Hargood v VWA
[2024] VCC 1821
•17 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-02461
| PATRICK HARGOOD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | Her Honour Judge Sanger | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 November 2024 | |
DATE OF JUDGMENT: | 17 December 2024 | |
CASE MAY BE CITED AS: | Hargood v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1821 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – paragraph (a) - pain and suffering and loss of earnings – whether test for economic loss and pain and suffering satisfied – worker was an apprentice at time of injury
Legislation Cited: Workplace Injury and Rehabilitation Compensation Act 2013 (Vic), s325(2), s335
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144; Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to proceed with a claim for damages for pain and suffering and pecuniary loss arising from the injury sustained on 20 August 2021
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards KC with Ms J Frederico | Zaparas Lawyers |
| For the Defendant | Ms K Manning | Wisewould Mahony |
HER HONOUR:
Introduction
1The plaintiff in this proceeding, Mr Patrick Hargood, is thirty-nine years old. He lives in Kilmore on a three acre block with his partner, Ms Louise Bannister, and their two young sons, aged four and three months respectively. While he started his working life as a stonemason, he decided to re-train to be an electrician and commenced an apprenticeship in 2019. He planned to work at least five and half days a week in the business that he and Ms Bannister established once he qualified. Those plans changed when he injured his lumbar spine on 20 August 2021, when he fell through the roof of a residential property while installing solar panels and landed on a concrete paver floor.
2Mr Hargood makes his application pursuant to section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for a determination that his loss of earnings and pain and suffering consequences to his lumbar spine are “at least very considerable” and “more than significant or marked.”[1]
[1]Humphries and Anor v Poljak [1992] 2 VR 129 at 140 (“Humphries”)
3The part of the body said to be impaired for the purposes of paragraph (a) is the lumbar spine.
4Counsel for the defendant advised that ‘injury’ and ‘causation’ were not in dispute in Mr Hargood’s case. Neither was Mr Hargood’s credit or reliability.[2]
[2] I note that Counsel for the defendant nonetheless submitted that I ought to place less weight on the
consequences that had been omitted from Mr Hargood’s affidavits that emerged during his viva voce evidence.
5This case was about whether Mr Hargood satisfied the test for economic loss or pain and suffering, or both.
6As the evidence unfolded, it became apparent that Mr Hargood’s economic loss case turned on both the calculation of Mr Hargood’s ‘without injury’ earnings, and whether Mr Hargood could reliably and consistently work more than 24 hours[3] a week as an electrician with Truevolt,[4] which is the business that he runs with his partner.
[3] The point at which Mr Hargood would be capable of earning more than 60 per cent of his without
injury earnings differed subject to my findings on the calculation of his ‘without injury’ earnings.
[4]Fit and Fix Electrical Services Pty Ltd, which is trading as Truevolt
7Mr Hargood was the only witness to give oral evidence. There were three lay affidavits tendered; one from his partner and two from two electricians, Mr David Quick and Mr Marcus Mackrell. They were not cross-examined. The parties otherwise tendered various reports and material from their respective court books.
8While I do not propose to refer to all the evidence, I shall refer to the evidence to the extent necessary to explain my reasons.
9For the reasons set out below, I find that Mr Hargood is entitled to leave to proceed with a claim for damages for his pain and suffering and pecuniary loss arising from the injury sustained on 20 August 2021.
Relevant background matters
10Mr Hargood completed most of Year 12. He then started working as a subcontractor stonemason and remained in that role for about 15 years.[5] He has a Certificate II in General Construction. In 2019, Mr Hargood decided to re-train as an electrician because he wanted to try something different and to work in a job where he could earn more money.[6]
[5]Exhibit P1, PCB 16 at paragraph [3]
[6] T10, L23-25
11He commenced his apprenticeship in 2019 and worked with J Bell Property Services Pty Ltd for approximately six months, before starting with Willara Pty Ltd (“the employer”) in November 2019.
12Following his fall through the roof as set out in paragraph one, Mr Hargood was transferred to the Northern Hospital by ambulance. He had a CT scan that revealed a fracture to his lumbar spine. He was then transferred to the Alfred Hospital, where he remained as an in-patient until 24 August 2021.
13He wore a back brace for approximately three months following the incident. He had x-rays of his lumbar and thoracic spine taken on both 6 September 2021 and 6 October 2021. These revealed no change in the degree of compression of L1, and a reduction in the vertebral body height by approximately 30 per cent.[7] After the back brace was removed, Mr Hargood commenced physiotherapy and Pilates to assist with his rehabilitation.[8] He also underwent exercise physiology and hydrotherapy through a gym and swim program.[9] During the hearing, Mr Hargood confirmed that he currently attends his physiotherapist once a month, does home exercises mainly involving stretching his lower back every second day and only does Reformer Pilates on a “fairly rarely” basis.[10]
[7]Exhibit P1, PCB 18 at paragraph [18] and [20]; PCB 117
[8]Exhibit P1, PCB 18 at paragraph [21]; PCB 100 and 106
[9]Exhibit P1, PCB 18 at paragraph [21]
[10]T38, L11-12, 17-21; T39, L1-2
14Mr Hargood was not offered suitable employment with the employer,[11] and thus did not return to work with them.
[11] Exhibit P1, PCB 19 at paragraph [26]
15He started working for Truevolt in or about September 2022 as an electrician’s assistant,[12] completing his apprenticeship under the supervision of an A Grade electrician that Truevolt employed for this purpose. Mr Hargood qualified as an electrician around August 2023.[13] Once he was qualified, he did not require supervision and thus Truevolt did not need to engage the A Grade electrician any longer.
