Hopkins v Henty Administration Services Pty Ltd
[2022] VCC 879
•24 June 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-21-04604
| MICHAEL HOPKINS | Plaintiff |
| v | |
| HENTY ADMINISTRATION SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 May 2022 | |
DATE OF JUDGMENT: | 24 June 2022 | |
CASE MAY BE CITED AS: | Hopkins v Henty Administration Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 879 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury – loss of earning consequences and pain and serious consequences – Plaintiff a credible witness – Plaintiff currently operates two businesses – dispute as to earning capacity – inferences drawn from Plaintiff’s failure to call his partner as a witness
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Jones v Dunkel [1959] 101 CLR 298; Petkovski v Galletti [1994] 1 VR 436; Nicholson v Victorian WorkCover Authority [2016] VSCA 146
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Frederico with Mr Y.C. Chen | Gordon Legal |
| For the Defendant | Ms K Gladman | Russell Kennedy Lawyers |
HIS HONOUR:
1Michael Hopkins claims to have sustained a serious injury in the course of work with the Defendant on 16 January 2017. He seeks leave to bring proceedings in respect of both pain and suffering and loss of earning capacity. It is not in dispute that he suffered injury to his neck that was caused by an incident at work. It was not seriously in contest that the pain and suffering consequences were more than significant or marked. The main issue for determination was, whether or not Mr Hopkins could satisfy the test of having sustained a loss of earning capacity of 40 per cent or more when a comparison was made between his without injury earnings, and the gross income that he was capable of earning in suitable employment as at the date of the hearing before the Court. I have come to the conclusion, having made the assessment, that Mr Hopkins satisfies the relevant test in s325 of the Workplace Injury Rehabilitation and Compensation Act 2013.
Relevant background matters
2These matters are largely not in contest and can be taken directly from Mr Hopkins’ first Affidavit. Mr Hopkins was born in the United Kingdom, South Wales in December 1970. He completed schooling to Year 10 and then worked as a bricklayer. He came to Australia in 1996 and worked as a bricklayer and renderer for many years. In about 2005 he joined a company called Murex Pty Ltd where he worked as a solid plasterer and renderer. In turn Murex Pty Ltd became Henty Administration Services Pty Ltd (“Henty”), the current Defendant. Mr Hopkins deposed in his Affidavit material that, prior to the accident in 2017, he was very active. He had a number of outdoor pursuits which he particularly enjoyed involving skiing, hunting, kayaking, hiking and camping.[1] As of 2021, he had two teenage children and has recently re-partnered. There was no debate before the Court that any of his past medical history prior to 2017 was relevant.
[1] Plaintiff’s Court Book (“PCB”), at paragraph [8]
3On 16 January 2017, Mr Hopkins was at a construction site when he walked into a scaffolding pole.[2] He was wearing a hard hat when he struck his head and fell down. He continued to work but soon began to develop a loss of grip and strength in his right arm as a result of the injury to his neck.[3] It was accepted by the Defendant that he had suffered an aggravation of cervical spondylosis at the C3/4 and C4/5 levels with referred symptoms to the right arm.[4] Over the next few weeks, he attended physiotherapy sessions but as these were not relieving his symptoms he saw his treating doctor, Dr Zain Gorji, in March 2017. Thereafter he came under the care of Dr Wayne Ng, a neurosurgeon. After scanning revealed the extent of the problems in his neck, being the aggravation of the underlying spondylosis and impingement caused by disc bulging at two levels in the cervical spine, Mr Ng performed surgery on 11 July 2017.[5] This was cervical foraminotomies and rhizolysis. He remained off work throughout the remainder of 2017. He commenced physiotherapy shortly after his surgery and continued with that.[6] In early 2018 he attempted to return to work for a few weeks but was unable to cope.[7] He had a further flareup of pain in August 2018.[8] He then had a major flareup of pain in September 2018 which caused him to go off work.[9]
[2] PCB 6, at paragraph [12]
[3] PCB 6, at paragraph [13]
[4] PCB 57; Transcript (“T”) 196, Line (“L”) 15-16
[5] PCB 57
[6] PCB 107; PCB 58
[7] PCB 126
[8]PCB 8, at paragraph [24]
[9] PCB 126
4In early 2019 he returned to work on light duties and then began building up his hours.[10]
[10] Ibid
5From late 2019 he began working five days per week. He gave evidence that he was performing lighter duties particularly as he was struggling with aspects of rendering and repetitive motions.[11] He considered this to be full time restricted duties.
