Freyer v Victorian WorkCover Authority
[2024] VCC 1283
•26 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-22-05016
| DARREN ROBERT FREYER | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 August 2024 | |
DATE OF JUDGMENT: | 26 August 2024 | |
CASE MAY BE CITED AS: | Freyer v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1283 | |
REASONS FOR JUDGMENT
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Subject:WORKPLACE INJURY
Catchwords: Serious injury – physical injury – pain and suffering – pecuniary loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave is granted to the plaintiff to commence a common law proceeding for pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms M Pilipasidis SC with Mr C Sidebottom | Arnold Dallas McPherson |
| For the Defendant | Mr R Paoletti with Mr L Howe | Lander and Rogers |
HIS HONOUR:
Introduction
1The proceeding before the court is a “serious injury” application in respect to a workplace injury.
2As I shall describe in a moment, in this proceeding Mr Darren Freyer (“the plaintiff”) claimed to have suffered a “serious injury” because of a work-related injury to the left hip. Ultimately, the defendant did not dispute that the plaintiff had suffered a compensable injury to the left hip. Neither did it dispute that he was unable to return to his pre-injury employment as a stevedore. Rather, the dispute was appropriately narrowed to the following issues:
(i)did the plaintiff have ongoing impairment consequences from the compensable left hip injury so as to meet the “very considerable” test, either in respect to pain and suffering or pecuniary loss;
(ii)the calculation of the plaintiff’s “without injury” earnings;
(iii)the calculation of the plaintiff’s “after injury” earning capacity and specifically whether the plaintiff could, “after injury”, undertake work as a fleet controller/manager.
Background
3The plaintiff is now 61 years of age. He is married and lives with his wife. They have an adult daughter.
4The plaintiff left school at Year 11. He has had a full and varied working life but mostly in physical-type employments. His work history includes as a forklift driver, council employee, publican, cable TV installer and, more relevantly, as a stevedore.
5The plaintiff commenced work as a stevedore in November 1997, initially, with P&O Ports and then later with DP World Melbourne (“the employer”).
6The plaintiff’s work duties included driving and operating various types of cranes, that often involved working on uneven ground, climbing ladders in and out of machinery and the like.
7The plaintiff has several comorbid medical conditions. On 4 June 2002, he underwent a right total hip replacement. He has been treated for atrial fibrillation. He has an unrelated left knee injury which required arthroscopic surgery in 2017. He has also had a right knee condition for which he underwent arthroscopic surgery on 17 August 2023.
8On 1 July 2019, the plaintiff was travelling in a lift at the employer’s workplace to access a crane platform. The lift malfunctioned and, according to the plaintiff, it then commenced rising and falling repeatedly, causing him to jolt and jar his left hip (“the incident”).
9In this proceeding, the defendant accepted that the incident occurred and that it caused the plaintiff to suffer injury to his left hip. In addition, the defendant accepted that the compensable injury required the plaintiff to undergo a left hip replacement and that he continued to experience impairment consequences from the compensable left hip injury.
10Returning to a brief timeline of events, after the incident, the plaintiff attended a general practitioner, Dr Morris Dvash. A WorkCover claim was lodged and accepted. The plaintiff then underwent scanning of the left hip, which revealed moderate to high grade osteoarthritis.
11The plaintiff relied upon the aggravation of previously asymptomatic osteoarthritis as the injury for “serious injury” purposes. The defendant does not dispute that injury.
12On 24 October 2019, the plaintiff attended an orthopaedic surgeon, Mr Andrew McQueen.[1] He then underwent various conservative treatments, including injections into the left hip.
[1]Plaintiff’s Court Book (“PCB”) 71
13The plaintiff consulted a different orthopaedic surgeon, Mr Ashley Carr, on 23 July 2020.[2] After a further (third) injection into the left hip, the plaintiff was recommended for left hip replacement surgery.
[2]PCB 49
14The plaintiff eventually underwent a left hip replacement on 14 July 2021. The surgery was performed by Mr Carr.[3]
[3]PCB 51
15The plaintiff attempted a return to work with the employer from 30 November 2021.[4] He remained in an administrative and training position with the employer until light duties were withdrawn on 13 May 2022.[5]
[4]PCB 66
[5]PCB 21
16The plaintiff has not worked since the employer withdrew the offer of light duties, save that he has continued to run his side or hobby business of “Darren Freyer Racing”, a business that he had for many years before the incident. That business combined his love of horse racing with an interest in sourcing race horses, including horses in which he kept a small share for himself as part of horse racing syndicates.
17As mentioned earlier, the plaintiff was employed by the employer as a stevedore. He achieved a position as a grade 6 stevedore but from 2016 took on a position as trainer, which meant he did less of the actual stevedore work and spent most of his time as a trainer. However, that training did involve using straddle cranes and other equipment to train and assess the competency of other employees of the employer. He was in that training role at the time of the incident.