[12] Exhibit P1, PCB 19 at paragraph [29]
[13] Ibid
16Once qualified, Mr Hargood worked as many hours as possible within the limits of his physical capability. He worked up to 36 hours a week, lifting up to 25 kilograms on occasion.[14] However, over time he has realised that these hours and lifting loads are unsustainable,[15] and has formed the view that he can reliably and consistently work 16 hours a week, lifting up to 10 to 15 kilograms.[16] On rare occasions, he works more hours than this.[17]
[14] T27, L14-17
[15] Exhibit P1, PCB 27 at paragraph [29]; T45, L18-19
[16] T45, L13-19; T27, L4
[17] T44, L26-29
17Mr Hargood mostly undertakes physical work on-site and does some administration and quoting work.[18] He takes regular rest breaks to manage his back pain and works at his own pace.[19]
[18] Exhibit P1, PCB 27 at paragraph [28]
[19] Exhibit P1, PCB 27 at paragraph [28]
Is his lumbar spine injury serious by reference to economic loss consequences?
Mr Hargood’s evidence
18Mr Hargood gave clear and forthright evidence. He did not seek to embellish his symptoms. I was impressed with his evidence about his experience of returning to work and that he tried hard to work more hours with greater lifting loads. This evidence struck me as being credible, given the ambition he had when he started the apprenticeship and the reality of coming to terms with the physical limitations caused by his injury. For the same reason, I found his recollection of conversations with his treating general practitioner, Dr Daile Kincaid, to be credible. I find that I can rely on his evidence.
19Mr Hargood’s evidence regarding his current symptoms and capacity was that:
(a) He has constant pain in his lower back, which varies in intensity[20] and which becomes more painful with work and other activities.[21] He is never pain free. He experiences a dull, aching pain, and feels pressure in his lower back.[22] The pain is aggravated by activities such as sitting or standing for too long, leaning over, or lifting heavy weights.[23]
[20] Exhibit P1, PCB 23 at paragraph [7]
[21] T42, L2-4
[22] Exhibit P1, PCB 23 at paragraph [7]
[23] Exhibit P1, PCB 23 at paragraph [8]
(b) He suffers from severe[24] flareups two to three times a week[25] which are very intense. When these occur, he has to lie down with his knees up and wait for the pain to calm down.[26] This can happen at work or at home.[27]
[24] Exhibit P1, PCB 24 at paragraph [9]
[25] T45, L29-30
[26] T42, L16-8
[27] T45, L27
(c) He has referred pain into his left buttock, which goes down his left leg to his heel. The intensity of the pain depends on how busy he has been at work.[28]
[28] Exhibit P1, PCB 24 at paragraph [10]
(d) He has muscle spasms every day.[29]
[29] Exhibit P1, PCB 24 at paragraph [12]
(e) He attends physiotherapy approximately once a month and undertakes home exercises and stretching about every second day.[30]
[30] T38, L11-12, 17-21; T43, L30-31; T44, L1
(f) He takes Nurofen and Panadol to treat his symptoms. While the amount varies,[31] he usually takes two of each, two to three evenings per week to help him sleep.[32] In addition, Mr Hargood takes Diclofenac most weeks.[33]
(g) Mr Hargood had planned to undertake other well-paid work when he became an electrician, such as solar and battery installations, but has been unable to cope with the physical demands of the heavy work given his back pain and limitations.[34] He has declined solar and battery jobs and has not applied for tenders or other jobs due to his back pain.[35]
(h) He hoped to grow his business in the future, although expressed pessimism based on the performance to date.[36]
(i) He engages subcontractors from time to time.[37] He did not believe he could take on an apprentice as he could not work a full week of work, although he agreed it could be a possibility in the future.[38]
(j) He undertakes work as a subcontractor from time to time.[39]
(k) Prior to his injury, he loved being on the tools,[40] loved to work, and loved being onsite with the boys and working hard.[41]
(l) The hardest part of dealing with the limitations from his injury was that he wanted to provide financial support to his partner and family but feels as though he cannot as a result of the injury. He is earning $538 a week.[42] He and his partner have had to borrow money from his partner’s parents to get by.[43]
(m) He and his partner have had a lot of support and help from her parents and his sister to cope with domestic and childcare responsibilities.[44]
(n) He planned on undertaking most of their home renovations himself but has had to outsource most of the work because of his injury.[45]
(o) He found it difficult to enjoy a family holiday to Queensland in November 2023 (prior to the birth of his second son) as there were a lot of things that he wanted to do with his son that he was unable to, such as going on rides with him, having a carefree time with him without worrying about his back, and helping with him.[46]
[31] T39, L20-23
[32] Exhibit P1, PCB 23 at paragraph [3]; T39, L24-25, 30-31
[33] Exhibit P1, PCB 23 at paragraph [3]; T40, L4-5
[34] Exhibit P1, PCB 27 at paragraph [30]
[35] Exhibit P1, PCB 27 at paragraph [32]
[36] T23, L5-8, T24, L17
[37] T21, L28
[38] T22, L24-28, 31; T23, L1
[39]T28, L14-16
[40] T25, L18
[41] T47, L15 - 17
[42] T38, L7
[43] T37, L3-31
[44] T37, L1-2
[45] Exhibit P1, PCB 25 at paragraph [21]; T35, L17-20
[46] T48, L23-28
Ms Bannister’s evidence
20His partner provided evidence by way of affidavit. She was not cross-examined, and thus her evidence was uncontradicted. She said:
(a) Prior to his injury, Mr Hargood was very active and hard working.[47] He was an early bird. He would wake early and get up and go for the day. He was a hard worker.
(b) They had planned for Mr Hargood to have his own business as an electrician, with Ms Bannister assisting by doing the bookkeeping.[48]
(c) She observed Mr Hargood to be in pain everyday.[49]
(d) Mr Hargood wakes up tired and fatigued in the morning. This was very different from how he was before his injury, when he would get up from his bed in the morning full of energy.[50] He now struggles to wake up and complains of being tired all the time.
