the case of the Forklift Driver position, the report suggests that at least one year of relevant experience may substitute for the formal educational requirements, but in some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification.
114The “Product Assembler” job requires “ability to read and understand Standard Operating Procedures”.[71] The plaintiff cannot read English and, accordingly, this position does not meet the definition of suitable employment for the plaintiff.
[71]ADCB 105
115The plaintiff tendered a report by a Human Resources Consultant (Mary Oliver) from Flexi Personnel dated 11 September 2013.[72] In that report, Ms Oliver provided an analysis of the job requirements of two positions, “Traffic Controller” and “Truck Driver”, from a “recruitment perspective”.[73]
[72]APCB 102
[73]APCB 103
116Ms Oliver reported that for the Traffic Controller position, “First Aid” qualifications are also “highly desirable”, which requires both theory and practical assessments, as well as English-language skills which extend to being able to understand the meaning and spelling of words.[74]
[74]APCB 103
117In relation to the Truck Driver position, Ms Oliver reported that the English-language skills required for that position extended to being able to understand the meaning and spelling of words, rules of composition and grammar, and the ability to read work-related information.
118I accept the opinion of Ms Oliver as it accords with both the Labour Market Analysis report and the 130-week Vocational Assessment.
119By reference to the plaintiff’s age (51), his limited education (primary school), skills (rudimentary English) and work experience (brick layer and labourer), I find the jobs of Traffic Controller, Truck Driver, Product Assembler and Picker Packer are not suitable employment for the plaintiff within the meaning of the Act.
120This disposes of all but two of the jobs which the defendant suggested the plaintiff was able to do. Some of these, as put by the defendant, derive from the examples of jobs provided in the Labour Market analysis reports. The two remaining jobs are “Pizza Delivery Driver” and “Delivery Driver (light items)”.
121For the Pizza Delivery Driver, a valid driver’s licence is required. The plaintiff has a driver’s licence.
122Remembering that the 60% figure is $50,844, the plaintiff would still meet the test for economic loss even if I find he could perform the Pizza Delivery Driver job full time. This job pays $22 per hour.[75] Per week this would be $880 and per year it would be $45,760.
[75]ADCB 101
123Having disposed of a large number of jobs which I find are unsuitable for non-injury-related reasons, or which do not enable the plaintiff to meet the threshold, it is now convenient to deal with the medical evidence and the plaintiff’s evidence about and suitability for the remaining job Delivery Driver (light items).
Medical evidence (treating Doctors)
124The plaintiff tendered a number of reports of treating Orthopaedic Surgeon Mr Russell Miller. On 15 April 2021 (and again in August 2021), Mr Miller reported that following the surgery, the plaintiff has “ongoing problems with the left shoulder”, and that the ultrasound imaging suggested the rotator cuff was intact. He recommended conservative treatment.[76]
[76]APCB 74
125In May 2021, Mr Miller opined that the plaintiff would not be fit to return to his pre-injury employment but could:
“return to lighter physical work, provided it did not involve large amounts of repetitive left arm movement, use of the left arm above shoulder position, or lifting weights more than 2kg. These restrictions would remain in place for the next 3 months and probably indefinitely.”[77]
[77]APCB 75 and 78
126Mr Miller’s most recent report is dated 1 February 2022. In that report, Mr Miller opined that the plaintiff has:
“complex pathology in the shoulder with probable capsulitis and rotator cuff dysfunction. I think he will require ongoing conservative treatment and I will arrange for him to have a hydrodilatation with local anaesthetic and corticosteroid. I do not think that further surgery will assist him and I do not think he will be fit to return to his previous occupation.”[78]
[78]APCB 118
127The plaintiff tendered two reports of treating General Practitioner (“GP”) Dr Erciyas.
128In both reports, the most recent of which is dated 4 September 2023, Dr Erciyas reported that:
“... Mr Kazim Er has a chronic rotator cuff dysfunction on his left shoulder. He also has capsulitis of his left shoulder.
...
... the most recent injection into his left shoulder in February 2022 ... was an ultrasound guided steroid and local anaesthetic injection.
Although [he] had local anaesthetic injection and surgery, he still has severe complaints mainly pain and left shoulder dysfunction.
