Jones v Ian W & Rowena C Plush Family Trust (trading as Coorabil Pastoral Co) (ABN 60 984 638 601)
[2022] VCC 1275
•15 August 2022
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-04119
| DAVID TREVOR JONES | Plaintiff |
| v | |
| IAN W & ROWENA C PLUSH FAMILY TRUST (trading as COORABIL PASTORAL CO) (ABN 60 984 638 601) | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 11 and 12 July 2022 | |
DATE OF JUDGMENT: | 15 August 2022 | |
CASE MAY BE CITED AS: | Jones v Ian W & Rowena C Plush Family Trust (trading as Coorabil Pastoral Co) (ABN 60 984 638 601) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1275 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – loss of earning capacity consequences – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s3, s325(1) and (2); s335(2) and (5); Transport Accident Act 1986 (Vic), s6(2)
Cases Cited: Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Richter v Driscoll (2016) 51 VR 95; Giankos v SPC Ardmona Operations Ltd (2011) VR 120; Acir v Frosster Pty Ltd [2009] VSC 454; The Herald & Weekly Times Ltd v Jessop [2014] VSCA 292; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
Judgment: Leave granted to the plaintiff to commence a proceeding to recover pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr S Jurica | Saines Lucas Solicitors |
| For the Defendant | Mr P A Scanlon QC with Mr A W Middleton | IDP Lawyers |
Table of Contents
Introduction
The Plaintiff’s background
The Plaintiff’s medical history
The Plaintiff’s injury
Legal principles
Witnesses and evidence
Submissions
The Plaintiff’s submissions
The Defendant’s submissions
Compensable injury
Credit
Loss of earning capacity consequences
Forty per cent loss of earning capacity test – s325(2)(e)(ii) and (f) of the Act
Pre-injury earning capacity
After-injury earning capacity
Conclusion on whether the Plaintiff has suffered a loss of earning capacity of more than 40 per cent
Is the loss of earning capacity permanent?
Narrative test
Does the Plaintiff have a capacity for suitable employment after the injury?
If the Plaintiff has a capacity for suitable employment, were the Plaintiff’s attempts to participate in rehabilitation or retraining reasonable?
Conclusion
HER HONOUR:
Introduction
1On 15 April 2015, David Trevor Jones (“the plaintiff”) suffered an injury to his spine, including a fracture of fusion at the lumbosacral junction, while in the course of his employment crutching sheep with Coorabil Pastoral Co (“the defendant”) at their property in Coojar. The injury occurred when a sheep the plaintiff was handling refused to go through the “let-go” doorway in the shearing shed and the plaintiff turned sideways and attempted to wrestle the sheep through the doorway.
2By Originating Motion dated 17 September 2021, the plaintiff sought leave pursuant to s325(1)(a) of the Workplace Injury Rehabilitation and Compensation Act (2013) (“the Act”), to bring proceedings to recover damages for pain and suffering and pecuniary loss on the basis that he sustained a “serious injury”.
3The impairment, or loss of bodily function relied upon by the plaintiff, was the operation of his lumbar spine.
4At the hearing, counsel for the plaintiff indicated that pain and suffering had been conceded and the only issue in dispute was whether the plaintiff had suffered a loss of earning capacity of 40 per cent or more, such that he should be granted leave pursuant to s335(2)(d) of the Act to bring proceedings to recover pecuniary loss damages.
The Plaintiff’s background
5The plaintiff was born in June 1969 and is currently fifty-three years of age.
6The plaintiff is married. He and his wife have four children aged twenty-two, twenty, eighteen and thirteen, and three grandchildren.
7The plaintiff has worked as a shearer most of his life. He attended secondary school until midway through Year 11, when he left school due to poor grades. He then worked as a shearer for his father for six or seven years, following which he worked under a shearing contractor in Jerilderie for nine years.
8In 1999, the plaintiff, his wife and his brother’s wife, started a business working as nominated shearing contractors. As a contractor, the plaintiff would organise shearing jobs with farmers and provide the shearers. The plaintiff would earn a small commission. The shearers, including the plaintiff, would then be employed and paid directly by the farmers.