Overtime
18Leading up to 2016, the tendered pay records reveal the plaintiff working overtime in his role as a stevedore. The same pay records reveal that there was a decrease in the amount of overtime after he moved into the training role and before the incident.
19The defendant took the plaintiff to his pay records during cross-examination. It was highlighted how the overtime had decreased after he moved into the training role. The plaintiff accepted the pay records as accurate. He accepted that in the financial year 2017/2018 he worked 48 hours of overtime, compared to 64 hours the year before.[6] He accepted that in the approximate 26 fortnights before the incident he had not worked any overtime.[7]
[6] Transcript (“T”) 20, Line/s (“L”) 10-12
[7] T 20, L 13-19
20It was then put to the plaintiff that from 2016 to 2019 he had progressively reduced his overtime so that he was not performing any at all, which he accepted “would be fair to say”.[8]
[8] T 20, L 20-22
21Later in his evidence, the plaintiff explained how, as a trainer, he was not the first port of call[9] for overtime. It was first offered to the stevedores, and it was only if there were not enough stevedores who were available then the employer would turn to the trainers to pick up the overtime.
[9] Pun intended
22The defendant then went further to suggest to the plaintiff that, at age 56 (at the date of the incident) and at his stage in life, he had effectively wound the overtime back, or as the defendant highlighted, he already had a full calendar without overtime.[10] The plaintiff did not accept that. He explained how it was a product of the requirements of the employer’s business and because of COVID that not as many ships were coming in and there was not as much overtime.[11] He accepted that there were two other trainers younger than him who probably wanted the overtime more than he did, but leaving COVID to one side, if he wanted to work the overtime then he was available for it.[12]
[10] T 29, L 8-19; T 30, L 1-27
[11] T 21, L 8-14
[12] T 30, L 19-20
23The issue of the availability of overtime is relevant for the assessment of the plaintiff’s “without injury” earning capacity. Because the plaintiff had not worked overtime in the six months before the incident, the defendant submitted that there should not be any allowance for overtime in the calculation of his “without injury” earning capacity, because he had made a deliberate decision to give up the overtime.
24On the other hand, the plaintiff submitted that there should be some allowance for overtime, by urging the Court to take a whole of evidence approach[13] and by an acceptance of the plaintiff’s evidence that, absent COVID, he would still be available for some overtime.
[13] T 145, L 4-18
Fleet controller
25At the conclusion of the evidence, the defendant conceded that the plaintiff could not return to full and unrestricted employment as a stevedore.[14] In addition to the calculation of the plaintiff’s “without injury” earnings, the focus then turned to the plaintiff’s “after injury” capacity for suitable employment.
[14]T 89, L 24-28
26That issue was narrowed further to whether a job identified by the defendant as a fleet controller/manager was, “after injury” appropriate “suitable employment” and, if so, the appropriate salary for that job.
27The defendant submitted that the fleet manager job was “suitable employment”, and further submitted that the evidence disclosed a salary level that would cause the plaintiff to fail to establish an entitlement to commence a proceeding for pecuniary loss damages.
28On the other hand, the plaintiff submitted that the fleet controller job was not “suitable employment”. He submitted that he did not have the inherent requirements for that job, so that even if he had the physical capacity “after injury”, it was still not “suitable employment”.[15]
[15] T 153, L 3-14
Contentions regarding pain and suffering and what was retained
29Finally, regarding pain and suffering consequences, the defendant highlighted the evidence of what the plaintiff retained, in support of a submission that the plaintiff did not have a “very considerable” pain and suffering consequence.
30On the other hand, the plaintiff highlighted what had been lost, and perhaps more accurately, the way in which he was restricted for day-to-day activity because of ongoing pain, in support of the submission that he had a “serious injury”. He also relied on the loss of his pre-injury employment as a pain and suffering consequence in the more limited way such a consequence may be considered and not in respect to the actual financial loss.
Medical evidence
31Refreshingly, the medical evidence in this proceeding is largely in agreement. Any disagreement is one of degree rather than of substance.
Mr Ashley Carr
32In a report to the plaintiff’s solicitors dated 25 February 2021,[16] the treating orthopaedic surgeon, Mr Ashley Carr, diagnosed evolving left hip osteoarthritis. He said at that time that the symptoms warranted a hip replacement.