(e) Mr Hargood used to be quite “muscly” and his loss of muscle tone is noticeable.[51]
(f) She is worried about their future. She said that Mr Hargood gave up a lot to be an apprentice.[52] They saw that there were a lot of opportunities for self-employed electricians.
(g) They had planned renovations to their home prior to Mr Hargood’s injury which Mr Hargood was going to mostly complete himself.[53] They have had to outsource most of this work now.
(h) Mr Hargood works 16 hours per week. When Mr Hargood comes home from work, he looks tired and complains about back pain.[54] He usually takes some time to rest before he can assist her with the children. When he was trying to increase his hours and got up to 30 hours per week, he complained of significant back pain and ultimately was unable to cope.[55] She does not know how he could realistically increase the number of hours he currently works on a sustained basis, based on her observations of how he is when he comes home from work and the time it takes him to recover.
[47]Exhibit P1, PCB 31 at paragraph [3]
[48]Exhibit P1, PCB 31 at paragraph [5]
[49]Exhibit P1, PCB 31 at paragraph [6]
[50]Exhibit P1, PCB 31 at paragraph [8]
[51]Exhibit P1, PCB 32 at paragraph [9]
[52]Exhibit P1, PCB 32 at paragraph [13]
[53]Exhibit P1, PCB 32 at paragraph [14]
[54]Exhibit P1, PCB 32 at paragraph [15]
[55]Exhibit P1, PCB 32 at paragraph [15]
Summary of Mr Hargood’s and Ms Bannister’s evidence
21In summary, the evidence of Mr Hargood and Ms Bannister was that Mr Hargood was only able to work 16 hours a week on a regular and sustained basis. While he has tried to work more than this, the pain and symptoms arising from his back were unmanageable when he did so.
Relevant medical evidence
22As outlined above, the diagnosis of injury was not in dispute.[56] There was general agreement between the medical practitioners that Mr Hargood suffered a traumatic injury to his lumbar spine causing a fracture of L1 with a 30 per cent loss of height as a result of the injury at work on 20 August 2021.[57] I accept this evidence and find that this is the injury Mr Hargood sustained.
[56] T68, L17-22
[57] Exhibit P1, PCB 101, 109 and Exhibit D1, Defendant’s Amended Court Book (“DACB”) 11. I note that
Dr Kincaid at Exhibit P1, PCB 66 and the Alfred Hospital at Exhibit P1, PCB 55 have recorded this as a 20 per cent loss of height. This appears to be based on earlier radiological imaging undertaken of Mr Hargood’s spine.
23However, the medical practitioners held contrary views regarding the hours Mr Hargood could work and the restrictions he would be subject to in his work as an electrician into the foreseeable future.
24I have confined my analysis of the relevant medical opinions to these matters.
Mr Hargood’s medico-legal reports
Dr Daile Kincaid, treating general practitioner
25Dr Kincaid has treated Mr Hargood since the time of the accident. While she was hopeful that Mr Hargood’s work capacity would improve,[58] she ultimately concluded that his symptoms and restrictions were likely to be permanent and persist into the foreseeable future. In her report dated 18 August 2024, she believed he had a capacity for suitable employment and could consistently manage “up to” 30 hours a week with a “maximum” lifting load of 25 kilograms.[59]
[58] Exhibit P1, PCB 64
[59] Exhibit P1, PCB 67
26However, there are three significant things to note regarding her opinion:
(a) She placed the words “up to” in bold, emphasising the significance of those words.
(b) She noted that Mr Hargood had not been able to sustain a routine repetitive lifting load of 25 kilograms day in, day out, which provided context to what she meant when she referred to Mr Hargood’s “maximum” lifting load.[60]
(c) She provided relevant history and context to explain the progression of her thoughts about the hours per week and the lifting restrictions that Mr Hargood was subject to. She noted that from November 2022, Mr Hargood attempted to increase his hours from 28 to 36 per week, working light duties. She recorded that after passing his A Grade electrician exam in August 2023, he attempted to build up to working 36 hours per week with a maximum lift load of 25 kilograms on a steady, consistent basis. She noted that this had not been successful, and that he had not been able to make the progression to a regular 36-hour week nor a routine repetitive lift load of 25 kilograms day in, day out.[61]
[60]Exhibit P1, PCB 67
[61] Exhibit P1, PCB 67
27I will return to the significance of the context and emphasis of her words in my analysis below.
28Mr Hargood’s evidence was that Dr Kincaid arrived at this view after they discussed the hours of work he could perform.[62] He believed that she had said he could do “up to” 30 hours a week to allow for the occasional “rare” situation where he was on a job doing a fault find, and he needed more time to finish the job. He said that as an electrician he could not leave the site unsafe.[63]
[62]T44, L23-25
[63] Ibid
29His evidence about this conversation supports the conclusion I reached about Dr Kincaid’s opinion regarding the work that Mr Hargood was performing.
30Dr Kincaid said that he was limited in the weight he could lift and how long he could sit, stand or drive. She noted that bending causes a strain or flare up his pain.[64]
[64] Exhibit P1, PCB 67
31Dr Kincaid also noted the risk of degeneration in the future.[65]
[65] Exhibit P1, PCB 66
Dr Kilner Brasier, occupational and environmental specialist physician
32Mr Hargood was reviewed by Dr Brasier on 19 September 2024, and a report was provided to his solicitors on 2 October 2024.