[11] T33, L23
6In March 2020 he suffered another relapse due to neck pain but managed to continue working.[12] The evidence appears to be that as of mid-2020 he was back to working full time, being 40 hours per week.[13] This accords with his initial claim form which indicated that prior to his injury he was working 40 hours per week.[14] Mr Hopkins’ gave evidence, however, that he was working restricted duties with ongoing pain and symptoms in mid-2020. He gave evidence that his workmates covered for him when he couldn’t do a particular task.[15]
[12] PCB 8, at paragraph [26]
[13] T82, L24-25
[14] PCB 34
[15] T72, L18-21
7In mid-2020 he began experiencing worsening problems in his right elbow. These problems progressively worsened over three months and he ceased work in September 2020.[16] His right elbow injury was diagnosed as tearing of ligaments on both the medial and lateral sides.[17] He has not worked with Henty since this time.
[16] DCB 107
[17] DCB 61
8In mid-2021 he was diagnosed with cancer of the tongue and had chemotherapy over seven weeks.[18] All treatment was completed in September 2021 and it is not expected that he will have a recurrence.[19]
[18] PCB 109
[19] T75, L8-9
9In about January 2021 his treating doctor certified him fit for light duties only, performing 32 hours work per week.[20] At about this time Mr Hopkins began to have difficulties at work, not only with the physical tasks but what he describes as a “toxic” work environment.[21] As a result, he took annual leave and then long service leave.
[20]PCB 91
[21] T72, L26-27
10Ultimately, he formally resigned in June 2021 from the Defendant’s employment.[22]
[22] T72, L23
11In May 2021 Mr Hopkins attempted to begin his own business providing instant mortar to commercial sites. He previously had started a company named Mercol Pty Ltd in 2010 but it had essentially lain dormant. In May 2021 he established Margram Pty Ltd. He used these two companies to develop the instant mortar business. Mr Hopkins gave evidence that the instant mortar process was untried in Victoria but widely accepted throughout Europe and Western Australia.[23] The process involves loading dry mortar into silos which are kept at the construction site. After the dry mortar is added, the silos have the ability to mix the dry mortar with water to produce a mortar mix which can be used by the turning on of a tap.[24] To begin this business Mr Hopkins bought two large silos from Germany and two used silos from Western Australia.[25] He obtained an agreement from a construction company called Berne Constructions to trial his proof of concept on their Caulfield Village site beginning in mid-2021.[26] Since that time he has been operating this business at the Caulfield Village site. Mr Hopkins’ evidence is that he attends the site most days and spends anywhere between three and seven hours on site.[27] In addition, he does some administrative duties, perhaps over weekends, for four to five hours and gets assistance from his partner to perform such work.[28]
[23] T 26, L24
[24] T 23, L4-10
[25] T 23, L16-17; T23, L30-31
[26] T 122, L6; T122, L15
[27] T 79, L19
[28] T 80, L25-26
12Bank account statements for Mercol Pty Ltd did not show any income being drawn by Mr Hopkins and he denied that he had been paid a wage or taken any money for personal use from the company.[29]
[29] T 50, L10
An assessment of the pain and suffering consequences
13As stated previously, this was not seriously contested by the parties. I find that Mr Hopkins has sustained an injury to the cervical spine. I find this is an aggravation of underlying spondylosis. I find that the consequences are more than significant or marked. I make this finding first on the basis of Mr Hopkins’ evidence. I observed him in the witness box for over two hours. He gave evidence in a very considered, thoughtful and straightforward manner. He did not seek to embellish his evidence in any way. His history and presentation reinforce my finding that he is an industrious man who has attempted to deal with his serious neck condition in a determined manner. He has attempted to return to work on numerous occasions after flareups of pain and is currently establishing his own business. He has poured significant savings into that business, in the hopes that it will generate a future for him. I also base my assessment of his credit on the video evidence which was shown. Three tranches of videos were shown over numerous days from 2021 and 2022. The videos were almost entirely consistent with Mr Hopkins’ evidence. In addition, they showed that he required breaks during the course of his attendances on site. Overall, I consider Mr Hopkins to be a witness of truth.
