Fortunata v JPC Technical Support Services Pty Ltd and VWA
[2009] VCC 296
•1 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-01654
| FORTUNATO FORTUNA | Plaintiff |
| v | |
| JPC TECHNICAL SUPPORT SERVICES PTY LTD | First Defendant |
| (DEREGISTERED) | |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 and 20 March 2009 |
| DATE OF JUDGMENT: | 1 April 2009 |
| CASE MAY BE CITED AS: | Fortunata v JPC Technical Support Services Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0296 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – plaintiff suffered injury to his left little finger impairing the function of his left hand – whether pain and suffering consequences very considerable – whether loss of earning capacity consequences very considerable – meaning of “most fairly reflects” in subsection (38)(f), section 134AB (c), (e) and (f).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hore-Lacy SC with | Maurice Blackburn |
| Mr G Wicks | ||
| For the Defendants | Mr I Gourlay | Hall & Wilcox |
| HIS HONOUR: |
1 Before the Court is an application brought by Originating Motion filed on 24 April 2008 by which the plaintiff applies for leave, pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant on 29 June 2004.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr D Hore-Lacy SC appeared with Mr G Wicks of Counsel for the plaintiff and Mr I Gourlay of Counsel appeared for the defendants.
4 The body function which the plaintiff says has been lost or impaired is the left non-dominant hand.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined. • The plaintiff tendered the following evidence:
ƒ The plaintiff’s payslips: Exhibit A ƒ The Plaintiff's Court Book ("PCB") pages 13-48: Exhibit B
• The defendants tendered the following evidence:
ƒ Video film of the plaintiff taken on 17 and 19 March 2009 ƒ The Defendants’ Court Book (“DCB”) pages 16-51, 57-88 and 94-
97: Exhibit 2
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury, that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event.[3] An approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background and the Incident
9 The plaintiff was born on 7 September 1947. He is now sixty-one years of age. He is a married man with four adult children. He was born in Italy and migrated to Australia in November 1971 when he was twenty-four years of age.
10 The plaintiff completed an apprenticeship as a welder/boilermaker in Italy and after arrival in Australia obtained work in that field.
11 The plaintiff firstly worked with the Ford Motor Company before commencing employment with EDI Rail in 1994 and subsequently with the first defendant in about March 2004 as a welder/boilermaker.[5]
[5] PCB 14
The Incident Causing Injury
12 On 29 June 2004, the plaintiff was using a hydraulic jack for the purpose of undertaking work on the under-frame of a diesel locomotive. That process required the plaintiff to place a piece of wood measuring 100 millimetres x 100 millimetres by 30 centimetres between the jack and the under-frame.
13 The plaintiff was operating the lever of the jack with his right hand, pumping it up while holding the piece of wood in his left hand which was at that stage between the jack in the under-frame. The piece of wood twisted, with the result that the little finger on the plaintiff’s left hand became trapped between the piece of wood and the under-frame.[6]
[6] PCB 15
The Plaintiff's Medical Treatment
14 The plaintiff experienced immediate severe pain. He describes his little finger as being badly crushed. He was taken to the Northern Industrial Clinic where he saw Mr Flaim, surgeon, who referred the plaintiff to have an x-ray and then instructed him to attend the Northern Hospital.
15 The plaintiff attended the Northern Hospital on 29 June 2004. The attending medical practitioner observed that the nail bed of his left little finger was protruding from the dorsal aspect of the distal phalanx and there was a laceration of the ventral surface. After an x-ray was taken, the radiologist noted the following:
"A transverse fracture is noted through the distal portion of the distal phalanx. The bony fragment is not significantly displaced. Additional tiny bony fracture fragments are noted adjacent to the proximal portion of the distal phalanx along its radial side. No additional bony fractures are identified. No joint dislocation is seen."
16 The plaintiff went home and was told to return the following day. When under sedation and local anaesthesia, the wound was lavaged; a K wire was placed through the terminal phalanx; the avulsed nail was removed, the nail bed was repaired, the wound was debrided and repaired and a dressing was applied. He was discharged following the conduct of that procedure.