[16]PCB 49
33Then, in a further report of 1 June 2023, Mr Carr noted the plaintiff had undergone a left total hip replacement on 14 July 2021. He described how, at his last review on 21 July 2022, he recommended that the plaintiff continue to avoid heavy lifting.[17]
[17]PCB 53
34Then, in his more recent report of 12 February 2024,[18] Mr Carr said that he expected the plaintiff to be able to return to active employment after a hip replacement, although limitations involving heavy manual work and repetitive impact loading of the hip should remain in place.[19]
[18]PCB 57
[19]PCB 58
35Pausing, the defendant accepted that the restrictions for work that Mr Carr specified were appropriate restrictions.
Dr Morris Dvash
36The treating general practitioner, Dr Morris Dvash, provided several reports. In the most recent report of 9 February 2024,[20] Dr Dvash diagnosed the left hip injury and said that employment with DP World Melbourne remained a significant contributing factor to that injury. He opined that the plaintiff was unfit for his pre-injury duties “but is fit for modified duties”. He said that because of the physical injury and impairment to the left hip, the plaintiff would need to avoid constant kneeling, squatting or climbing activities to prevent any further aggravation of the left hip. He opined that the plaintiff would be fit for fulltime work.[21]
[20]PCB 68
[21]PCB 70
Dr Philip Sheard
37The plaintiff relied upon a medico-legal report of Dr Philip Sheard, orthopaedic surgeon, dated 9 December 2023.[22] He arrived at a similar diagnosis as that of Mr Carr. He said that the work with the employer brought on the symptoms and therefore was work related. He said the plaintiff was unfit for his pre-injury duties. He then went on to say that, in his opinion, the plaintiff was not suitable for any employment at the present time. In expressing that opinion, he noted the plaintiff’s age, minimal qualifications and the fact that he had only worked within the manual labour industry.
[22]PCB 99
38Although Dr Sheard did not expressly say so, he appears to believe the plaintiff’s left hip condition is such that he should avoid heavy or manual work. In that regard, his opinion is like Mr Carr and Dr Dvash. Where he went further was in a consideration of “suitable employment”, by noting the plaintiff’s age and minimal qualifications as excluding him from any ongoing employment. In that regard it could be said he went beyond his area of expertise and veered into an area he should have avoided. But for present purposes, his opinion that the plaintiff cannot now perform work as a stevedore or other heavy manual work is consistent with the bulk of the other medical evidence.
Dr Majid Rahgozar
39The defendant relied on medico-legal opinions from Dr Majid Rahgozar, an occupational physician. Dr Rahgozar provided four reports at the request of the defendant. In many ways, those reports are like the opinions of Mr Carr. He opined that the incident likely resulted in aggravation of pre-existing degenerative changes of the left hip.[23] He said that the plaintiff was not fit for his pre-injury employment, but went on to endorse several identified jobs “after injury” as “suitable employment”, including the job as a fleet manager.[24]
[23]Defendant’s Court Book (“DCB”) 121
[24]DCB 122
Mr Ian Dickinson
40The only other relevant medical opinion was contained in a report from Mr Ian Dickinson, orthopaedic surgeon, provided to the defendant and dated 3 June 2024.[25] Unlike the other doctors, Mr Dickinson opined that there was now no condition affecting the left hip. He said the outcome from the hip replacement had been excellent and there was no disability related to the left hip replacement.[26]
[25]DCB 131
[26]DCB 142
41Mr Dickinson then went on to endorse a range of job options, including that as a fleet manager on a fulltime basis.[27]
[27]DCB 145
The plaintiff’s evidence
42Turning next to the evidence of the plaintiff, which was initially contained in affidavits sworn by him on 27 July 2022,[28] 31 May 2023,[29] 14 February 2024[30] and 20 June 2024.[31]
[28]PCB 13
[29]PCB 18
[30]PCB 30
[31]PCB 35
43Due to the relatively narrow issues in dispute, it is unnecessary to set out much of the plaintiff’s affidavit evidence. Broadly, he described his pre-injury work history, the circumstances of the incident, the treatment thereafter and the outcome from the hip replacement surgery. In his most recent affidavit of 20 June 2024, he said he had continuing pain and stiffness in the left hip. He said those symptoms fluctuate in intensity from day to day, and some days the hip felt pretty good, while on other days it could be quite stiff and sore. He said the level and intensity of pain varied according to his level of activity. He said at rest the left hip typically felt relatively pain free and did not particularly bother him. However, he said the more active he was, the more the hip tended to ache.
44To manage his pain, he described taking over-the-counter painkillers a couple of times a week to take the edge off the pain, more so during the cooler months. He said he did stretching and exercise at home to try and help with the mobility and function in his left hip. He described how he cycles to try and build up strength in the hip and uses a treadmill. He said the left hip injury limited his ability to undertake any strenuous physical activities, became stiff and sore if he remained seated for too long which, for example, made longer car trips particularly uncomfortable. He otherwise set out how the activity-related pain and discomfort in the left hip impacted on a range of domestic and social activities.