It is of my opinion that he cannot work at his previous job using heavy machinery.”[79]
[79]APCB 85
Medico legal opinions
129The plaintiff tendered a report by Orthopaedic Upper Limb Surgeon Mr Ash Chehata dated 11 August 2023. Mr Chehata diagnosed post-surgical adhesive capsulitis and reported that “the hydrodilatation has provided no significant improvement” and that the plaintiff was continuing to have weekly physiotherapy, and Panadeine Forte and Nurofen Plus once every few days.[80]
[80]APCB 89
130Mr Chehata was asked to provide an opinion on the plaintiff’s suitability for the jobs suggested in the 130-week vocational report dated 8 November 2022. He opined that the plaintiff’s choice of Uber driving “is very likely to be the ideal scenario, as opposed to the duties listed in the Vocational Assessment”.[81]
[81]APCB 93
131I give little weight to Mr Chehata’s opinion on capacity for two reasons. First, because he is not an occupational physician; and second, because there is no analysis in his report as to the suggested jobs and duties and no correlation of his opinion to his clinical findings.[82]
[82]Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at paragraph [96]
132The plaintiff tendered an opinion from occupational health specialist, Dr Eman Awad, dated 22 September 2023. Dr Awad conducted a clinical examination and found restricted range of movement of the shoulder without muscle wasting. Dr Awad considered that the plaintiff’s shoulder had not fully recovered and that he remains restricted in his movements with constant pain, which has persisted despite treatment”.[83]
[83]APCB 99
133Dr Awad noted a history that the plaintiff underwent the hydrodilatation, the recommended injection and Platelet Rich Plasma (PRP) treatment in Türkiye in 2023 with no improvement of his symptoms.[84]
[84]APCB 97
134In terms of capacity, Dr Awad opined that:
“Mr Er has no capacity for his pre-injury duties and there are no work place adjustments that would facilitate a return to work. He is permanently medically restricted from undertaking any repetitive movements with his left arm, working above shoulder height, carrying above 2 kg, lifting above 2 kg, pushing and pulling for the foreseeable future. This is a permanent partial incapacity.”[85]
[85]APCB 98
135Dr Awad recommended the following restrictions:
· Permanently restricted from repetitive pushing, pulling, lifting, carrying overhead, gripping and holding more than 2 kg with the left upper limb; and
· Not to use any power tools.[86]
[86]APCB 99
136I pause to note for completeness, that Dr Awad also considered that the remainder of the jobs proposed in that 130-week Vocational Assessment report were also unsuitable for the plaintiff on account of his injury-related restrictions. These include “Product Assembler”, “Pick Packer”, “Traffic Controller”, “Truck Driver”, and “Forklift Driver”.[87]
[87]APCB 100
137The defendant tendered a report of Occupational Physician Dr Joseph Slesenger dated 24 January 2023. Dr Slesenger conducted a clinical examination and noted a restricted range of movement of the left shoulder and found evidence of a “bicipital rupture”.
138Dr Slesenger diagnosed:
“-Rotator cuff tear, for which Mr Er has undergone a left shoulder arthroscopic sub-acromial decompression, mini open cuff repair ...
- Chronic left shoulder pain with evidence of adhesive capsulitis.”[88]
[88]ADCB 35
139In terms of restrictions, Dr Slesenger opined that the following restrictions apply:
· no push, pull, carry or lift over 5 kg on a repetitive basis and 10kg on an occasional basis;
· no sustained forward reaching; and
· no repetitive shoulder tasks.
140Dr Slesenger was provided with a copy of the 130 Week Vocational report dated 8 November 2022 and asked to comment on the plaintiff’s capacity to perform the jobs, “Delivery Driver, Traffic Controller, Forklift Driver and Truck Driver”.
141In relation to the job of “Delivery Driver”, Dr Slesenger opined “I advise a cautious approach to him returning to work in this role as there are job tasks underneath this job title that could lie outside his capacity limits”.[89] The remainder of the jobs, in the opinion of Dr Slesenger, all required a “job specific worksite assessment as there are tasks underneath this job title that could lie outside his capacity limits”.
[89]ADCB 36
142Counsel for the defendant submitted that “while Dr Slesenger does not endorse any of the roles, he didn’t dismiss them either, but it is not as helpful for the defendant as the defendant would like”.[90] Such a submission is of little assistance to the Court.
[90]T147-148
143Senior counsel for the plaintiff submitted that Dr Slesenger’s opinion ought to be construed by the Court as saying that Dr Slesenger was not certain the plaintiff has capacity to do any of those jobs.
