Etter v Total Clean Complete Services Pty Ltd
[2017] VCC 915
•21 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03935
| MARVIN WAYNE ETTER | Plaintiff |
| v | |
| TOTAL CLEAN COMPLETE SERVICES PTY LTD AND VICTORIAN WORKCOVER AUTHORITY | First Defendant Second Defendant |
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 June 2017 | |
DATE OF JUDGMENT: | 21 July 2017 | |
CASE MAY BE CITED AS: | Etter v Total Clean Complete Services Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 915 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the left wrist – cognitive impairment - pain and suffering conceded – pecuniary loss – permanent.
Legislation Cited: Accident Compensation Act 1985 (Vic); Transport Accident Act 1986 (Vic).
Cases Cited:Philippiadis v TAC [2016] VSCA 1; Guthrie v Campion Education (Aust) Pty Ltd [2009] VCC 1141; Hadley v Galzon Pty Ltd [2014] VCC 651; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622.
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC Mr J Fitzpatrick | Slater and Gordon |
| For the Defendant | Mr N Murdoch QC Mr M Hooper | Minter Ellison |
HER HONOUR:
Preliminary
1 Mr Etter is a 58-year-old man who suffered injuries in November 2012, whilst employed by the defendant to clean windows in a recently completed apartment complex. Mr Etter was standing on a ladder when he fell about three metres to the ground. He fractured his left wrist, struck his head and suffered facial lacerations.
2 Mr Etter claims that, as a consequence of this fall, he has suffered a serious injury to his left wrist as well as cognitive impairment. In order for Mr Etter to claim common law damages for these injuries, he must prove that the impairment arising from either injury satisfies the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act1985 (“ACA”).
3 The defendant accepts that Mr Etter suffered both injuries in the work accident, and that both injuries, separately, result in pain and suffering consequences to him which are permanent, and which can be described as at least very considerable. However, the defendant disputes that Mr Etter’s pecuniary loss consequences satisfy the definition of serious injury. It says that Mr Etter has failed to prove that, as a consequence of either his left wrist injury or his cognitive impairment, he has suffered a loss of earning capacity which is productive of a financial loss of at least 40 per cent on a permanent basis.[1] Further, the defendant contends that Mr Etter is likely to undergo fusion surgery to his wrist, resulting in a substantial improvement in his work capacity, such that he cannot now establish that any loss of earning capacity arising from his left wrist is permanent.
[1]As required by s134AB(38)(e)(i) and (ii) ACA
4 Only Mr Etter was called to give evidence and he was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 For the reasons which follow, I am satisfied that, as a consequence of his left wrist injury, Mr Etter suffers a loss of earning capacity of at least 40 per cent, and that such loss is permanent. However, whilst I am satisfied that his cognitive impairment has some impact upon his earning capacity, Mr Etter has failed to satisfy me that such impairment results in the requisite loss.
Mr Etter’s life and business affairs before the accident
6 Mr Etter was born in California, USA in 1959. He completed the equivalent of Year 12 at North Hollywood High School and thereafter completed a two year course in landscaping. Mr Etter then carried out contract landscaping work for approximately 11 years.
7 In 1988, Mr Etter moved to Australia, at which time he commenced work as a window cleaner on a self-employed basis. In approximately 2000, Mr Etter obtained an ABN and began to work under the name Able Window Cleaning.
8 In late 2001, Mr Etter returned to live in the USA where he continued to carry out window cleaning work until 2008.
9 In 2008, Mr Etter returned to Australia and again resumed window cleaning work.
10 In approximately 2011, Mr Etter also obtained work for Jamco Sign Services. Such work involved removing and replacing signs on trams and buses at depots in Camberwell, Doncaster and Lilydale.
11 In June 2012, Mr Etter also began working for Total Clean Complete Services Pty Ltd, the defendant in this proceeding. Such work involved cleaning windows on construction sites. Mr Etter said that he was usually assisted by his wife, Mrs Anna Etter, when competing this work, and that, depending on the size of the job, he would sometimes seek the assistance of one or two others.