9The plaintiff’s shearing contracting business employs all of the plaintiff’s family members, including his son, Brady, his daughters, Jessie, Maddison and Olivia, and his wife, Sally. The business also employs four to five other people, from time-to-time, but the bulk of the work is done by the plaintiff’s family members.
10Up until the date of injury, the plaintiff was working as a shearer full time, usually five days a week, for eight hours a day.
11On 15 April 2015, the plaintiff was engaged in work crutching sheep for the defendant. He was both a shearer and the shearing contractor, and was being paid by the defendant per sheep crutched. He was also paid a commission fee of 16 cents per sheep as the shearing contractor, for organising the job. He was contracted to crutch an estimated 11,000 Merino sheep.
12In the three years prior to his injury, the plaintiff earned $52,238 in the 2011/2012 financial year; $84,000 in the 2012/2013 financial year and $88,315 in the 2013/2014 financial year.
13In the three years after his injury, the plaintiff earned $77,797 in the 2014/2015 financial year; $80,727 in the 2015/2016 financial year and $55,129 in the 2016/2017 financial year.
14In subsequent financial years, the plaintiff earned $79,184 in the 2017/2018 financial year; $122,405 in the 2018/2019 financial year; $33,599 in the 2019/2020 financial year and $14,881 in the 2020/2021 financial year.
The Plaintiff’s medical history
15The plaintiff had a previous medical history of an L4-5 and L5-S1 prolapse injury to his back while shearing in 2006. He had surgery. Two artificial discs were inserted, and there was a spontaneous fusion across both levels. He made a very good recovery and returned to shearing after three or four months. Within six months of the operation, he was shearing 300 sheep per day without significant back pain.
The Plaintiff’s injury
16On 15 April 2015, while crutching sheep, the plaintiff attempted to wrestle a sheep through the let-go doorway. The plaintiff felt something give and experienced a sudden onset of severe pain in his lower back.
17The plaintiff stayed at the shearing shed and continued to crutch sheep for the rest of the day.
18The following day, the plaintiff was still experiencing pain and attended his general practitioner, Dr Victoria Blackwell at the Hamilton Medical Group. He took Panadeine Forte, which did not reduce his pain, and returned to Dr Blackwell on 21 April 2015. Dr Blackwell referred the plaintiff to see Associate Professor Graeme Brazenor, neurosurgeon.
19The plaintiff consulted Associate Professor Brazenor, who prepared reports dated 8 May 2015, 21 May 2015, 16 July 2015, 16 November 2015 and 28 April 2016. Associate Professor Brazenor referred the plaintiff to Mr Peter Wilde, orthopaedic surgeon, for a second opinion.
20On 10 May 2016, the plaintiff was seen by Mr Wilde. Mr Wilde arranged bone scans and referred the plaintiff to Mr John Cunningham, orthopaedic surgeon.
21In June 2016, the plaintiff saw Mr Cunningham, who diagnosed a fracture around the lumbosacral disc replacement, which had been inserted into the plaintiff’s lumbar spine at the L4-5 and L5-S1 levels following surgery in 2006.
22On 31 August 2016, Mr Cunningham performed a revision of the L5-S1 fusion. There was a horizontal crack across the disc. Mr Cunningham subsequently notified the plaintiff that the disc replacement was firmly embedded into the bone and was unable to be removed.
23On 25 May 2017, Mr Cunningham ordered facet joint injections; however, the plaintiff’s pain worsened.
24When next seen on 8 August 2017, Mr Cunningham recommended a further revision surgery and advised that the plaintiff obtain sedentary employment.
25On 16 April 2018, Mr Cunningham performed a posterior lumbar decompression and fusion of L4-S1.
26From the date of the injury until October 2019, the plaintiff was off work receiving weekly payments of compensation.
27The plaintiff returned to shearing in October 2019 against the advice of his doctors. He said, in his affidavit, that he had done shearing work all of his life and he was desperate to get back to work.
28In March 2021, the plaintiff hurt his left knee. He had an arthroscopy and recovered.