45Broadly, his evidence was not that he could not do domestic or social activities, such as going to the horse races, assisting his wife at home or going out for dinner, but rather that those sorts of pleasurable activities were made less so because of pain in the left hip.
46The plaintiff was subject to an appropriate cross-examination to explore with him his level of ongoing symptoms and impairment consequences. He presented in the witness box as a direct, forthright, honest and impressive witness. He made appropriate concessions regarding the sorts of activities that he can engage in.
47At the end of the oral evidence, the defendant developed a submission that the plaintiff’s oral evidence, in effect, walked back from some of the restrictions as set out in his affidavit. However, I do not consider that to be made out on the evidence.
48The thrust of the plaintiff’s affidavit evidence, his oral evidence and what he had told doctors was that his left hip is now essentially pain free at rest, but with physical activity it becomes stiff and sore. The thrust of all his evidence was that he still engages in activity such as walking, bike riding, driving and going to the races but at times he has hip pain because of those activities. As an example, for many years he has enjoyed the obvious pleasure of attending the Warrnambool May Racing Carnival. He described how he needs to stop along the way when driving from Melbourne to Warrnambool to get out and stretch his hip and relieve the stiffness.
49The plaintiff’s evidence was entirely consistent with the opinion of Mr Carr, namely that the plaintiff could not return to heavy and unrestricted work as a stevedore because of the irritability and flare-up of pain that those duties would provoke in the left hip. I extrapolate that similar heavy day to day activity also produces symptoms in the plaintiff’s left hip.
50In that regard, I accept the opinion of Dr Sheard that, should the plaintiff return to manual labour (or manual activity), that may possibly bring on the requirement for a revision hip replacement at an earlier stage.[32] In that regard, this opinion is not dissimilar to Dr Dickinson, who opined that after a hip replacement, a patient should not play tennis or run, and should be cautious with climbing ladders and steps.[33]
[32]PCB 102
[33]DCB 144
Summary of the evidence
51In summary, I consider the medical evidence to essentially agree that, because of the incident, the plaintiff suffered the work-related aggravation of osteoarthritic change in the left hip, which required a left hip replacement, and which continued to incapacitate the plaintiff for heavy manual activity and repetitive impact loading of the left hip.
52I accept the evidence that, at rest, the plaintiff’s left hip is pain free, but that physical activity, such as prolonged walking or standing, provokes pain in the hip. I accept that pleasurable activities, including his passion of horse racing, is now less pleasurable because of pain in the hip but, equally, that he still engages in such activity.
Test for pecuniary loss serious injury
53In the context of the summary of the evidence as already set out, it is convenient next to set out the relevant legal principles regarding pecuniary loss serious injury, which are not in dispute.
54To establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked, and at least “very considerable”, as per the narrative test set out in s325(2)(b) and (c) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
55As mentioned, the defendant accepted that the plaintiff could not return to his pre-injury employment. Regardless, a consideration of the whole of the evidence tends to the conclusion that he cannot return to his pre-injury employment.
56The defendant did not concede that the inability to return to pre-injury employment was a “very considerable” consequence, but neither did it forcibly argue against that proposition.[34]
[34] T 129, L 15-16
57Regardless, I consider that the inability to return to full and unrestricted manual work, including his secure and well-paid employment as a stevedore, which he enjoyed, is a “very considerable” consequence to the plaintiff. Therefore, I conclude the narrative test is satisfied.
58Having established a “very considerable” loss of earning capacity consequence, the plaintiff must next satisfy the statutory formula as contained in sub-s325(2)(e), (f) and (g) of the Act, namely whether he has the requisite “40 per cent loss” as measured by those provisions. It is this aspect of the proceeding that was hotly contested.
59To satisfy the statutory formula, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury” earnings);
(b) the gross income the plaintiff was earning or was capable of earning “during that part of the period within three years and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury” earnings).[35]
[35]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at [70]
What is the plaintiff’s “without injury” earnings?
60The parties agree that the calculation of the plaintiff’s “without injury” earnings is not a simple exercise. I consider that to be an understatement.
Plaintiff’s evidence and submissions regarding earnings
61Before the incident, the plaintiff’s earnings were achieved by a combination of a base salary and then various loadings and allowances, including the training allowance, but also shift and overtime allowances.
62The plaintiff tendered a summary of his taxation returns,[36] but did not tender the actual taxation returns.
[36]PCB 116
63According to the tax summary, for the financial year ended 30 June 2019, the plaintiff had a gross income of $112,094 from DP World Melbourne Ltd, together with supplementary income of $59,748. The supplementary income relates to his business of Darren Freyer Racing.