17 The plaintiff was reviewed at the Northern Hospital between 28 August 2004 and 7 October 2005.
18 Initially the wound was cleaned and re-dressed. The K wire was removed on 22 July 2004, after which a splint was applied which the plaintiff was unable to tolerate because of the pain he experienced when he used it. He was unable to flex the distal interphalangeal joint.
19 A further x-ray was taken on 29 July 2004 and then an ultrasound on 30 July 2004. The x-ray revealed that there were additional tiny bone fracture fragments noted adjacent to the proximal portion of the distal phalanx along its radial side. The ultrasound did not reveal any soft tissue damage, that is, damage to tendons, tendon sheaths or tendon insertions.
20 A further x-ray was taken on 15 April 2005 which revealed moderate dorsal angulation of the distal fragment which the radiologist considered may have been due to a non united fracture.
21 A further ultrasound was taken on 15 April 2005 which showed no abnormality.
22 The last x-ray was taken on 1 June 2005 which showed healing of 30 fracture and mild dorsal angulation of the distal bony fragment.
23 The plaintiff attended the Plastic Wound Management Clinic on 1 February 2005 and on four further occasions, complaining of severe pain and sensitivity in his left little finger.
24 The plaintiff's treatment at the Northern Hospital then involved attending hand therapy on ten occasions between a July 2005 and 7 October 2005.[7]
[7] The foregoing summary of the plaintiff's treatment is taken from a report of The Northern Hospital dated 9 July 2006 at PCB 31-33
25 The plaintiff then saw Dr Harris, general practitioner, whose two medical reports are very brief, however, in his last report he gave a diagnosis of the plaintiff's injury as a chronic regional pain syndrome with neuropathic pain following a crush fracture of the terminal phalanx of the little finger of the left hand. Furthermore, he was of the opinion that the plaintiff's capacity to work was restricted by his inability to use his left hand and that the chronic pain syndrome would continue indefinitely.[8]
[8] PCB 35a
26 Dr Harris referred the plaintiff to Mr Kavar, neurosurgeon. The plaintiff saw Mr Kavar on one occasion on 23 August 2005. Mr Kavar also diagnosed neuropathic pain secondary to the crush injury suffered by the plaintiff. He considered that the crush injury explained the pain phenomenon experienced by the plaintiff. He could not provide the plaintiff with a surgical solution.
27 Mr Kavar then described the neuropathic pain as dysethesia,[9] which he said resulted from the pain experienced by the plaintiff. He was of the opinion that the plaintiff would be able to continue performing most of the tasks, however, he would have to protect his left little finger. He did not believe that the dysethesia would resolve and that medical therapies would likely give him good pain control.[10]
[9] An unpleasant abnormal sensation
[10] PCB 37-39
28 Mr Kavar referred the plaintiff to the Interventional Pain Clinic at the Royal Melbourne Hospital, which he attended on one occasion on 17 November 2005. The medical practitioners who attended upon the plaintiff were of the opinion that the plaintiff's pain was neuropathic in character. He was prescribed Sodium Valproate, 200 milligrams twice daily. He was also prescribed Tramadol on a need basis for exacerbations of pain. The plaintiff did not re-attend the Clinic.[11]
[11] PCB 40
29 Dr Harris referred the plaintiff to see Mr Berger, orthopaedic hand surgeon, whom the plaintiff saw on 25 October 2005 presenting with severe pain in his left little finger. Mr Berger was of the opinion that clinically the plaintiff presented with hypersensitivity due to neuroma formation. He considered that the plaintiff was capable of continuing with most of his pre-injury duties and that he should avoid exposure to cold and wet environments and activity requiring pressure on use of the left little finger.[12]
[12] PCB 41-43
30 Mr Berger suggested that the plaintiff have surgery to divide the digital nerves and to remove the neuromas. The plaintiff has not had any further surgery.