29The plaintiff now works on average one to two days per week. The plaintiff considers he is working as much as possible.
Legal principles
30Where a plaintiff claims to have suffered a “serious injury” as defined in s325(1)(a) of the Act, the term “serious” is satisfied by reference to the consequences to the worker of any impairment or loss of body function with respect to either pain and suffering, or loss of earning capacity, when judged by comparison with other cases in the range of possible impairments or losses of body function.[1]
[1] Section 325(2)(b) of the Act
31The impairment or loss of body function is not to be held to be “serious” for the purposes of s335(2) unless the loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as being more than significant or marked, and as being at least very considerable.[2]
[2] Section 325(2)(c) of the Act
32In addition, in relation to loss of earning capacity, leave must not be granted unless the worker establishes that, at the date of the application, the worker has a loss of earning capacity of 40 per cent or more, measured as set out in s325(2)(f) of the Act[3] and the worker will, after the date of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.[4]
[3] Section 325(2)(e)(i) of the Act
[4] Section 325(2)(e)(ii) of the Act
33Section 325(2)(f) of the Act determines the calculation of the relevant loss of earning capacity by comparing the gross income the worker is earning, or is capable of earning, in “suitable employment” at the date of the hearing (“after-injury earnings”), and the gross income the worker was earning, or was capable of earning, in suitable employment “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).
34Section 325(2)(g) further provides:
“a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining—
(i) has; or
(ii) after rehabilitation or retraining, would have—
a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
… .”
35“Suitable employment” is defined in s3 of the Act to mean:
“… employment in work for which the worker is currently suited—
(a) having regard to the following—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv)the worker’s place of residence;
(v) any plan or document prepared as part of the worker’s return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b)regardless of whether—
(i) the work or the employment is available; or
(ii) the work or the employment is of a type or nature that is generally available in the employment market.”
36Section 325(2) provides that, for the purposes of the assessment of serious injury in accordance with s335(2) and (5) of the Act, “income from personal exertion” has the same meaning as in s6(2) of the Transport Accident Act 1986 (Vic).
37Section 6(2) of the Transport Accident Act provides that:
“Income from personal exertion in relation to a person means—
(a) the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and
(b) the proceeds of any business carried on by that person either alone or in partnership with any other person; and
(c) any amount received as bounty or subsidy in carrying on a business; and
(d) the income from any property where that income forms part of the emoluments of any office or employment of profit held by that person; and
(e) any profit arising from the sale by that person of any property acquired by the person for the purpose of profit-making by sale or from the carrying on or carrying out of any profit-making undertaking or scheme—
but does not include—
(f) interest, unless that person’s principal business consists of the lending of money, or unless the interest is received in respect of a debt due to that person for goods supplied or services rendered by the person in the course of the person’s business; or
(g) rents or dividends; or
(h) any employer superannuation contribution.”
38In Barwon Spinners Pty Ltd & Ors v Podolak,[5] Ashley and Kaye JJA considered what was meant by the phrase “suitable employment” in s5 of the Accident Compensation Act 1958. Their honours observed (at paragraph 25) that the concept:
“… looks to the possibility of employment after injury; hence the reference to ‘work for which the worker is currently suited’. Age, education, and experience are among the matters relevant, as also are the nature, and no doubt extent, of the worker’s incapacity and, of course, pre-injury employment. Obviously employment is not to be regarded as ‘suitable’ if situated too far from the worker’s place of residence; and so, a specialist factory in Mildura will not ordinarily be regarded as providing ‘suitable employment’ for a worker resident in Melbourne. The expression ‘whether or not that work is available’ emphasises that the definition is looking to the capacity to work, meaning the physical capacity for employment. If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is ‘suitable employment’, whether, or not, the job is currently available.”