64When his senior counsel opened on his behalf, the Court was informed that the plaintiff’s payslip for the pay period ended 19 June 2019[37] disclosed a gross taxable income of $120,898.96, effectively being the gross amount for that financial year.[38] His senior counsel then explained the discrepancy between that payslip and the summary in the tax return on the basis that the plaintiff was salary-sacrificing income and so the payslip provided the most accurate figure for that financial year.
[37]DCB 16
[38]T 2, L 18-22
65Also when his case was opened, his senior counsel indicated that it had been agreed between the parties “so as not to complicate this matter any further”[39] that in the three years before the incident his earnings from Darren Freyer Racing were about $60,000 “odd”,[40] and while the business had been dwindling, to avoid argument, the parties had agreed that the income in the business before and after the incident was essentially negated, and so the Court need not be troubled with earnings from the business. Therefore, the Court need only be concerned with the issue of the plaintiff’s “after injury” earnings by reference to the broader concept of “suitable employment”.
[39]T 13, L 2-3
[40]T 13, L 9
66Returning to the issue of the “without injury” earnings, the plaintiff submitted that in accordance with the statutory formula, the appropriate figure was $140,000, taken as an average of comparable earnings figures that had been provided by the defendant.[41]
[41]T 2, L 5-10
67In his affidavit sworn 27 July 2022,[42] the plaintiff said that, at the time of the incident, he was earning approximately $110,000 gross per annum. He said that he understood from friends of his that if he was working his old job he would be making more than $130,000 gross per annum.[43]
[42]PCB 13
[43]PCB 17
68Slightly off topic, in that affidavit he also said that he did not have any particular computer skills or administrative qualifications to do office work, and doubted he would work again.
Defendant’s evidence and submissions regarding earnings
69The defendant tendered two affidavits from Ms Nicole Fry, the injury management adviser at DP World Melbourne Pty Ltd, which were sworn by her on 19 July 2023[44] and 24 January 2024.[45] To Ms Fry’s affidavits were exhibited pay records and documents relevant to the plaintiff and other employees of the employer.
[44]DCB 5
[45]DCB 73
70Ms Fry had clearly been asked to provide the earnings for “comparable” employees of the employer. The tenor of her evidence was that, because of the several variables that went into the annual salary of an individual employee, it was not possible produce “like for like” comparable earnings figures.
71In her first affidavit, Ms Fry set out relevant rates of pay by reference to the DP World Melbourne Enterprise Agreement 2016 (“2016 EBA”).
72By reference to the 2016 EBA, as at 1 March 2018 a grade 6 stevedore was to be paid $1,432.67 gross per week. That equates to $74,498.84 gross per annum.
73Next, Ms Fry set out that from 1 October 2021 (that is, within the three years after injury) the relevant rate of pay for a grade 6 stevedore was increased to $1,542.81 gross per week, which equates to $80,226.12 gross per annum.
74Next, Ms Fry set out the relevant trainer’s allowance in accordance with the EBA. As at 1 March 2018, that was $3,174.54 gross per annum. From 1 October 2021, that allowance increased to $3,418.62.
75Pausing here, if the plaintiff’s “without injury” earnings were calculated by reference to the EBA figures as set out in Ms Fry’s affidavit, then his salary would be well below that which was included in his 2019 tax return. The highest figure would be $83,730.20, being a combination of salary and the trainer’s allowance, from 1 October 2021. This highlights the fact that other variables contributed to the plaintiff’s gross earnings “without injury”.
76Next, Ms Fry exhibited to her affidavits various pay figures for other employees. She said that due to the allowances, loadings and overtime, “there are no ‘comparable earnings’ of the plaintiff available”, and she was of the view “that the most appropriate way to estimate the plaintiff’s without injury earnings is to base it off the 2020 EBA in addition to his loadings/allowances/overtime prior to his injury”. She said that if the plaintiff had continued to work, it would have been predominantly Monday to Friday dayshifts because “he was a trainer and training was only conducted between Monday and Fridays”.[46]
[46]DCB 8
77Ms Fry exhibited the pay records for two Grade 6 stevedores but noted that they were not “comparable” to the plaintiff. She also exhibited pay records for a Mr Cook and a Mr Jacobs. But she said they were also not “comparable” as those employees followed “the panel roster”[47] which included weekends and nightshifts, and attracted higher rates, and that those employees worked more overtime than the plaintiff.
[47] DCB 8
78I note that Ms Fry did not go so far as to say that the plaintiff never worked overtime, or would not have been offered overtime, but for the incident.
79In any event, the payslip for Mr Cook dated 19 June 2019 is evidence that he was paid the same base fortnightly salary as the plaintiff. It also recorded gross annual earnings of $127,126.08[48] (approximately 5.15% more than the corresponding payslip of the plaintiff).