14Second, the pathology showed that the aggravation from the 16 January 2017 incident was significant. It was so significant that his treating neurosurgeon considered the possibility of cervical fusion. In the end such a path was not taken, but the surgery at the cervical spine was nonetheless serious and complex. This speaks to the seriousness of his pathological change, that almost immediately after the injury he began to lose strength in his right arm and it was found to be wasted and weak on clinical examination. Some arm strength has been recovered but not all of it. That is a significant permanent impairment for a worker who is right hand dominant and reliant on his physical skills.
15Third, Mr Hopkins has had significant periods of physiotherapy and acupuncture to try to deal with his symptoms. Those symptoms involve periods where his neck pain flares up to such an extent that he is unable to work. That much was the case in 2018. More recently, Mr Paul D'Urso in his 2021 report notes that recent imaging showed the deterioration in the state of the neck.[30] All doctors opine that this is a condition which is subject to deterioration and flareups of pain. They also accept that ongoing physiotherapy and acupuncture might be needed to cope with such flareups. This is a regime of having to constantly try to maintain and cope with the deteriorating condition.
[30] PCB 100
16Fourth, it is accepted that even though Mr Hopkins returned to work, his rendering and plastering duties after the 2017 accident were modified by him in the course of his work with the assistance of colleagues. All doctors now accept that he should not return to rendering and plastering work. This includes both Dr Kennedy[31] and Dr Wyatt,[32] whose evidence as occupational physicians has considerable weight. The fact that he has lost the trade that he has held since Year 10 is a significant blow.
[31] PCB 110
[32] DCB 65
17Fifth, he has lost many outdoor activities set out in his first Affidavit at paragraph 8.[33] He is quite clearly a man who enjoyed outdoor pursuits and he is now robbed of them.
[33]PCB 4; PCB 10
18Sixth, he gave evidence that he experiences constant pain in his neck.[34] The pain varies in intensity but at the end of the day his pain can get up to 6 ½ out of 10.[35] I consider that Mr Hopkin’s experience of constant pain, now for over five years and into the foreseeable future to be a significant consequence.
[34] PCB 9, at paragraph [30]
[35]PCB 94
19Seventh, he gave evidence that his sleep is interrupted by pain and he wakes up feeling unrefreshed.[36] I consider this to also be a significant consequence.
[36]PCB 9, at paragraph [34]
20I note that none of the matters set out above affected him prior to the work injury. I am thus able to delineate the effects of the workplace injury in accordance with the requirements in Petkovski v Galetti.[37]
[37] [1994] 1 VR 436
21For the brief reasons set out above, I grant Mr Hopkins leave in respect of pain and suffering.
Loss of earning capacity
22I am required to first find what the “without injury” earnings are. This is done by assessing the earnings in the three years before, and three years after the date of the injury to establish the figure that most fairly reflects what Mr Hopkins was capable of earning from personal exertion. Mr Hopkins had a multitude of alternative figures which he put. However, I find the correct figure is $90,370.[38] This is the figure for Mr Hopkins’ earnings in the financial year prior to the date of injury. It includes the allowances Mr Hopkins received from the Defendant as part of his income.[39] The 60 per cent figure then is $54,222.