The Other Medical Opinions
31 The plaintiff was examined by Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 6 February 2009. On examination, he found brush allodynia[13] to the tip of the left little finger beyond the distal interphalangeal joint and hyperalgesia.[14]
[13] Extreme tenderness of the skin resulting from nerve damage causing hypersensitivity of the pain receptors in that area
[14] An abnormal state of increased sensitivity to painful stimuli
32 Dr Thomas was of the opinion that crush injuries can traumatise the nerves which are affected by the crush injury and can lead to severe, constant and intractable pain which he considered to be the case with the plaintiff.
33 Dr Thomas considered that the plaintiff had a work capacity and could work a full-time week. He considered that he would be slow and ineffectual and would take longer to perform necessary tasks due to the injury loss of function of his left hand, and he considered that he would not be seen as an efficient worker.[15]
[15] PCB 43c-43e
34 Mr Stapleton, plastic and hand surgeon, examined the plaintiff for the defendants on 21 April 2005. On examination, he found joint flexion at the distal interphalangeal joint, distortion of the fingernail and hypersensitivity of the tip of the left little finger. He said that if he were treating the plaintiff he would strongly recommend amputation through and including the distal interphalangeal joint and that if that were undertaken the plaintiff would become accustomed to his “new finger” and would eventually return to his pre-injury duties. Otherwise his opinion appears to be consistent with the other medical practitioners whose evidence I have reviewed thus far.
35 Dr Fraser, rheumatologist, examined the plaintiff for the defendants on 3 April 2006. Dr Fraser expressed a very similar opinion to that of the other medical practitioners whose evidence I have reviewed thus far. He was of the opinion that the plaintiff has neuropathic pain with allodynia of the left little finger due to the injury. He was of the opinion that the plaintiff was unfit for his pre-injury duties and would be for the foreseeable future, however, he considered that the plaintiff was fit for light manual type work requiring supportive use of his left hand and avoiding contact with his left little finger.[16]
[16] DCB 17
36 Mr Marshall, general surgeon, examined the plaintiff for the defendants on 25 March 2008. Mr Marshall's opinion is unusual and unreliable for a number of reasons. He conducted an examination where he flexed the plaintiff’s left little finger, but on release it sprang back into strong extension and abduction. He noted a variation in the results of examination when the plaintiff was distracted.
37 Mr Marshall was of the opinion that the simple solution would be the amputation of the tip of the plaintiff’s left little finger which he believed would leave him with a completely functional hand, and he expressed astonishment that the “forthright advice” of Mr Stapleton was ignored. Mr Marshall seems to have misunderstood the role played by Mr Stapleton. He was not the treating surgeon, but someone who gave an opinion on a medico-legal basis, and in any event, none of the treating medical practitioners have advised the plaintiff that amputation is a viable treatment option.
38 Mr Marshall's subsequent opinion is out of keeping dramatically with other medical opinions to the extent that he uses extreme language, saying that the plaintiff's physical impairment “is absolutely minimal and consists of nothing more than a distorted left little finger fingertip and nail”. He then chose to describe the plaintiff as being grossly disabled from purely his physical reaction to his injury and on that basis he was of the opinion that the plaintiff's prognosis was completely hopeless, and in that regard I assume that his references to the plaintiff suffering severe psychogenic disturbance is the basis upon which that opinion was given, and indeed, his opinion is replete with references to what he considers to be a psychologically based impairment.[17]
[17] DCB 18-21
39 The other medical practitioners have never painted a picture of absolutely minimal physical impairment nor have any described the plaintiff's presentation as being one of gross disablement; that there are significant psychological factors at work or that the plaintiff's prognosis is hopeless. Indeed, the plaintiff, as an historian, has never painted the injury, the impairment of the function of his left hand and his incapacity for work in that way when giving histories to examining medical practitioners, in his affidavit filed in this proceeding or in the course of his oral evidence at trial.