[48] DCB 56
80Next, Mr Cook’s payslip dated 29 June 2022 (within the 3 year window) records a gross figure of $139,885.32.
81Next, the payslip for Mr Jacobs dated 19 June 2019[49] recorded a gross annual figure of $130,003.04 (7.53% more than the plaintiff). Then his payslip for 29 June 2022 recorded a gross annual figure of $146,073.09.
[49] DCB 67
82Ms Fry repeated much of her evidence in the second affidavit sworn by her 24 January 2024.[50] She repeated the fact that several variables impact upon comparable earnings data. She said again that the plaintiff did not perform as much stevedoring nightshift or weekend/overtime work as some other trainers.[51]
[50]DCB 73
[51]DCB 74
83Amongst the pay records tendered and exhibited to Ms Fry’s second affidavit were pay records relating to a Mr Deas and a Mr Forster. Ms Fry said that Mr Deas and Mr Forster were trainers employed by the employer, but her understanding was that the plaintiff did not perform as much shift, weekend or overtime work as “some of the other trainers” such as Mr Deas or Mr Forster.[52]
[52]DCB 74
84Ms Fry also said that Mr Forster appeared to have performed work in a pattern different to the plaintiff, including increased night shift and weekend work.[53] She also said that in the course of obtaining the records for Mr Deas “the Training Manager suggested to include another trainer’s earnings, namely Mr Forster”,[54] but she also said that Mr Forster was a different grade to the plaintiff and how that reflected that it was not clear cut as to how to determine “comparable” workers.[55]
[53] Ibid
[54] DCB 75
[55] DCB 75
85In his evidence, the plaintiff said that both he and Mr Deas were employed as trainers on the same day, so they were like-for-like. He said they were the same grade, same rate of pay, and did the exact same job.[56]
[56]T 23, L 1-8
86According to the payslip for 19 June 2019, Mr Deas had gross annual earnings of $130,156.68 (7.66% more than the plaintiff). His payslip for 29 June 2022 recorded gross annual earnings of $159,017.24.
87Regarding Mr Forster, his payslip for 19 June 20129 recorded gross annual earnings of $127,556.27 (5.51% more than the plaintiff). His payslip for 29 June 2022 recorded gross annual earnings of $148,099.67.
88Based on Mr Deas’ payslips, it was put to the plaintiff that had he continued in his pre-injury role he would have earned $4,731.05 per fortnight as a base salary, together with $131.49 per fortnight as a trainer, by three years “after injury”. The plaintiff accepted that proposition.[57]
[57]T 23, L 28
89$4,731.05 gross per fortnight equates to $123,007.30 gross per annum, much more than allowed for in the EBA.
90In addition, an amount of $131.49 per fortnight as a training allowance equates to $3,418.74 gross per annum, which appears to be in accordance with the EBA.
91In any event, combining those two figures produces a total of $126,426.04 gross per annum.
92Therefore, for the purpose of this proceeding, the defendant submitted that $126,426.04 gross per annum was the appropriate “without injury” earnings figure, calculated in accordance with the statutory formula as the figure that most fairly reflected the plaintiff’s earning capacity in the three years before and after the incident, had the incident not occurred.
93On the other hand, the plaintiff accepted the figure of $126,426.04 based on Mr Deas’ payslip, but he submitted that in addition there should be some allowance specifically for overtime, but also to consider some of the other allowances such as meal allowances or shift loading that were included amongst the payslips and documents exhibited to Ms Fry’s affidavit.
94Effectively the plaintiff took a more holistic approach, rather than a scientific one, to argue that where he had remained available for overtime or had the prospect of undertaking work which would attract other allowances, even starting with the figure of $126,426.04 gross did not most fairly reflect his earning capacity.
95Therefore, taking a whole-of-evidence approach, with a touch of “swings and roundabouts”, he submitted the figure of $140,000 gross per annum was appropriate as the “without injury” figure.
96Pausing again, the complicated exercise of working out the plaintiff’s “without injury” earnings is of course an academic exercise if the court were to accept that “after injury” the plaintiff had no residual capacity for “suitable employment”.
Calculation of “without injury” earnings
97The defendant relied on the evidence contained in the tendered payslips that demonstrated the plaintiff progressively reducing his overtime in the several years before the incident and consistent with a shift from stevedoring work to the training work.
98The plaintiff accepted that the training work was more of a Monday to Friday job and where overtime was not immediately available. There was an undercurrent in his evidence that the training position is one that is taken more for lifestyle reasons, rather than for salary.
99I note the plaintiff explained the lack of overtime in the six months before the incident because of the impact of COVID. I find that evidence hard to understand. I take judicial notice that the World Health Organization declared the pandemic from 11 March 2020 and that the Melbourne lockdown commenced in late March 2020.