33He noted that Mr Hargood appeared physically deconditioned.[66]
[66] Exhibit P1, PCB 108
34He applied the following restrictions to Mr Hargood:
(a) Avoid lifting weights of more than 10 kilograms from waist level;
(b) Avoid lifting weights from ground level;
(c) Avoid repetitive bending, twisting or stooping;
(d) Avoid heavy or repetitive pushing or pulling;
(e) Avoid kneeling, squatting or crouching;
(f) Avoid prolonged sitting or standing;
(g) Ensure ability to self-pace;
(h) No running or jogging;
(i) Avoid walking up inclines or down declines;
(j) Avoid walking over uneven ground;
(k) Avoid extension ladders;
(l) Avoid working in confined spaces; and
(m) Avoid working at heights.[67]
[67] Exhibit P1, PCB 109
35He said that these restrictions were permanent and likely to persist for the foreseeable future.[68]
[68] Exhibit P1, PCB 110
36Parts of his opinion about the suitability of his current employment were vague. I understood his opinion to be that Mr Hargood could undertake his current duties on a sustained, reliable and consistent basis, provided he did not exceed two to three days per week and restricted his activities to supervisory roles, and that these restrictions would continue into the foreseeable future.[69]
[69] Exhibit P1, PCB 110. See also the discussion I had with Counsel for Mr Hargood at T79, L11-31, T80,
T81, L1-4, and the discussion I had with Counsel for the defendant at T86, L23-31; T87, L1-4
37He did not provide details on how many hours constituted a ‘day’. It is also unclear what he was referring to when he referenced ‘supervisory duties’. I will address this in my analysis below.
38When asked about Mr Hargood’s capacity for other suitable employment, he said that Mr Hargood had a residual capacity for employment for five days a week, four hours a day for a total of 20 hours per week within the restrictions outlined above.[70] He noted that Mr Hargood was able to work within his restrictions by choosing work that was consistent with his capacity.[71]
[70] Exhibit P1, PCB 111
[71] Exhibit P1, PCB 108
39He noted that he was at increased risk of further degenerative change and long-term deterioration of the structures surrounding his L1 vertebrae in the future.[72]
[72] Exhibit P1, PCB 110
Dr Hazem Akil, neurosurgeon
40Mr Hargood was also examined by Dr Akil on 27 August 2024, and a report was provided to his solicitors on the same day. He noted that he was doing part-time work as an electrician, 16 hours a week, three days a week.[73] He thought those duties were appropriate for him.[74]
[73] Exhibit P1, PCB 101
[74] Ibid
41It is significant that he has recorded that these hours are being performed over three days. I will return to the significance of that later in my reasons.
42He said that Mr Hargood was restricted from lifting objects heavier than 10 kilograms, repetitive lifting, repetitive bending and prolonged sitting, standing or walking longer than one hour, and that these restrictions would continue for the foreseeable future.[75]
[75] Exhibit P1, PCB 102
43He also noted that a compression fracture could change the biomechanics of the lower lumbar region, increasing his risk of developing facet joint arthritis in the lower lumbar region.[76]
[76] Exhibit P1, PCB 101
Mr Tom Freeman, treating physiotherapist
44Mr Freeman provided two reports to Mr Hargood’s solicitors. In his second report, dated 21 August 2024, Mr Freeman’s view was that it was unlikely that Mr Hargood would be able to work more than two to three days a week consistently without increased risk of aggravation.[77] He noted that Mr Hargood was very selective in the work that he took on as an electrician to minimise the risk of deterioration of his back injury. He said that the selectivity and use of the pacing strategies allowed Mr Hargood to remain working two to three days a week. He also noted that if Mr Hargood were to take on heavier tasks that included significant lifting or crawling through ceilings, he would likely exacerbate his symptoms, and his capacity could be less than two to three days a week.[78]
Defendant’s medico-legal reports
[77] Exhibit P1, PCB 81
[78] Ibid
Dr Ponnaren Pak, orthopaedic surgeon
45Dr Pak examined Mr Hargood on 27 February 2024, and provided a report to the defendant’s solicitors on 12 March 2024. Dr Pak said that Mr Hargood could not lift more than 15 kilograms,[79] noting that lifting more than this was difficult for Mr Hargood as it caused significant discomfort in his lower back. He did not recommend that Mr Hargood lift more than five kilograms repetitively, meaning more than six times an hour.[80]
[79]Exhibit D1, DACB 12
[80]Exhibit D1, DACB 13
46Although Mr Hargood had the capacity to lift up to 15 kilograms, he believed lifting more than five kilograms on a repetitive basis would cause significant aggravation to the lower back. He recorded that if Mr Hargood sat or drove for more than one hour, he needed to move and change his posture. He was limited in his ability to walk for more than one hour. He found it difficult to run due to lower back pain and stiffness. He believed Mr Hargood was working eight hour days, but only three days a week.[81] He noted that Mr Hargood’s lower back symptoms limited his capacity to work to a part-time basis.
[81]Ibid
Dr Mary Wyatt, occupational physician
47Dr Wyatt examined Mr Hargood on 16 August 2024 at the request of the defendant’s solicitors, and provided a report dated 23 August 2024 to their office on 26 August 2024. Dr Wyatt recorded that Mr Hargood was working about 16 hours over five days in the week, and not consecutive days.[82] She thought Mr Hargood was fit to work 30 hours a week in jobs that were not particularly taxing on his back.[83] In the long-term, she thought Mr Hargood would be limited in his ability to do physically taxing work. She thought it would be appropriate for him to take on more managerial work, and to engage contractors for more demanding work, such as heavy lifting or work that requires a sustained, awkward posture to complete.
[82] Exhibit D1, DACB 18
[83] Exhibit D1, DACB 20
48She noted that Mr Hargood said he hoped to build up his business over time and employ others, such as an apprentice, and that he was fit to do that.[84] She thought that this would be needed long term and would be expected with a business in regional Victoria. This meant that he was likely to earn reduced income as he would not be able to do full jobs himself and would engage subcontractors as needed.