40 The opinion of Mr Marshall is at an extreme and is bizarre. I am not prepared to take heed of any opinion expressed by him for reasons which are now plain.
The Film
41 Mr Gourlay conducted a wide ranging cross-examination of the plaintiff for the express purpose of testing each aspect of his case.
42 Part of the cross-examination was directed to the plaintiff’s employment with Cottage Cheese Farm Pty Ltd working one day per week which the plaintiff commenced in August 2009 as a maintenance worker.
43 The plaintiff said that in the week of the trial he last worked on 18 March 2009. He was not prepared to concede that he attended at the employer's premises on the Monday and Tuesday of the same week, that is, on 16 and 17 March 2009,[18] however, the plaintiff eventually admitted that he attends the employer's premises almost every day,[19] and the reason he does so is to try to convince the employer to give him more work.[20]
[18] Transcript 27
[19] Transcript 29
[20] Transcript 28
44 Despite the plaintiff’s initial attempts to avoid revealing that he attends the employer's premises almost every day, he subsequently described what I then saw on the films and did so very candidly before the films were shown.
45 The film of 17 March 2000 showed the plaintiff in his car at about 7.00 am obviously going off to the employer’s premises. At about 8.29 am, he was seen walking across the roadway wearing a blue dust coat which extended down to about his knees. It was obviously a work coat. At about 12.30 pm, he was seen carrying a corrugated sheet of metal under his right arm walking down the street. At about 3.37 pm, he was carrying what was later described as a small piece of metal sheeting in his right hand.
46 The film of 18 March 2009 showed the plaintiff in his car at about 6.30 am obviously going off to the employer’s premises. At about 10.39 am, he was seen standing with another man between parked cars holding some papers in his left hand. He then crossed the roadway. At 3.30 pm, he was seen carrying his coat over his left forearm walking down a street.
47 The foregoing is a short description of the highlights of the films which were subsequently the subject of cross-examination of the plaintiff.[21]
[21] Transcript 45-51
48 Mr Gourlay cross-examined the plaintiff after the films were shown and suggested to him that on both days when he was walking down the street his left little finger was more mobile and less prominent.[22] I looked at the films again. I was unable to observe what Mr Gourlay said was evident in the films.
[22] Transcript 49
49 I noted that when the plaintiff commenced giving his evidence that his left little finger protruded laterally at what I would estimate to be about 30 degrees and appeared to be bowed at the middle joint. He held it in that position for the whole time that he was in the witness box except on occasions when he was asked to have all of his fingers on his left hand in full extension, at which time his left little finger came in a bit further against his ring finger, but was still quite obviously bowed and protruding laterally.
50 Mr Hore-Lacy quite properly described the plaintiff’s evidence regarding his attendance at the employer's premises as being defensive and not forthright. I think those are very apt descriptions which I adopt, however, when the plaintiff obviously appreciated that more was known of his activities, he admitted to each of the matters which I have outlined above and gave a description of what was in the films before they were shown.
Serious Injury
Pain and Suffering
51 The only issue which falls for my determination is whether the consequences of the impairment of function of the plaintiff’s left hand is at least very considerable.
52 There is no doubt that the plaintiff suffered a crushing injury to his left little finger which has impaired the function of his left hand and that the impairment is permanent.
53 In his first affidavit sworn 17 December 2007,[23] the plaintiff described pain extending about one inch down from the point where the crushing injury occurred to his left little finger and into the palm of his hand.
[23] PCB 13-21
54 In paragraph 23 of that affidavit, the plaintiff set out the consequences to him of the impairment of the function of his left hand. He suffers severe and sharp electric shock pain in his left little finger if he catches anything with it. It is severely hypersensitive to touch, for example, when touching sheets. He has been woken at night with sudden electric shock pain when it touches against something while he is asleep. It is intolerant to cold, and changes colour in winter. It is held in an awkward, stiff position.[24]
[24] PCB 19
55 The plaintiff confirmed the consequences to him in his second affidavit sworn 2 March 2009.[25] His daughter, Elena Fortuna, swore an affidavit on 6 March 2009 setting out her observations of her father and the way in which the injury has consequences for him. She referred to his difficulty playing bocce and gardening.[26]
[25] PCB 22-23.