100Therefore, based on the evidence, and in what is no easy task, I accept that without overtime or other allowances then, consistent with Mr Deas’ payslip, the plaintiff “without injury” would have received gross earnings of a base salary of $126,426.04.
101Next, I also consider it reasonable to allow some increase beyond that figure to account for the probability that the plaintiff would have worked some overtime or received some other allowances, such as shift or weekend allowances, had the incident not occurred. As noted, the evidence from Ms Fry does not go so far as to say that the plaintiff would not have been offered overtime, or that he had indicated that he was never available for overtime.
102By reference to the payslips, Mr Cook, Mr Jacobs, Mr Deas and Mr Forster earned between 5.14% and 7.66% more than Mr Freyer for the same period. The evidence tends to the conclusion that but for the incident, those employees, and the plaintiff, would have been paid in a similar manner, that is by reference to a base salary together with various allowances.
103The plaintiff’s evidence about the similarity, if not “comparative” nature, of Mr Deas’ employment is in my view the best evidence of a comparative figure. Alternatively, I infer that the (unidentified) Training Manager referred to in Ms Fry’s second affidavit considered that Mr Forster was the closest to a “comparable” employee.
104If Mr Deas’ earnings for 2022 are reduced by the percentage of extra salary he earned by comparison to the plaintiff in 2019, being 7.66%, then that equates to $146,836.52. If Mr Forster’s earnings for 2022 are similarly reduced by the 5.51% of extra salary he earned in comparison to the plaintiff in 2019, then that equates to $139,939.38.
105Ultimately, in the exercise of a discretion for the purposes of a gateway provision, I accept that the plaintiff remained available for the work that carried extra salary or allowances, including overtime, had the incident not occurred. Further, in the exercise of a discretion for the purposes of a gateway proceeding but also in accordance with the evidence as set out, I accept the submission put on his behalf that a figure of $140,000 is a reasonable allowance of his “without injury” earning capacity.
“After injury” earning capacity
106Turning then to the next step in the statutory formula and the calculation of the “after injury” earning capacity, this issue narrowed at the end of the evidence.
107In final submission, notwithstanding the business of Darren Freyer Racing, the plaintiff submitted that he had no additional capacity for any other “suitable employment”. Therefore, he submitted that regardless of his “without injury’ earning capacity, he did not have a capacity for any additional or further “suitable employment” and satisfied the statutory formula for the requisite 40 per cent loss.
108Against that, the defendant submitted that the plaintiff had a Certificate IV in Workplace Training and Assessment, had undertaken training and administrative-type duties with the employer, and therefore had a residual capacity for “suitable employment” as a fleet manager.
The evidence of the salary of a fleet manager
109The defendant tendered reports from CoWork Pty Ltd dated 9 May 2023[58] and 19 July 2023[59] as evidence of what was involved in the role of fleet manager and also the relevant salary.
[58]DCB 166
[59]DCB 228
110In the report dated 9 May 2023, Ms Joanne McLeod, the author of the CoWork report, described the typical duties of a fleet manager as:
· organises the purchase and maintenance of transport vehicles, equipment and fuel;
· liaises with clients to determine requirements and provide customers with advice and information regarding vehicle type, purchase or hire rates and obligations and handling complaints;
· receives orders and bookings and plans and implements transportation schedules;
· arranges collection and delivery of vehicles and goods;
· maintains business records and prepares operational statements and reports.[60]
[60]DCB 197
111Further, Ms McLeod noted that a job as fleet manager usually required a medium level of digital literacy and typical competency levels regarding computer systems, email/internet and various Microsoft Office software. By reference to “Job Markets” online database, 2021-2022, she said that the relevant gross earnings for such a position were $116,740 gross per annum. Curiously, she noted the average retirement age was 60.4 years as of August 2016, which of course is an age younger than the plaintiff’s current age.
112Next, in her first report, Ms McLeod exhibited to it an advertised job as a Fleet Controller – Wharf Container Transport at Melbourne Container Transport Pty Ltd.[61] The qualifications, experience and tasks of that job were set out, and a full-time salary range of $80,000–$110,000 gross per year was provided for that job.