[84] Exhibit D1, DACB 21
49She thought that modified work as an electrician was appropriate, and that Mr Hargood was physically capable of test and tag work, inspection work, quoting, estimating or taking on a sales or a training role.
Summary of medical evidence
50In summary, the evidence from the medical practitioners was that Mr Hargood had a capacity for either 16, 20, 24 or 30 hours work per week, that he was subject to work capacity restrictions in the work that he could perform as an electrician, and that these restrictions were permanent.
Defendant’s vocational assessment report
IPAR – Vocational Planning Report
51A report was obtained from IPAR on 22 July 2022 and various positions were identified as suitable, including work as an electrician.[85] As the report pre-dated Mr Hargood’s return to work, it was of limited utility. Counsel for the defendant advised that she was tendering the report by way of completeness because it had been referred to in some of the doctors.[86] No submissions were made regarding the alternative roles referred to this report. The focus of the parties was on the role of an electrician.
[85] Exhibit D1, Defendant’s Amended Court Book (“DACB”) 106
[86] T50, L18-23
Submissions
52Counsel for the defendant submitted that Mr Hargood had a capacity for employment for 30 hours a week based on Mr Hargood’s evidence,[87] the evidence of Dr Kincaid[88] and the evidence of Dr Wyatt.[89] Counsel also relied on the opinion of Dr Akil[90] as evidence that Mr Hargood could work consistently throughout the week.[91]
[87] T44, L9-22
[88] T59, L19-22
[89] T65, L20
[90] On review of the transcript, the references to Dr Akil at T60, L9-13 and T65, L24-30 should be
references to Dr Brasier’s reports. Counsel for the defendant clarified later through email correspondence with Chambers that these references within the transcript referred to Dr Brasier, rather than Dr Akil.
[91] T60, L9-13
53Counsel for the defendant submitted that I could not be satisfied that Mr Hargood’s incapacity was permanent, based on Mr Hargood’s evidence about his desire to grow his business, either through working more hours himself or through taking on an apprentice or subcontractors.[92]
[92] T24, L30-31; T25, L1-5; T62, L9-16
54Counsel for Mr Hargood submitted that Mr Hargood had a capacity for 16 hours a week based on Mr Hargood’s evidence[93] and the evidence of his partner, Ms Bannister.[94] He also relied on the medical evidence of Dr Kincaid, Dr Brasier, Dr Akil, Mr Freeman and Dr Pak in support of his submissions regarding the limits of Mr Hargood’s hours and his permanent restrictions for employment.
[93] T70, L10-20
[94] T83, L21-27
Analysis
55I have considered the evidence of Mr Hargood and Ms Bannister in the context of the medical evidence.
56The fact that Mr Hargood is subject to restrictions both with respect to hours and his physical limitations was not in dispute between the parties.
57The real dispute between the parties was the number of hours Mr Hargood could reliably and consistently perform as an electrician each week into the foreseeable future, and whether he had a 40 per cent or more loss of earning capacity. The second questions was in part dependent on my findings regarding his without injury earnings.
How many hours can Mr Hargood reliably and consistently perform as an electrician each week into the foreseeable future?
58Dr Kincaid believed Mr Hargood could work up to 30 hours per week, with restrictions to lifting and other physical tasks.
59I placed weight on the context she provided to support this opinion and the fact that she emphasised the words “up to” as outlined in paragraph 26 above.
60I also placed weight on the viva voce evidence of Mr Hargood regarding their discussion about his hours of work.[95] The clear and forthright way he recalled their conversation persuaded me that his recollection was credible and reliable. It also made sense in the context of Dr Kincaid’s opinion.
[95] T44, L23-29
61I have thus understood Dr Kincaid’s opinion to be that Mr Hargood can occasionally work 30 hours a week if required, rather than believing that Mr Hargood could reliably and consistently work 30 hours a week.
62Her opinion assisted me to understand the efforts Mr Hargood has made to return to work and how she arrived at her opinion about his permanent restrictions for employment. I formed the view that she had developed a therapeutic relationship with Mr Hargood as she has assisted him to work to the limit of his capacity and realised there are limitations to the work he can do. I have read her opinion in the context of Mr Hargood’s evidence about the work he does and what he can do on a reliable and consistent basis.
63Dr Brasier is an occupational physician. I have placed weight on his opinion given his area of expertise and his knowledge of the inherent requirements of the duties of an electrician and the biomechanics involved.[96] He took a history from Mr Hargood about his tolerances and incapacities in his work as an electrician[97] and the restrictions Mr Hargood had for other activities he might undertake.[98]
[96] Exhibit P1, PCB 107
[97] Exhibit PCB 108 at paragraph [4.1]
[98] Exhibit P1, PCB 109
64His opinion was that Mr Hargood could continue working in his current role on a reliable and consistent basis, provided he did not exceed two to three days a week and restricted his work to supervisory roles.
65Given he has described the duties Mr Hargood was performing in his current role, I have understood his opinion to be that Mr Hargood could continue working in his current role as an electrician in accordance with those restrictions, including that he could work two to three days a week. However, there is some ambiguity in his opinion, as he has gone on to say that Mr Hargood should restrict his work to ‘supervisory roles’. The duties Mr Hargood is presently undertaking, and those that Dr Brasier has said he could work in accordance with, would not normally be described as ‘supervisory roles’.
66Dr Brasier also said that Mr Hargood had a capacity for suitable employment for 20 hours a week, working four hours a day, five days a week within the restrictions outlined at paragraph 34 above. Thus, he believed that Mr Hargood could work consecutive days, but only if his hours were limited to four hours a day.
67I will return to how I have ultimately viewed Dr Brasier’s opinion shortly.
68Dr Brasier’s view is largely supported by Dr Wyatt.