[26] PCB 24-25
56 Mr Gourlay submitted that the activities in which the plaintiff was previously involved have not altered greatly, and he is fit to undertake full-time work which militates against a finding that the consequences to the plaintiff are at least very considerable.
57 One of the issues which this application raised is the necessity to demonstrate what the plaintiff has lost in order to determine whether the consequences to him are least very considerable.
58 It is clear enough to me that the plaintiff was not someone who engaged in a wide variety of social, recreational and sporting activities, and that commonly is the case with people who come from particular ethnic and cultural backgrounds where recreational and sporting activities are not part of their life, as can be the case in Australia.
59 It points up the necessity to look at the injury and impairment of function caused by it and the consequences to the particular plaintiff. A female of middle age from a southern European country who has never been exposed to recreational and sporting activities whose life is devoted to being a wife, mother and homemaker can be just as profoundly affected by the consequences of an impairment as someone who is given to a variety of vigorous outdoor activity.
60 Commonly the consequences to that female are less easy to divine from the evidence and not to be underestimated or belittled. I think the same applies to the plaintiff in this application.
61 It is clear enough to me that the plaintiff's ethnic and cultural background did not see him engage in activities outside his family and his work.
62 The plaintiff said that he is able to undertake a lot of activities consistent with what he did before he was injured, however, Mr Hore-Lacy submitted that the plaintiff experiences a very significant degree of pain which has impaired the function of his left hand and that the pain alone with its obvious consequences impairing the plaintiff's capacity to undertake manual operations is enough to bring it within the range of impairments deserving of the description “at the least very considerable”.
63 It is significant that Mr Berger accepted the plaintiff's presentation of being in very severe pain and that the extent of the pain effectively led to the plaintiff having suffered a functional amputation of his left little finger.[27] If he considered that the presentation was out of keeping with the nature and extent of the injury then he would have said so, and in the absence of a qualification like that, it seems to me that I can accept that Mr Berger considered the plaintiff's presentation to be reasonable.
[27] PCB 41
64 The other medical evidence, except for Mr Marshall, is consistent with the plaintiff presenting in the same way as he presented to Mr Berger. None of the other medical examiners have said that the plaintiff's presentation is out of keeping with the nature and extent of the injury.
65 I find that the plaintiff did suffer a crushing injury to his left little finger which has produced the angulation and bowing which I have referred to earlier and which has left the plaintiff with a very sensitive left little finger which can be as painful as he described it to Mr Berger.
66 I find that the injury has impaired the function of the plaintiff’s left hand which is all the more significant in a man whose occupation required the full, free and unrestricted use of his left hand which he no longer has.
67 I do not accept that the occupation which the plaintiff presently follows suggests that he has greater freedom and less restriction in the use of his left hand. The impression I obtained from the plaintiff's evidence is that he is performing small routine repair jobs which are not physically onerous.
68 Although the plaintiff is keen to encourage his present employer to give him more work, Dr Thomas was doubtful that he would be very efficient and would be seen as a productive worker. I draw from that opinion that the plaintiff is only fit for light work of manual nature and not fit for his pre-injury work as a welder/boilermaker, or in any other occupation which would require the free and unrestricted use of his left hand.
69 I find that the consequences to the plaintiff are at the least very considerable when the relevant comparison is made, which I have referred to in my discussion of the statutory scheme. It occurs to me that the plaintiff has permanently lost his capacity to undertake manual functions fully and freely with his left hand which impairs bilateral manual function as well, and the fact that he is exposed to the degree of pain described to Mr Berger fortifies me in reaching that conclusion.
Loss of Earning Capacity
70 The plaintiff is working one day per week with his present employer. He is paid $120 gross per week.[28]
[28] Exhibit A
71 It is clear enough to me that the plaintiff attends his employer's premises often for the purpose of doing odd jobs, for which he is not paid, in order to encourage his employer to give him more work.