[61]DCB 222
113Next, Ms McLeod also set out a job as Fleet Controller – Wharf Cartage for Outside the Box Logistics. The relevant requirements of that job were also set out, together with a salary range of $80,000–$90,000 gross per annum.[62]
[62]DCB 223
114Then, Ms McLeod set out another job as Fleet Controller – Wharf Container Transport for Coynes Freight Management Group Pty Ltd, with a salary starting from $80,000 gross per annum.[63]
[63]DCB 224
115Then, in her supplementary report of 19 July 2023, Ms McLeod expanded regarding her opinion that the fleet manager role was suitable. She said that given the plaintiff’s experience working on the wharves for about 25 years, in her opinion, he was likely to have a good understanding of that occupation and to have the communication, problem-solving, and organisational skills required.[64] She went on to say that the estimated annual earnings, in accordance with her previous report, were $116,714, but the advertised jobs as attached to her earlier report set out yearly earnings between $80,000 and $110,000.[65]
[64]DCB 230
[65]DCB 232
116Pausing here, whilst the estimated annual earnings of a fleet manager might be $116,714, the job advertisements annexed to Ms McLeod’s first report demonstrate how the advertised vacancies were for less than that figure, which tends to the conclusion that someone starting out in the role is paid a lower salary than the average.
117In short, if the plaintiff were able to secure a job as a fleet manager, then I conclude that he would likely start on a below average salary, or a salary at the bottom end of the range, because of his relatively limited clerical and computer skills, his age and lack of experience in the role.
118Therefore, I consider a salary of $80,000 to be an appropriate allowance if the plaintiff were to obtain a fleet manager role.
Is fleet manager “suitable employment” “after injury”?
119The remaining issue is a consideration whether “after injury” the plaintiff can work as a fleet controller.
120In his oral evidence, the plaintiff did not reject the suggestion that he could do the job as a fleet controller. When the requirements of the job were put to him in accordance with the descriptions in the Co-Work reports, he did not flatly reject the job. He said that if he was in the industry and trained in that industry then “perhaps I could but you’re asking me a question that I can’t answer because I am not in the industry”.[66] He described his limited IT and administrative skills but acknowledged that “perhaps”[67] he could do the job.
[66] T 60, L 1-4
[67] T 60, L 23
121The plaintiff has experience in work other than manual work. He has run a hotel business, and he runs his own business, even if it is done more with pen and paper, as opposed to a computer-based business. He achieved a training role, in addition to his training as a stevedore, a role in which he obtained a Certificate IV. In combination with the appropriate concessions made by him in cross-examination, I consider that he is capable of “suitable employment” as a fleet manager.
122I do not accept the submission on his behalf that he has no residual capacity for “suitable employment” other than in his own self-employment.
Application of the statutory formula
123Therefore, for the reasons given, the plaintiff ‘without injury” had an earning capacity of $140,000, measured in accordance with the statutory formula.
124I consider that because he cannot return to his pre-injury employment as a stevedore, he has made out a “very considerable” pecuniary loss consequence.
125Next, I also consider that he has a residual capacity for “suitable employment” as a fleet controller.
126Again, for the purpose of a gateway provision[68] I conclude that the plaintiff would have an “after injury” earning capacity of $80,000 gross per annum. I also consider that to be the limit of his “after injury” earning capacity, given his age and lack of experience in that industry.
[68] Yirga-Denbu v Victorian Workcover Authority [2018] VSCA 35
127Therefore, 60% of $140,000 is $84,000. As the plaintiff has an “after injury” capacity of $80,000, he satisfies s325(2)(e) and (f) of the Act. He has the requisite loss as at today’s date and will continue to have a loss of earning capacity that is productive of an actual financial loss of 40% per centum, or more.
128Therefore, for the reasons given, the plaintiff has the consent of the Court to commence a proceeding for pecuniary loss damages and, in accordance with Advanced Wire and Cable Pty Ltd v Abdulle,[69] also for pain and suffering damages.
[69] [2009] VSCA 170
Pain and suffering
129Finally, and for completeness, there remains a separate consideration whether the plaintiff has in isolation made out a “very considerable” pain and suffering consequence.
130As mentioned earlier, the plaintiff has an injury by way of aggravation of previously asymptomatic osteoarthritis of the left hip, because of the incident. That injury required a hip replacement and has left him with residual pain and stiffness after physical activity. While the left hip may be pain free at rest, that does not detract from the fact that it is painful if he sits or stands for too long or puts too much physical stress through the hip. It prevents him from heavy work or prolonged weight bearing. It impacts his main hobby of horse racing. It makes longer walks, car trips or prolonged standing difficult, and impacts on some of the things he is required to do to assist his wife.
131I have considered the medical evidence and his evidence, as well as the limited evidence in the affidavits from his wife and daughter.
132In what is a finely balanced decision, I consider that it is correct to describe the plaintiff’s left hip impairment as productive of a “very considerable” pain and suffering consequence.
133Accordingly, independent of the conclusion about pecuniary loss, the plaintiff has demonstrated a “very considerable” pain and suffering consequence.
Conclusion
134Leave is granted to the plaintiff to commence a common law proceeding for pecuniary loss and pain and suffering damages.
135I shall hear from the parties as to consequential orders.
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