[38] PCB 214
[39]Nicholson v Victorian WorkCover Authority [2016] VSCA 146 at [32]
23The figure of $54,222 must then be measured against Mr Hopkins’ gross earnings:[40]
(a) in suitable employment or not; or[41]
(b) that he was capable of earning in suitable employment.[42]
[40] Workplace Injury Rehabilitation and Compensation Act 2013, s325(f) (“WIRC Act 2013”)
[41] WIRC Act 2013, s 325(f)(i)(A)
[42] WIRC Act 2013, s 325(f)(i)(B)
24The Defendant first submitted that Mr Hopkins’ actual earnings were in excess of the threshold. In a supplementary submission, the Defendant argued that the facts of his earnings were insufficiently exposed to allow the Court to make any true finding as to his actual earnings.
25In assessing Mr Hopkins’ actual gross earnings, I find this figure is nil. Mr Hopkins’ is engaged with Mercol Pty Ltd and Margam Holdings Pty Ltd, his own businesses, supplying mortar and silos to construction sites. He gave evidence that he draws no wage from both businesses.[43] The bank statements confirm this.[44] To the extent the Defendant made submissions about the lack of disclosure of these matters in the Affidavit material, I find that Mr Hopkins identified as early as his first Affidavit that he was exploring an opportunity to set up his own business and, after his second Affidavit, his solicitors informed the Defendant quite clearly that he was working. This was in May 2022. Also, the Defendant was aware from the surveillance in November 2021, which was shown in Court, that Mr Hopkins was on site with Mercol Pty Ltd; this is because the video clearly showed him engaged in that work. He was wearing badged “Mercol” clothing. None of this was hidden. It is true that Mr Hopkins did not descend to the fine detail of the arrangements of Mercol Pty Ltd and Margam Holdings Pty Ltd, or explain their operations as he should have. However, it is important to note that the Defendant elected to press on with the case and only in May 2022 served Notices to Produce in respect of accounts and profit and loss statements. If there was deficiency in the material produced, and the filing of the late Affidavit caused the Defendant prejudice, then the Defendant had the right to apply for an adjournment. It did not. Having made that forensic decision, it cannot now complain about the insufficiency of the material.
[43] T 50, L10
[44] DCB 134 -144; DCB 145-146; DCB 148; DCB 150; DCB 151; DCB 152; DCB 154, DCB 156, DCB 158
26I do not accept the Defendant’s submission that the turnover of Mercol Pty Ltd was so substantial that some income must have flowed to Mr Hopkins. An analysis shows overheads in fact outweighed income over the ten months of the operation of that business.[45]
[45] DCB 134 -144; DCB 145-146; DCB 148; DCB 150; DCB 151; DCB 152; DCB 154, DCB 156, DCB 158
27The Defendant also submitted that an inference ought be drawn in respect of the failure of Mr Hopkins to call his partner as a witness because she was involved doing booking for Mercol Pty Ltd and Margam Holdings Pty Ltd.[46] I consider that the lack of any Affidavit from Mr Hopkins partner does result in a Jones v Dunkel inference that her evidence would not have assisted the Plaintiff’s case.[47] I draw that inference. However it is not sufficient to displace the other evidence set out above as to why I accept Mr Hopkins’ primary submission that his actual earnings were nil.
[46] T 39-40, L31-1; T40, L4
[47] [1959] 101 CRL 298
28The second argument that the Defendant raised is that Mr Hopkins is capable of working 40 hours a week in a full time position. The Defendant then submitted that if Mr Hopkins worked 40 hours per week, then his income would result in earnings in excess of the threshold. I reject that argument. I find that Mr Hopkins can work only 32 hours per week. Additionally, I find that if he was to deploy that earning capacity in suitable employment, his earnings would not reach the threshold. I do so for the following reasons.
29First, his evidence is that he can work only three to seven hours per day. This is consistent with the history taken by Dr Wyatt.[48] Second, his treating doctor who has treated him since 2017 has been certifying him capable to only work 32 hours per week since January 2021. Third, the surveillance evidence displayed Mr Hopkins taking regular breaks during his work day. This is entirely consistent with him not being able to work consistent, regular, and sustained full time hours.