12 Mr Etter said that any payment he received for jobs undertaken with Jamco and the defendant were paid to his business, Able Window Cleaning.
13 At the time of the accident, Mr Etter said that both businesses were on the increase, such that he worked very long hours in the 2012 financial year in an attempt to build up the income. Mr Etter estimated that, at the time of the accident, he was working on average 10 hours a day, six days a week. His work duties included hands-on physical tasks such as sign fitting and window cleaning, as well as all administrative tasks associated with the running of the business, including office work, phone calls, paperwork, and inspections. Mr Etter estimated that he was doing 15 to 20 hours of the sign fitting work, approximately 30 hours of window cleaning, and an additional 10 to 15 hours of “non hands-on work” associated with the running of the business.
Injuries and their consequences to Mr Etter
14 Mr Etter suffered his injuries on 28 November 2012, whilst cleaning high windows in an apartment complex. He understood the complex to have been recently completed by PRM Constructions Pty Ltd. Mr Etter said that he was using one of PRM’s ladders, when the feet of the ladder slipped on the timber decking, causing him to fall approximately three metres to the ground. Mr Etter believes that he briefly lost consciousness in the fall. He was then taken to the Royal Melbourne Hospital where he was diagnosed as having suffered a fractured scaphoid and a severe dislocation of his left wrist. He had also suffered lacerations to his left forehead and right chin.
15 On 29 November 2012, Mr Etter underwent surgery performed by orthopaedic surgeon, Mr Christopher Pullen. The procedure involved an open reduction internal fixation at the left scapular fracture and a closed reduction and internal fixation of the lunotriquetral joint.
16 Mr Etter remained in a plaster cast until 9 January 2013, at which time Mr Etter was noted to have a reduced range of motion in his wrist.
17 On 7 March 2013, Mr Etter underwent surgery for the removal of the wire in his wrist.
18 As Mr Etter continued to have ongoing pain and stiffness in his wrist, he was subsequently referred to plastic surgeon, Mr James Thomas. After reviewing Mr Etter in July 2013, Mr Thomas noted that Mr Etter had persistent DISI mal-alignment of the wrist and significant mid carpal arthritic change.
19 On 13 September 2013, Mr Etter underwent surgery performed by Mr Thomas. This procedure involved the removal of the screw in his wrist. At the same time, Mr Thomas also performed an arthroscopy, which revealed preserved articular surfaces in the radioscaphoid and radiolunate joints, essential degenerative TFCC tear which was debrided, and marked degenerative change in the mid carpal joint with full thickness cartilage loss.
20 Mr Thomas noted that Mr Etter had been able to return to work on modified duties and was of the opinion that his work capacity was unlikely to increase over time. Mr Thomas foreshadowed that Mr Etter may develop increasing pain in his left wrist, and thought that he may require “further salvage surgery for this problem."
21 Mr Etter said that he has not returned to see Mr Thomas, save for a post-operative review soon after his last surgery. He understood from Mr Thomas that the only further surgical option available to him, was to undergo a surgical fusion of his wrist. Mr Etter was aware, however, that he should hold off undergoing such surgery until his pain was unbearable. Mr Etter said he also wants to delay this surgery as he understands that he would need to have time off work, and therefore will not make any money and he will have to budget for this.
22 In addition to his left wrist injury, Mr Etter complains that since the accident, his memory has worsened, he suffers frequent headaches, he gets tired easily and he cannot concentrate as well.
23 As a consequence of his reported difficulties with memory and concentration, Mr Etter’s general practitioner, Dr Eugene Wong, referred him to neuropsychologist, Dr Peter Dowling, in August 2014. After undertaking a formal neuropsychological assessment of Mr Etter, Dr Dowling concluded that Mr Etter was suffering some persisting acquired cognitive limitations as a consequence of the accident. He noted that whilst many of Mr Etter’s cognitive functions were well preserved, he suffered limitations in the verbal domain, including limitations in higher level verbal expression, auditory verbal working memory, immediate and delayed verbal memory, verbal learning, verbal executive functions and retrieval processes. He also noted some limitations in the non-verbal domain including in the areas of interpersonal perceptiveness, non-verbal learning and non-verbal executive processes.