69While she did not ultimately express an opinion on the suitability of Mr Hargood’s current work as an electrician, she did say that “he is advisedly working about 16 hours over five days in the week and not consecutive days”.[99]
[99]Exhibit D1, DACB 18
70This supports Dr Brasier’s view about the suitability of Mr Hargood’s current role as outlined in paragraph 65 above.
71Ultimately, her opinion was that Mr Hargood could work 30 hours a week in jobs that were not particularly taxing on his back.[100]
[100] Exhibit D1, DACB 20
72I had difficulty with this part of Dr Wyatt’s opinion as it was not work that Mr Hargood was presently doing. It was premised on Truevolt growing its business, and sustaining that growth, such that Mr Hargood could take on an apprentice or subcontractors or both to do heavier work and duties.
73Counsel for the defendant made submissions on this basis. She submitted:
(a) that the business is in its infancy and I should allow for the prospect that Mr Hargood might take on an apprentice or subcontractors in the future.[101]
(b) that if Mr Hargood were to take on an apprentice, or if Truevolt were to engage subcontractors, this would lead to an increase in the volume of work for the Truevolt business, and that therefore Truevolt could pay Mr Hargood more, and Mr Hargood could work in a supervisory or managerial role.[102]
[101]T61, L10-15; T62, L5-8
[102]T63, L4-8
74While a noble ambition, I did not find that this submission compelling for the following reasons:
(a) whether Truevolt employs or engages other workers is not relevant for determining Mr Hargood’s capacity for suitable employment.
(b) it is a big leap to believe that Mr Hargood and his partner can take the business from where it is now to a place where the business can sustain another worker or subcontractors.
(c) it was contrary to Mr Hargood’s evidence, which I accept, that he could not engage an apprentice given that he can not work full-time.[103]
(d) Truevolt presently engages subcontractors to do some of the harder work, which has not led to an increase in the volume of work, nor has it led to Mr Hargood being able to undertake supervisory roles only.
(e) as suggested by Dr Wyatt, should Truevolt engage others to undertake physical tasks, it could lead to reduced, rather than increased, income for Mr Hargood,[104] which would likely mean a reduced earning capacity, rather than an increased earning capacity. While I have interpreted her comment as speculation as they went beyond Dr Wyatt’s area of expertise, it nonetheless highlighted the complexity of growing a small business in a sustainable, profitable way.
[103] T22, L29-31; T23, L1; T24, L13-17; T25, L1-3
[104] Exhibit D1, DACB 22
75Thus, I was not persuaded by these submissions and evidence regarding Mr Hargood’s earning capacity improving in the future if he were to take on an apprentice or subcontractor.
76I therefore prefer the opinion of Dr Brasier to Dr Wyatt with respect to Mr Hargood’s restrictions for physical work and the hours of employment he will be limited to working in the foreseeable future. That is, I prefer Dr Brasier’s opinion that Mr Hargood could work either two to three days a week in his current role, or four hours a day, five days a week in suitable employment.
77I have also relied on the opinion of Mr Freeman, Mr Hargood’s treating physiotherapist. He treats Mr Hargood approximately once a month and has a good understanding of Mr Hargood’s restrictions and what he has to do to maintain his capacity for employment. He referred to Mr Hargood having to be selective in the work that he undertakes, to work within his restrictions and to engage in pacing strategies to maintain his employment. Counsel for the defendant submitted that I ought not rely on his report as he had commented on mental health issues which were beyond his area of expertise. Most of his opinion was about Mr Hargood’s physical injury and impairment, rather than his impressions of Mr Hargood’s mental health. To the extent that he did comment on Mr Hargood’s mental health, it did not affect the reliability of the balance of his opinion. I have relied on those parts of his report that are within his expertise in arriving at my decision.
78Although the restrictions that Dr Pak thought Mr Hargood would be subject to for the foreseeable future were similar to those outlined by Dr Brasier, Dr Kincaid, Mr Freeman and Dr Wyatt, his evidence about the hours that Mr Hargood was subject to was vague. He said he “believe[d]”[105] that Mr Hargood was working eight hours a day, three days a week at the time that he saw him, but he did not say what his belief about the hours per day that Mr Hargood was working was based upon. Mr Hargood’s evidence was that he was working 16 hours a week at the time that he saw Dr Pak, not 24.[106]
[105] Exhibit D1, PCB 13
[106] Exhibit P1, PCB 147
79In any event, Dr Pak did not express a view about whether Mr Hargood was fit for 24 hours a week on a reliable and consistent basis. Rather, his opinion was that Mr Hargood was limited to working part-time as result of his lower back symptoms. Due to the lack of specificity regarding the hours that he believed Mr Hargood would be limited to working to each week, Dr Pak’s opinion has not assisted me other than providing general support for the proposition that Mr Hargood cannot work full-time.
80I have relied on the opinion of Mr Akil[107] in arriving at my decision. He thought that the 16 hours a week over three days that Mr Hargood was working at the time of his examination was appropriate given his restrictions. I have relied on his opinion given his expertise as a neurosurgeon, and the consistency of his opinion with Dr Brasier, Mr Freeman, Dr Kincaid and Dr Wyatt regarding the other physical restrictions that Mr Hargood is subject to into the foreseeable future.[108]
[107] Exhibit P1, PCB 101
[108] Exhibit P1, PCB 102
81I am conscious that my finding that Mr Hargood can work 16 hours a week as an electrician may be optimistic in the context of the opinions of Dr Kincaid,[109] Dr Brasier[110] and Dr Akil[111] that his symptoms may deteriorate in the future.