144I accept that submission. Dr Slesenger was specifically asked “which of the jobs identified in the attached vocational assessment are suitable”. His answer was not that any one of them was suitable, but in fact that either a “cautious approach” or a “job specific worksite assessment” ought to be undertaken as there are tasks associated with each of the jobs “which could lie outside his capacity limits”.
145No Job Specific Worksite Assessment was tendered in evidence before the Court.
146The defendant tendered a “Certificate of Capacity” completed by the plaintiff’s treating physiotherapist, Isabella Imbesi, dated 12 September 2023. That document provided that the plaintiff has a capacity for suitable employment with the following restrictions:
· “no lifting or carrying over 10 kg at chest height” and
· “overhead lifting capacity limit 3 kg”.
147There is no report from Ms Imbesi in evidence. According to the Certificate of Capacity, Ms Imbesi is a physiotherapist. It is not clear what if any qualifications Ms Imbesi has to express an opinion on occupational capacity. The weight restrictions Ms Imbesi has imposed are five times higher than those provided by Dr Awad and Mr Miller, and double those provided by Dr Slesenger.
148The Certificate of Capacity does not state whether the weight restrictions are restrictions on repetitive lifting or on single occasions. Ms Imbesi also appears to consider overhead lifting as appropriate. No other expert considers that it is appropriate.
149I reject the opinion of Ms Imbesi as to the plaintiff’s restrictions in the Certificate of Capacity. It is against the weight of the evidence, it does not specify her qualifications to express such an opinion, and it is unclear.
150Taking all of the evidence into account, on the question of the plaintiff’s restrictions, I prefer the evidence of Mr Miller who is the plaintiff’s treating surgeon. However, it is necessary to say something about Mr Miller’s opinion on the plaintiff’s restrictions as it has changed over time.
151Mr Miller reviewed the plaintiff on 7 December 2020 (approximately one month after the surgery) via Telehealth. At that time, Mr Miller recommended the plaintiff not lift any weights greater than 5 kg with his left hand and continue with anti-inflammatory, analgesic and physiotherapy treatment.
152Following this assessment, the plaintiff continued to complain of ongoing problems with the shoulder and attended on Mr Miller for further assessments in April 2021 and again in May 2021.
153On 17 May 2021, Mr Miller revised his initial recommendation from 5kg to a more conservative restriction of 2kg lifting limit with the left arm with avoidance of work which required large amounts of repetitive left arm movements and use of the left arm above shoulder position.
154Mr Miller is the operating surgeon and is most familiar with the state of the plaintiff’s left shoulder. Mr Miller assessed the plaintiff on a number of occasions. His revised imposition of a 2kg lifting restriction is consistent with his acceptance of the plaintiff’s ongoing shoulder problems and is also in line with the opinion of occupational physician Dr Awad.
155Accordingly, I reject the opinion of the plaintiff’s treating physiotherapist and the opinion of Dr Slesenger who impose a higher lifting restriction, and find that the plaintiff is restricted from lifting more than 2kg with his left arm.
On the evidence, do the plaintiff’s restrictions fall within the physical demand levels for Delivery Driver (light items)?
156The vocational reports contain conflicting descriptions of the physical demands of the job of delivery driver (light items). In two reports the same job is described as involving “light physical demands”,[91] and in the third report the same job is described as involving “light to heavy physical demands”.[92]
[91]ADCB 58 “130 Week Vocational Report” dated 8 November 2022 and ADCB 99 “WorkFocus Labour Market Analysis Report” dated 3 October 2023
[92]ADCB 78 “WorkFocus Labour Market Analysis Report” dated 18 August 2023
157Both Labour Market Analysis Reports contain an appendix of definitions of physical demand work.
158In that Appendix, “light work” was defined as “exerting up to 9 kg of force occasionally, or up to 4.5 kg of force frequently, or a negligible amount of force constantly to move objects.” “heavy work” is defined as “exerting 23 kg to 45 kg of force occasionally or 11 kg to 23 kg of force frequently or 4.5 kg to 9 kg of force constantly to move objects.”[93]
[93]Ibid
159There is no definition in the appendix of the phrase “exerting kilograms of force”.
160Senior counsel for the plaintiff submitted that “exerting 9 kg of force” means “lifting 9 kg”, and “exerting” clearly equates to “lifting”.[94] It is not clear to me that this is in fact the case. I struggle to think of any job in which a person would be required to lift 23-45 kilograms as contained in the definition of “heavy work”.