24 Dr Dowling considered Mr Etter’s cognitive impairment had,
“the potential to affect his work efficiency as well as limiting the number of hours that he can work because of mental fatigue.”
25 In August 2015, Mr Etter commenced treatment with neuropsychologist, Ms Sonia Thomas, whom he consulted on six occasions through to June 2016.
26 In a report dated 10 June 2016, Ms Thomas detailed the treatment she had provided Mr Etter to assist him in cognitive rehabilitation, as well as the strategies employed to assist him in coping psychologically with his cognitive impairment. Such strategies included a memory management system and use of a diary both for planning and remembering, in an attempt to reduce the number of errors at work as well as missed appointments. It was noted that Mr Etter had difficulties in responding to “on the spot” phone requests, and that he was better able to cope in conversations for which he had time to plan. In order to assist, Ms Thomas recommended that Mr Etter not answer his phone, and instead, that he listen to the voicemail message in order to then plan his response. Although Ms Thomas considered such strategies to be effective, she noted that Mr Etter remained challenged across a variety of work situations, and that he suffered mental fatigue leading to subsequent errors. In her opinion, Mr Etter was only capable of working on a part-time basis, in roles with which he was already familiar. Ms Thomas considered that Mr Etter needed to have flexibility of hours to accommodate his slower processing and need for energy conservation, and was of the opinion that on a long-term basis, Mr Etter’s work capacity would remain limited in terms of the degree of complexity of the work undertaken.
Mr Etter’s return to work after the accident
27 Following the accident, Mr Etter had approximately three months off work. Since returning, Mr Etter has continued to carry out sign removal works for Jamco, but now works only on the Doncaster bus line for approximately 15 hours per week. He said the majority of his time is spent on the tools with the remainder being spent off tools. He said he found it hard to pull signs off trams at the Camberwell tram terminal, and that driving to Lilydale was too far.
28 Mr Etter estimates that he now spends about five hours per week window cleaning, but that he is restricted to using his right hand. He said that some of this time is spent on the tools, with the remainder being spent off tools.
29 Mr Etter said that Mrs Etter helps him when he is at the bus depot, as well as with the window cleaning, and that it is her assistance that enables him to complete the tasks.
30 Mr Etter said that he is now only able to work 20 hours per week, as this constitutes his “absolute maximum capacity”. Mr Etter said that the flexibility of his jobs is such that, if he is unable to work or is in too much pain, he is able to stop and wait until it improves. He said that the physical work causes him an increase in his wrist pain, and that he is in a fair amount of pain for much of the time that he works. Mr Etter estimated that at the base level, his pain is 4 – 5/10, but said that it can be as bad as 7 or 8/10, particularly after work.
31 Since the accident, Mrs Etter has taken on more of the administrative work in the business. Mr Etter maintained that he is still very much aware of what goes on within it.
32 Mrs Etter also swore an affidavit in support of her husband’s claim. She confirmed that, prior to the accident, Mr Etter had worked on average at least 60 hours per week, and that, since the accident, he has been able to do sign fitting work on a limited basis, as well as some very limited cleaning. Mrs Etter said that she assists Mr Etter with the physical tasks of stripping signs off buses and window cleaning.
33 Mrs Etter confirmed that since the accident, she has taken over the management and administrative tasks associated with the business.
34 Mrs Etter also detailed the cognitive difficulties Mr Etter has had since the accident. She said that he can have difficulty remembering things and that he can demonstrate unclear and illogical thinking and decision-making, which can make it difficult to follow work procedures. Mrs Etter also observed that her husband now tires easily.