[109] Exhibit P1, PCB 66
[110] Exhibit P1, PCB 110
[111] Exhibit P1, PCB 101
82Mr Hargood’s evidence was that he has tried to work up to 36 hours a week,[112] and to lift weights of up to 25 kilograms[113]. He has not found this sustainable. He has been stoic in his efforts to return to suitable employment, for which he ought to be commended, not penalised.[114] He has been diligent in undertaking rehabilitation and doing home exercises as well as working with and following the advice of Dr Kincaid and Mr Freeman. It was apparent from his evidence that he is frustrated by his inability to provide the financial support to his family that he imagined he would be able to with his change of career.[115] He and his partner have had to borrow money from her parents to get by.[116] His evidence was, and I accept that, he has come to realise that he has to manage his symptoms in a manner that is sustainable to maintain his employment as an electrician into the future. And thus, despite trying to work more hours with less restrictions, he has come to realise that the limit of the hours he can reliably and consistently work, with greater restrictions than he would like, is 16.
[112] Exhibit P1, PCB 19 at paragraph [29]; T9, L4-8
[113] T48, L2-9
[114] Jarvie v Sideliner Contracting Pty Ltd [2024] VSCA 144, [69]
[115] T37, L25-30; T47, L4-10
[116] T37, L28-31
83I find that the work that Mr Hargood is undertaking as an electrician is suitable, subject to complying with the physical restrictions for employment outlined particularly Dr Brasier as referred to in paragraph 34 above, and supported by Mr Freeman, Dr Kincaid and Dr Wyatt.
84I also find that Mr Hargood can work 16 hours a week as an electrician on a regular and consistent basis,[117] based on his evidence, his partner’s evidence, and the evidence of Mr Akil regarding the appropriateness of the hours he is working over three days. I have also relied on Dr Kincaid’s opinion insofar as it was based on Mr Hargood having tried, and failed, to work 36 hours a day lifting weights up of to 25 kilograms “day in day out”[118] in arriving at this decision.
[117] Harris v DJD Earthmoving Pty Ltd [2016] VSCA 188, [49]
[118] Exhibit P1, PCB 67
85While Dr Brasier also provides support for working as an electrician over three days, he did not specify how many hours per day. Also, it was unclear what he meant by Mr Hargood being restricted to “supervisory roles”, given that the work that Mr Hargood is doing presently would not normally be referred to as a supervisory role. The way I have interpreted his opinion is in the context of the evidence that Mr Hargood provided regarding the work that he is undertaking.
86Dr Brasier was clear in his alternative opinion that Mr Hargood could work four hours a day over five days a week in suitable employment. This supported the proposition that if he were to work consecutive days, he would need adequate periods of rest each day to allow him to continue with that suitable employment.
87There was no evidence relied upon that demonstrated that there was work available as an electrician, or for the other roles identified by IPAR, that met this requirement and all other requirements of the definition of suitable employment, such as taking account of Mr Hargood’s place of residence and the requirement to spend part of the day driving to and from various worksites. It simply did not strike me as realistic that Mr Hargood could work as an electrician, whether for Truevolt or another company, for only four hours a day.
88Based on his evidence, and that of Ms Bannister about the challenges he is facing working 16 hours week, I also thought 20 hours of work a week was unrealistic, albeit limited to four hours a day.
89I thus did not believe that a finding of 20 hours a week, over consecutive days, was supported by the evidence.
90However, if there had been evidence that there was a position that was available, and that it was within the restrictions that Mr Hargood could reliably and consistently work, I might have found that Mr Hargood was limited to working 20 hours a week, being four hours a day, five days a week subject to the restrictions previously referred to on the basis of Dr Brasier’s report and his expert opinion as an occupational physician. However, as this was not made out on the evidence, I have found that he is limited to 16 hours a week as an electrician on a regular and consistent basis.
What are Mr Hargood’s without injury earnings?
91As Mr Hargood was an apprentice at the date of the injury, sections 325(2)(i) and 325(2)(f) of the Act do not apply. That is, he does not need to establish that he has a 40 per cent or more loss of earning capacity as at the date of the hearing, and the formula set out to determine that in section 325(2)(f) has no application.
92However, Mr Hargood does need to satisfy the Court that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which is productive of a financial loss of 40 per cent or more to be granted leave to proceed based on his pecuniary loss.[119]
[119] Section 325(2)(e)(ii)
93Thus, the Court must determine:
(a) What Mr Hargood’s without injury earnings are;
(b) What Mr Hargood’s permanent earning capacity is;
(c) Whether Mr Hargood has a permanent loss of earning capacity that is productive of a financial loss of 40 per cent or more.
94Counsel for Mr Hargood relied on the affidavit evidence of Mr Quick and Mr Mackrell in support of the submissions regarding Mr Hargood’s ‘without injury earnings’.
95Mr Mackrell is an A Grade electrician. He and Mr Hargood met playing football in 2007. He owns and operates his own business. He has ten electricians that work for him as employees or subcontractors regularly. They work Monday to Friday, and at least half a day on Saturday. He said that solar and battery work was well remunerated because it was hard physical work. His experience with subcontractors was that the going rate was at least $650 a day plus GST, or $65 an hour plus GST. He said that if Mr Hargood was available to work, he would be able to give him four days’ worth of work at $650 per day plus GST.[120]
[120] Exhibit P1, PCB 35 at paragraph [8]
96Mr Quick is also an A Grade electrician. He met Mr Hargood while they were at TAFE together. After working for two different companies, he established his own business in September 2023. He engaged Mr Hargood as a subcontractor for work consistent with Mr Hargood’s restrictions about five times over the two months prior to swearing his affidavit. He said that if Mr Hargood was available to do all the duties that he needed done, he would have him work for him on a subcontractor basis of $1,000 a day, including GST.[121]
[121] Exhibit P1, PCB 39 at paragraph [11]
97There was also evidence from Ms Morgan from Flexi Personnel regarding the earnings of an A Grade electrician. Her evidence was that the average base salary for an A Grade electrician in North-East Melbourne was $64.50 an hour or $516.00 per day, and in North-East Victoria was $58.87 an hour or $471 per day.[122]
[122] Exhibit P1, PCB 139
98Counsel for the defendant submitted that I should not rely on the evidence of Mr Mackrell and Mr Quick as it was speculative, they were inconsistent between each other regarding earnings and there were a number of variables that affected whether they could be relied on in Mr Hargood’s case.[123]
[123] T65, L5-8
99Counsel for the defendant submitted I should prefer the evidence of Flexi Personnel to determine the hourly rate of an electrician. Counsel submitted that I should find that the without injury earnings of Mr Hargood were $117,648 based on earnings of $64.50 an hour multiplied by a 38 hour week, multiplied by 48 weeks of the year. Sixty per cent of $117,648 was $70,589.