72 I find that if the plaintiff were offered full-time work by his employer undertaking the tasks which occupy him one day per week that he would most probably take up that employment.
73 If the plaintiff took up that employment full-time then for a five-day week at $120 gross per week he would earn $600 gross per week for a forty-hour week, or $31,200 gross per annum.
74 Within the “without injury” period and “with injury” period prescribed by subsection (38)(f), the highest earnings obtained by the plaintiff were $88,595 gross ($1703.75 gross per week) for the financial year ending 30 June 2004 and the next highest earnings were $49,639 gross ($954.59 gross per week) for the financial year ending 30 June 2002. 60 per cent of the first figure is $53,157 and of the second figure is $29,783.40.
75 Mr Gourlay relied upon the report of CoWork Pty Ltd of 2008[29] prepared by a Ms Susan Martin. Ms Martin set out jobs for which she believed the plaintiff had transferable skills and could undertake.[30]
[29] DCB 36-51
[30] DCB 41 and 50
76 The highest paid income for the jobs she referred to is an advertised job as a MIG welder earning $24.90 per hour,[31] and assuming a 40-week, amounts to $996 gross per week or $51,792 gross per annum, which is below 60 per cent of the $88,595 which the plaintiff earned for the financial year ending 30 June 2004.
[31] DCB 42-43
77 Mr Gourlay submitted that I should not rely upon the gross income earned in that year because it demonstrates an unusual year for the plaintiff. As unusual as it might be, it is nonetheless a gross income which the plaintiff was capable of earning. Subsection (38)(f) requires me to measure the plaintiff's loss of earning capacity by making a comparison as required “as most fairly reflects the workers earning capacity had the injury not occurred.”
78 If the word “most” was absent, then I might have been attracted to the submission made by Mr Gourlay. It occurs to me that it was the intention of the legislature to recognize that some workers earn income in a financial year which is not a fair reflection of that worker’s earning capacity when compared with a year where the worker may apply himself with considerably more effort and then earn a gross income reflecting that degree of effort which is much higher than other years. I asked the question rhetorically - why does not that year most fairly reflect the worker’s earning capacity? It occurs to me that it does.
79 The fact that the plaintiff earned such a large income for the year ending 30 June 2004 does not have such characteristics about it to warrant its exclusion from consideration.
80 Therefore, even if the plaintiff could work as a MIG welder full-time, and even with the restrictions placed upon his capacity to undertake work of that kind described by Dr Thomas, a comparison between the gross income he could earn in that capacity with the gross income he earned for the year ending 30 June 2004 demonstrates a loss of earning capacity of 40 per cent or more.
81 Mr Hore-Lacy added that it is unlikely the plaintiff would be fit to do that work anyway given the opinion of Dr Thomas, and that at sixty-one years of age and even with his present job and his desire to work extended hours he is nonetheless not fit for suitable employment as defined.
82 I do not accept that submission. The plaintiff has admitted a capacity for extended hours of work and wants to work those extended hours because he is confident that he can. However, it seems to me that this submission is not to the point. The comparison of gross income which I have undertaken is to the point.
83 Therefore, I find that the plaintiff has a capacity for full-time employment with the restrictions which the medical practitioners, apart from Mr McArthur, would consider appropriate given the loss of function of the plaintiff’s left hand. Furthermore, I find that if the plaintiff were capable of full-time employment as a MIG welder, a comparison with the income he could earn, as I have set out above, with what he earned for the year ending 30 June 2004 demonstrates that he has suffered a loss of earning capacity of 40 per cent or more. Lastly, I find that the plaintiff's loss of earning capacity is permanent and at least very considerable in these circumstances, after the relevant comparison is made as I have described it in my discussion of the statutory scheme.
Conclusion
84 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB (16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries for pain and suffering arising out of his employment with the first defendant on 29 June 2004.
85 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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