Mr Etter’s medico-legal evidence
35 Mr Etter’s solicitors arranged for Mr Etter to be examined by orthopaedic surgeon, Mr John Crock, in June 2016 and March 2017. In his report dated 16 June 2016, Mr Crock stated that, in his opinion, Mr Etter did not have the capacity to perform his pre‑injury duties and considered that such incapacity was permanent. He noted that Mr Etter was only able to work half a day before his left hand became incapacitated due to pain.
36 In his most recent report dated 25 March 2017, Mr Crock noted that Mr Etter was able to compensate at work by using his right hand, but that the disability in his left hand was severely impeding his ability to work. Mr Crock mistakenly reported that, in his belief, Mr Etter was working on a near full-time basis.
37 Mr Crock was of the opinion that Mr Etter’s prognosis was likely to involve a continuing deterioration of his condition unless he underwent surgical intervention. Mr Crock then considered that Mr Etter would, after a prolonged rehabilitation period, be expected to return to almost normal duties.
38 Mr Etter’s solicitors also arranged for Mr Etter to be examined by occupational physician, Dr Joseph Slesenger, in May 2017. Dr Slesenger considered only the left wrist injury and was of the opinion that, as a consequence of Mr Etter’s left wrist impairment, he had the following restrictions:
·avoid push/pull, carry or lift over five kilograms;
·avoid repetitive left wrist work;
·avoid gripping;
·avoid use of power tools.
39 Dr Slesenger was of the opinion that Mr Etter should not be working as either a sign fitter or window cleaner, as he considered both roles to be outside his capacity limits. Dr Slesenger also noted that Mr Etter was effectively working with one hand whilst being supported by his wife.
40 In relation to his claim for cognitive impairment, Mr Etter’s solicitors arranged for Mr Etter to be examined by neuropsychologist, Ms Elizabeth Mullaly, in November 2016. In her report dated 13 November 2016, Ms Mullaly detailed her findings following a neuropsychological assessment of Mr Etter. She reported that Mr Etter’s new verbal learning results were well below expected, with spontaneous and cued delay recall scores falling in the extremely low range. She considered this to be demonstrative of a range of cognitive deficits consistent with a brain injury suffered in the fall. She noted that Mr Etter should continue using various strategies to prevent errors at work, and was hopeful that this would be sufficient to ensure he maintained his contract jobs into the future.
Defendant’s medico-legal evidence
41 The defendant relied upon two medical reports from Associate Professor Owen White, dated 16 June 2015 and 20 October 2015. Associate Professor White had examined Mr Etter in June 2015, at which time he queried whether Mr Etter’s cognitive dysfunction was organic or psychological in origin. He acknowledged that Mr Etter appeared to suffer some difficulty from his cognitive impairment, but was of the opinion that he was more limited by his wrist injury.
Mr Etter’s credibility
42 I consider Mr Etter to be creditworthy and reliable. He gave direct evidence to the questions asked of him, and did not attempt any embellishment.
43 Mr Etter has a strong work ethic, as demonstrated by his return to work only a few months after his injury, and his persistence to keep working, despite the pain it causes him. I note that Dr Slesenger considers both window cleaning and sign fitting to be unsuitable duties for Mr Etter, given the seriousness of his left wrist injury.
44 Mr Etter was not challenged in respect of his evidence regarding the growth of his business in late 2012. I accept that it was on the increase and that he was working up to 60 hours a week to ensure its growth and success.
45 I have no hesitation in accepting Mr Etter’s evidence in its entirety.
Mr Etter’s claim for loss of earning capacity
46 To succeed in his application, Mr Etter bears the onus of satisfying me, as at the date of hearing, that as a consequence of either his left wrist injury or his cognitive impairment, he has sustained a loss of earning capacity of 40 per cent or more; and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what Mr Etter is capable of earning, whether in suitable employment or not.