100Counsel for Mr Hargood submitted that I should place weight on the unchallenged evidence of Mr Mackrell and Mr Quick to determine Mr Hargood’s without injury earnings. He submitted that their evidence was not speculative, as they asserted that they would employ Mr Hargood for $650 a day and $1,000 a day respectively.
101Counsel for Mr Hargood submitted that I should determine the without injury earnings on the basis that Mr Hargood would have worked five and a half days a week, as this was his unchallenged evidence.[124]
[124] Exhibit P1, PCB 26 at paragraph [26]; T76, L1-8
102Counsel for Mr Hargood also submitted that I should calculate his without injury earnings based on four and a half days a week at $650 a day, and one day a week at $1,000 a day. The basis of this submission was accepting Mr Mackrell’s evidence that he could provide Mr Hargood with work for four days a week if he was able to work unrestricted duties, an additional half day that Mr Hargood said he would have worked on the less favourable of the rates of Mr Mackrell and Mr Quick, and one day of work at the rate allowed for by Mr Quick. Counsel submitted that I should thus find that Mr Hargood’s without injury earnings were $188,400, and that 60 per cent of those earnings was $113,400 per annum.
103Alternatively, if I did not accept the evidence of Mr Quick and Mr Mackrell, and instead preferred the evidence of Flexi Personnel, Counsel for Mr Hargood submitted that I should undertake those calculations on the basis that Mr Hargood would have worked 42 hours a week rather than 38, given his evidence that he would have worked five and a half days a week. Using this methodology, the without injury earnings would equate to $130,032, sixty per cent of which would be $78,019.
Analysis
104Turning firstly to Mr Hargood’s without injury hours, I accept his unchallenged evidence that he intended to work at least five and a half days a week had he not been injured.
105I also accept his unchallenged evidence that he intended to work for himself and build a business.[125]
[125] Exhibit P1, PCB 26 at paragraph [26]
106This is significant, as there was no evidence that he intended to work as a sub-contractor.
107Mr Hargood is an employee of Truevolt.[126] I have inferred that the arrangements that he is presently working under are the arrangements that he would have been working under had he not been injured: that is, that he would have been an employee of Truevolt.
[126] T10, L28
108I thus was not persuaded that it was appropriate to rely on the evidence of Mr Quick and Mr Mackrell regarding the rates of pay to determine Mr Hargood’s without injury earnings, as their rates were based on the rates they paid their sub-contractors.
109I preferred the evidence of Flexi-Personnel. Their rates were based on the average base salary of a full-time A Grade electrician, which aligns with the evidence that Mr Hargood gave.
110While Flexi-Personnel provided two rates, one being for North-East Victoria, and the other being for Nort-East Melbourne, the submissions made by both Counsel for the defendant and Mr Hargood was that it was appropriate to rely on the higher of those two rates, that being the rate for North-East Melbourne. Given that this was not an area of contest between the parties, I accept that this is appropriate.
111Applying those rates to 42 hours a week, over 48 weeks of the year, I find that Mr Hargood’s without injury earnings were $130,032, and that 60 per cent of those earnings is $78,019 per annum.
Will Mr Hargood continue permanently to have a loss of earning capacity that is productive of a financial loss of 40 per cent or more?
112As outlined at paragraph 83, I have found that Mr Hargood is permanently limited to working 16 hours a week over two to three days in suitable employment on a reliable and consistent basis.
113I have also said that in the alternative, he is limited to working 20 hours a week, being four hours a day, five days a week.
114Counsel for both parties accepted that I should calculate Mr Hargood’s permanent earning capacity based on the rate contained within the Flexi Personnel report, that is, $64.50 an hour.
115I have preferred that to relying on his actual earnings of $59,626.43 for the financial year ending 30 June 2024, given the variation in the hours he worked during that year.
116Applying that rate to my finding that Mr Hargood’s permanent capacity for employment is 16 hours a week, Mr Hargood’s permanent earning capacity is $49,536 per year.
117If I were to instead apply that to 20 hours a week, he would be capable of earning $54,180 per year.
118Both figures fall below the 60 per cent threshold of $78,019 per year.
119I therefore find that Mr Hargood has a permanent loss of earning capacity that is productive of a financial loss of 40 per cent or more.
120Counsel for both parties accepted that if I were to make this finding, Mr Hargood would be entitled to leave to proceed with a claim for damages for his loss of earning capacity and his pain and suffering without the need for me to make findings regarding his pain and suffering.[127]
[127] Consistent with Acir v Frosster Pty Ltd [2009] VSC 454, [147]; Advanced Wire & Cable Pty Ltd v
Abdulle [2009] VSCA 170, [63]
Conclusion
121I find that Mr Hargood is entitled to leave to proceed with a claim for damages based on his pain and suffering and loss of capacity.
122I ask the parties to draft orders to reflect this finding and will hear from the parties on the question of costs.
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