[48] DCB 60
30The Defendant argues, based on Dr Wyatt’s and Dr Ian Dickinson’s reports, that Mr Hopkins can work 40 hours per week.[49] I do not accept Dr Wyatt’s and Dr Dickinson’s opinion evidence. They both saw Mr Hopkins only once. They obviously did not accept Dr Gorji’s view, which I prefer because he has a longer history of treating Mr Hopkins and is the treating doctor. I also consider that the surveillance evidence displayed Mr Hopkins taking significant periods of rest during his work hours. This is strong objective evidence that is inconsistent with Dr Wyatt’s and Dr Dickinson’s theoretical assessment. I reiterate that I accept Mr Hopkins’ evidence which I consider to be untarnished. This reinforces my view that he cannot work full time hours.
[49] DCB 97
31Fourth, I prefer Dr Kennedy’s evidence to Dr Wyatt’s. He examined Mr Hopkins on two occasions, and he opined that Mr Hopkins should work in a way where he can set his own hours of work to account for his ongoing symptomatology.[50] This is consistent with Mr Hopkins’ evidence, and the way he performed work as depicted in the surveillance footage.
[50]PCB 110
32Taking those findings and applying them to each of the jobs the Defendant suggested Mr Hopkins was capable of earning income in, the following analysis reveals:
(a)Forklift operator:[51]
[51]DCB 110
Even at full time earnings of $985 per week, Mr Hopkins’ annual earning comes to $52,122. This is under the threshold.
(b)Traffic controller:[52]
[52]DCB 112
Accepting full time hours of work, such a person can earn $63,560, this equates to approximately $1,222 per week or $30.55 per hour. If Mr Hopkins can only work 32 hours per week in this position, as I have found, at $30.55 per hour this equals an annual earning of $50,847. This is under the threshold.
I make the point that both of these positions were not positions that Dr Kennedy accepted Mr Hopkins could perform,[53] and similarly Mr Hopkins swore that he could not perform these jobs on a full time basis.[54] I would accept those arguments given that I have accepted Mr Hopkins’ evidence in preference to that of Dr Wyatt and Dr Dickinson, and also that on the basis that I prefer the evidence of Dr Kennedy. However, putting those matters to one side in considering the Defendant’s case at its highest, in neither of these positions would Mr Hopkins exceed the threshold.
[53] PCB 119
[54] PCB 17, at paragraph [18]
(c)Store person:[55]
[55]DCB 114
Even at full time earnings of $950 per week, this equates to an annual figure of $49,400, which is under the threshold.
(d)Team member – hardware store:[56]
[56]DCB 130
This role has an earning capacity up to $30 per hour. Over 32 hours, this equates to $960 per week or on an annualised basis, $49,920. This is under the threshold.
(e)Trade salesman:[57]
In this position earning $30 per hour at 32 hours per week equals $960. This equates to $49,920 on an annualised basis which is under the threshold.
(f)Trade scheduler:
[57]DCB 132
The Defendant argued that this was the most likely position Mr Hopkins would obtain and the earnings would be about $65,000 per annum. However, when looked at closely, it can be seen that the figure of $65,000 per annum is based on information that was obtained from “seek.com.au” and was not a figure verified by any employer.[58] I consider it unreliable. I prefer the evidence of Ms Oliver, the employment consultant as to earnings for a trade scheduler, because it is based on an award rate which she gives as $27.32 per hour.[59] Even so and assuming the Defendant was right, $65,000 per annum equals $1,250 per week. On an hourly rate of over 40 hours per week this equals $31.25 per hour. Assuming $31.25 by 32 hours per week gives an annualised figure of $52,000. This is under the threshold.
[58] DCB 133
[59] PCB 212
33Overall, it can be seen that taking the Defendant’s case, even at its highest Mr Hopkins nevertheless succeeds. Given my finding that he has only a capacity for 32 hours per week, none of the suggested employment options put forward by the Defendant would provide Mr Hopkins with an annualised earning that exceeds the threshold.
34For all these reasons, Mr Hopkins must succeed. I will grant him leave to proceed in respect of loss of earning capacity.
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