47 It is impermissible for Mr Etter to aggregate these two impairments. Each body function must be considered separately, and a determination must be made by me as to whether that function has been impaired to the requisite level.[2]
[2]Philippiadis v TAC [2016] VSCA 1 paragraph [26]
48 In undertaking this task, I must compare what Mr Etter is currently earning, or capable of earning in suitable employment, with his pre‑injury earning capacity. To determine his pre‑injury earning capacity, I must decide which of the following scenarios most fairly reflects his earning capacity had he not suffered the injuries:
(a)the gross income Mr Etter earned (or was capable of earning) from personal exertion in the three years before the injury;
(b)the gross income Mr Etter would have earned (or would have been capable of earning) from personal exertion in the three years after the injury, if the injury had not occurred.[3]
[3]s134AB(38)(f) ACA
49 Section 134AB(38)(a) provides that income from personal exertion has the same meaning as in s6(2) of the Transport Accident Act1986 (“TAA”). The Act defines “income from personal exertion” to include:
“the proceeds of any business carried on by that person either alone or in partnership with any other person …”[4]
[4]s6(2)(b) TAA
50 As Mr Etter earned his income through his business, Able Window Cleaning, it was agreed between the parties that his pre‑injury and post-injury earning capacity, should be assessed in the context of the definition of income from personal exertion. However, the parties disagreed as to the period and the financial figures that most fairly reflected Mr Etter’s without injury earning capacity.
51 Mr Etter’s taxation returns from 2009 until 2016, were tendered in these proceedings. However, in circumstances where Mr Etter was setting up his business in 2012, and had only recently obtained both contracting jobs, it was submitted, and I accept, that the financial years prior to 30 June 2012 should have no relevance in the assessment of Mr Etter’s earning capacity.
52 Mr Etter’s income tax returns for the financial years ending 30 June 2012 to 30 June 2016 were as follows:
Financial year ending Gross income from business Business expenses Net business income Personal taxable income 30 June 2012 $62,841.00 $27,088.00 $35,753.00 $29,965.00 30 June 2013 $219,762.00 $166,706.00 $53,056.00 $68,739.00 30 June 2014 $134,702.00 $74,309.00 $60,393.00 $60,393.00 30 June 2015 $130,409.00 $91,878.00 $38,531.00 $38,193.00 30 June 2016 $116,509.00 $90,400.00 $26,304.00 $20,530.00
53 Mr Harrison referred me to two County Court decisions, in which the Court was required to consider what part of a business’ income should be considered in determining a plaintiff’s income from personal exertion.
54 In the matter of Guthrie v Campion Education (Aust) Pty Ltd,[5] his Honour Judge Coish considered the post-injury earnings of a worker who, after suffering a work injury, had established a gardening business and was self-employed. It was necessary for his Honour to consider whether or not the plaintiff’s post-injury earnings should be the total income generated by his business, without any deductions, or whether such earnings should be assessed after the deduction of expenses, but before tax. His Honour Judge Coish ultimately concluded that it should be “the proceeds of his business which is the profit of the business, the earnings less expenses”.[6]
[5][2009] VCC 1141
[6]Ibid at [42]
55 A similar approach was taken by her Honour Judge K L Bourke in Hadley v Galzon Pty Ltd. [7] Her Honour considered the approach taken by his Honour Judge Coish in Guthrie to be fairer, and thought it was a more realistic figure upon which to base the required comparison. Her Honour stated that the expenditure of a business is a prerequisite to a person’s ability to earn income in a business, and should therefore be taken into account when looking at income in a real sense.
[7][2014] VCC 651
56 In both cases, it was considered necessary to compare like with like. It is possible to take a similar approach in this case, as Mr Etter ran the business both prior and subsequent to suffering his work injuries.
57 Mr Murdoch observed that there was no binding authority as to the manner in which a business’ income should be assessed for the purposes of section 6(2)(b) of the TAA.
58 Mr Murdoch submitted that it was permissible to look at either the receipts of the business, or the net business income, before suggesting that I look at both, to get a true picture of Mr Etter’s earning capacity.