[94]T53-54
161There is clearly a tension between the three reports as to whether the position of Courier Driver (light items) is properly to be classified as “light work” or “light to heavy work”.
162Assuming for a moment that the true position is that the job is properly to be characterised as “light work”, which would be accepting the description in the 3 October 2023 report. Assuming also that senior counsel is correct that “exerting” is the same as “lifting”, it is necessary to consider the evidence about the plaintiff’s capacity to do “light work” as a Delivery Driver (light items).
163Dr Slesenger does not confirm that the plaintiff has capacity to perform the duties of a Delivery Driver. Dr Slesenger’s report notes “there are tasks underneath this job title that could lie outside his capacity limits.”[95]
[95]ADCB 36
164Dr Awad’s report states this role is different to that of an Uber driver “as it requires him to carry and lift packages repetitively throughout the course of his shift which will all be heavier than 2 kg and therefore … he has no capacity for [this role].”[96]
[96]APCB 100
165Mr Miller also imposed a 2 kg restriction and specifically recommends the avoidance of “large amounts of repetitive left arm movement.”[97]
[97]APCB 75
166I find therefore that the weight of the evidence does not support the plaintiff’s capacity for the job of Delivery Driver (light items).
167Finally, it is necessary to deal with the defendant’s last submission that the Court can also find that the plaintiff has recovered and is therefore fit for the range of suggested jobs.
168In support of this submission, the defendant relied on a report of Orthopaedic Surgeon Mr Francis Ghan dated 21 August 2023. Mr Ghan conducted a clinical examination which revealed a restricted range of motion of the left shoulder; however, he considered that this was a function of “voluntary” rather than “actual” restriction.[98]
[98]ADCB 44
169It was not put to the plaintiff that he was voluntarily restricting his arm movement when he was assessed by Dr Ghan, so he has not had the opportunity to respond to this suggestion.
170Mr Ghan opined that the plaintiff’s “injury has resolved” because the post-surgery ultrasound “reported intact rotator cuff mechanism”.[99] Mr Ghan considered that the plaintiff was affected by “constitutional bursitis aggravated by the nature of his work”, but that the plaintiff had recovered from the work-related component, and “his current condition now has reverted back to its pre-existing state prior to the work injury, and any work related contribution has resolved”.[100]
[99]Ibid
[100]ADCB 45
171Mr Ghan is alone in his opinion.
172The defendant conceded that Mr Ghan is “a bit of an outlier” and that it had never been put to the plaintiff that he was effectively “putting it on” with his restricted range of movement.[101]
[101]T150-151
173Counsel for the defendant submitted the Court could still accept Mr Ghan’s opinion because he finds that the plaintiff has constitutional bursitis and that it is consistent with the plaintiff’s evidence that he can work full time, albeit with residual symptoms.[102]
[102]T151-152
174I reject that submission on two grounds.
175First, no other expert suggests the plaintiff was voluntarily restricting his range of movement or that the plaintiff had in any way recovered.
176Second, I prefer the opinions of the treating surgeon Mr Miller, the treating GP Dr Erciyas, Dr Awad, and to some extent the opinion of Dr Slesenger who does find that the plaintiff has ongoing pathology attributable to the work injury. I note in particular Dr Slesenger’s finding that the plaintiff has, on examination, “evidence of bicipital rupture” and a restricted range of movement with evidence of adhesive capsulitis”.[103]
[103]ADCB 32
177The evidentiary onus is on the defendant to adduce evidence that there was a job in the plaintiff’s area for which he was suited.[104] The defendant has failed to discharge that onus.
[104]Giankos v SPC Ardmona Operations Ltd [2011] VSCA 121 at paragraph [115]
Concluding remarks
178I find that the plaintiff’s limited capacity is reflected in his earnings from his Uber driving enterprise. He is capable of earning in that enterprise $16,724, which, when compared to the 60% figure of $50,844, results in the necessary loss entitling the plaintiff to leave to issue proceedings for economic loss damages.
179I find that when judged by comparison with other cases, the plaintiff has suffered a serious injury with respect to loss of earning capacity, as he has lost the capacity to earn more than 60 percent of the gross income from personal exertion which he was earning in his pre-injury employment, which loss will persist for the foreseeable future. The plaintiff is therefore also entitled to leave to proceed against his employer in respect to pain and suffering damages.[105]
[105]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraphs [60] to [64]
180I will hear the parties in respect to costs.
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