59 Mr Murdoch further submitted that, as Mr Etter had hired other people to assist with the window cleaning prior to the accident, the earnings in the 2013 financial year were already inflated by other people’s labour.
60 I do not consider Mr Etter’s hiring of contractors prior to the accident to improperly inflate his earnings. He ran a business which, at times, hired contractors to get the cleaning jobs done. I am satisfied the definition of income from personal exertion under section 6(2) of the TAA, contemplates income of this nature.
61 Mr Murdoch then sought to query what he deemed to be discrepancies in the taxation returns. Such examples include the claiming of rental income in more recent years, in circumstances where the business is run out of Mr Etter’s home office, and the claiming of significant purchases in the 2013 and 2016 financial years, in circumstances where Mr Etter acknowledged that, as a labour supply business, he did not have to purchase things to then sell on to other people. Mr Etter confirmed that if he did purchase something it might be equipment to use in the business or the office.
62 I accept Mr Etter’s explanation that his tax returns were prepared by and on the advice of accountants. There is no evidence to suggest that Mr Etter’s business expenses were not proper.
63 For the same reasons detailed in both Guthrie and Hadley, I accept that Mr Etter’s business earnings, less expenses, but before tax, is the sum which represents his income from personal exertion.
64 I accept that in the financial year ended 30 June 2012, Mr Etter was still in the process of building his business, and that he only received the Jamco contract during that year. I do not therefore consider his net business income in that year to fairly reflect his without injury earning capacity.
65 I consider the financial year ended 30 June 2014, the year after which Mr Etter was injured, as the year that most fairly reflects his without injury earning capacity. In that year, the business income after expenses was $60,393. This figure represents the height of the business’ earnings – reflecting the growth of the business in the previous two years.
66 For Mr Etter to be entitled to pecuniary loss damages, he must satisfy me that he suffers a loss of earning capacity of 40 per cent or more. In circumstances where I accept his without injury earning capacity was $60,393, Mr Etter must satisfy me that he cannot earn more than $36,235 as a consequence of either his left wrist injury, or his cognitive impairment. Such loss, however, cannot be as a result of the combined effect of both injuries.
Is Mr Etter’s loss of earning capacity arising from his left wrist injury permanent?
67 Under s134AB of the ACA, Mr Etter has the burden of satisfying me that his loss of earning capacity is permanent.
68 In contrast to the definition of serious injury in the TAA,[8] which requires an impairment to be long term, the ACA requires the impairment to be permanent.
[8]s93(17) TAA
69 The test of “permanent” was introduced into the ACA by the Accident Compensation (Common Law and Benefits) Bill 2000. When introducing the test, the Minister said:
“The definition of serious injury contains a new concept in respect of the qualifying period for a consequence of an impairment or loss of a body function, disfigurement or mental or behavioural disturbance or disorder to be found to be serious. Previously, it was a time period which satisfied the requirement of being long term. In Humphries v. Poljak, the majority of the full court did not express a view on the meaning of the phrase 'long-term'.
It said 'long-term' was not an expression likely to give rise to difficulty. The absence of guidance as to the meaning of long-term has, however, given rise to ambiguity in applications and this has been compounded by the medical and legal professions having a different approach to the meaning to be given to the term. The expression 'long-term' has been removed from the new test and the word 'permanent’ has been inserted by way of substitution. This is intended to reflect the view of government that a serious consequence is one which is permanent, meaning indefinitely for the foreseeable future (Parliamentary Debates, Legislative Assembly, Accident Compensation (Common Law and Benefits) Bill 2000, Mr Bob Cameron, 1002).
70 The meaning of permanent was first considered by the Court of Appeal in Barwon Spinners Pty Ltd v Podolak,[9] in which it was stated that an impairment will be permanent if it will probably persist and there will be no significant improvement over time.[10] Further, an injury will be considered permanent if it will persist through the foreseeable future and not merely into the foreseeable future.[11]
[9] (2005) 14 VR 622
[10]Ibid at [19]
[11]Ibid at [111]
71 I am satisfied that Mr Etter gave honest and reliable evidence when he said, most emphatically, that he intends to delay the wrist fusion for as long as he possibly can. I consider this decision to be consistent with medical advice given to him. He has not made an appointment to see Mr Thomas.
72 Mr Etter is conscious that if he undergoes fusion surgery, he will need to be off work for a significant period of time, and said that, as a business owner, he cannot currently afford to be out of work for such a period. It may well be that Mr Etter will defer this surgery until his retirement age. There is simply no evidence before me as to when this surgery will be performed.
73 Further, in the event that Mr Etter did undergo this surgery whilst still working, the nature of his improvement and recovery is still uncertain. Whilst Mr Crock is optimistic that such surgery would result in a near complete recovery and capacity to return to almost normal duties. Mr Thomas, the treating surgeon, stated that Mr Etter’s restricted work capacity is permanent. Mr Thomas did not suggest that any salvage surgery would dramatically improve Mr Etter’s work capacity.
74 Given those matters, and considering the definition of permanence, I am satisfied that Mr Etter’s wrist injury will result in him suffering the requisite pecuniary loss, on a permanent basis, through the foreseeable future.
Does Mr Etter’s left wrist injury result in a loss of earning capacity of at least 40 per cent?
75 To succeed in his application, Mr Etter bears the onus of satisfying me that, as a consequence of his left wrist injury, he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more.
76 I am satisfied that, as a consequence of his left wrist injury, Mr Etter is performing 20 hours of hands-on work in his business each week. I am satisfied that he is working at maximum capacity, and that his increased wrist pain prevents him from working any additional hours.
77 I accept that, as a consequence of his left wrist injury, Mr Etter has reduced the work he does for Jamco, and that he now works at only one bus depot.
78 There is no medical evidence to suggest that Mr Etter is not working to his maximum capacity.
79 I accept that, as a consequence of his reduced work capacity, Mr Etter’s net business income has also declined in recent years. It follows, as a matter of logic, that if Mr Etter was doing an extra 30 hours of hands on work each week, and did not require the constant assistance of his wife, that the business’ income would be substantially greatly than it is at present.
80 In the last full financial year for which taxation records were available at hearing, Mr Etter’s net business income was only $26,304. Mr Murdoch submitted that the 2016 record was not necessarily an accurate reflection of Mr Etter’s present earnings, as they are figures from 12 months ago. However, I accept that whilst a Pay As You Go (PAYG) employee can readily produce a current wage slip to indicate current earnings, such figures are not as readily available for a business owner such as Mr Etter.
81 Mr Etter has satisfied me that, as a consequence of his left wrist injury, he cannot earn more than $36,235. For the reasons explained above, I am satisfied that this loss of earning capacity of at least 40 per cent is permanent.
Does Mr Etter’s cognitive impairment result in at least 40 per cent loss of earning capacity?
82 I consider the evidence in respect of the impact Mr Etter’s cognitive impairment has had upon his earning capacity to be insufficient and, at times, vague. Mr Etter said it was difficult working with a “cracked head,” but did not expressly state that his head injury had resulted in a reduction in his working hours.
83 Mr Etter’s wife referred in some detail to the cognitive difficulties her husband has suffered since the accident, but she, too, did not expressly state that his memory disturbance and mental fatigue had resulted in a reduction in his working hours.
84 I note that Ms Thomas gave Mr Etter strategies to cope with his cognitive difficulties at work. I further note that Ms Mullaly considered these strategies to have assisted Mr Etter in his workplace, but noting that he remained stressed from such difficulties.
85 I accept that Mr Etter suffers some cognitive impairment. However, I consider the impact of such impairment upon his earning capacity to be nebulous. In such circumstances, Mr Etter has failed to satisfy me that he suffers the requisite 40 per cent loss of earning capacity as a consequence of his cognitive impairment.
86 I will make the consequent orders.
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