[5](2005) 14 VR 622 (“Barwon Spinners”)
39In Richter v Driscoll,[6] the definition of “suitable employment” again arose for consideration in the context of an appeal from a judge’s order dismissing an originating motion seeking an order, in the nature of certiorari, to quash the opinion of a Medical Panel. Ashley and Kaye JJA considered that the question of whether “suitable employment” should be given a different meaning than that given to it in Barwon Spinners did not arise.[7] Osborn JA said (at paragraph [146]):
“… Suitable employment means employment in work for which the worker is currently suited. The Act then provides for factors which must be considered in assessing whether the worker is able to return to employment in work for which the worker is currently suited. The factors listed in paragraphs (a)(i) to (iv) go to characteristics of the worker bearing on his or her employability and are not limited to physical capacities. The factors listed in paragraphs (a)(v) and (vi) go to factors related to processes intended to facilitate a return to work either by way of work plans or rehabilitation services. The significance of return to work is emphasised in the objects of the Act. The outcome of these processes may or may not have been successful, but, for present purposes, these factors are relevant in that they go to the capacity of the worker to return to work in employment in the broad sense that I have sought to explain.”
[6](2016) 51 VR 95
[7]Richter v Driscoll (ibid) at paragraph [80]
40The defendant bears the evidentiary onus to establish the existence of jobs which satisfy the characterisation of “suitable employment” and are within the plaintiff’s “after-injury” earning capacity;[8] although as the Explanatory Memorandum to the Workplace Injury Rehabilitation and Compensation Bill 2013 makes clear, “employment may be suitable employment regardless of whether it is available in the employment market”.
[8]Giankos v SPC Ardmona Operations Ltd (2011) VR 120 at paragraph [115]
Witnesses and evidence
41At the hearing, the plaintiff relied on the following evidence:
(a) an affidavit sworn by the plaintiff on 11 May 2021 (“the plaintiff’s first affidavit”);
(b) a further affidavit sworn by the plaintiff on 2 June 2022 (“the plaintiff’s second affidavit”);
(c) reports from his treating health practitioners, including Dr Blackwell, general practitioner; Mr Cunningham, orthopaedic surgeon; Associate Professor Brazenor, neurosurgeon, and Mr Wilde, orthopaedic surgeon.
(d) reports from medico-legal experts, including Mr W H Huffam, consultant orthopaedic surgeon; Dr David Kennedy, sports and industrial physician, and Mr John O’Brien, orthopaedic surgeon.
42The defendant relied upon:
(a) reports of Dr Catherine Bones, consultant occupational physician; Dr David Elder, occupational and environmental medicine consultant; Mr Patrick Lo, neurosurgeon; Mr Clive Jones, orthopaedic surgeon, and a joint report of Mr Roy Carey, orthopaedic surgeon, and Dr Tony Weaver, pain medicine physician.
Submissions
The Plaintiff’s submissions
43It was submitted on behalf of the plaintiff that, in accordance with s325(2)(e)(i) of the Act, the plaintiff has sustained a permanent loss of earning capacity of more than 40 per cent measured in accordance with paragraph (f). The plaintiff only has capacity to work as a shearer up to two days per week and does not have capacity for suitable employment. Consequently, no issue of the reasonableness of his attempts to retrain arises.
The Defendant’s submissions
44The defendant submitted that the plaintiff has not sustained a serious injury with respect to loss of earning capacity.
45First, it was submitted that pursuant to s325(2)(e), the plaintiff had not sustained a loss of earning capacity of more than 40 per cent measured as set out in paragraph (f) because:
(a) The salary received by the plaintiff from shearing, as disclosed in the plaintiff’s 2020 taxation return[9] for that financial year was $46,283, which demonstrates an ability to earn income. That figure compares favourably with his income from shearing in the 2012, 2013 and 2014 financial years, being $31,491 (2012), $25,492 (2013) and $21,557 (2014);
(b) In the three years following 2014, the plaintiff received weekly payments. Consequently, his income in those years is not reflective of his earning capacity;
(c) Because there are no contemporaneous medical reports to demonstrate that the plaintiff has had a downturn in earning capacity since the 2019/2020 financial year, the $46,283 best reflects the plaintiff’s “after-injury” earning capacity.
[9] Exhibit 2
46Second, pursuant to s325(2)(g) of the Act, the plaintiff cannot establish the loss of earning capacity required by paragraph (b) because:
(a) He has a capacity for suitable employment, largely in light sedentary work, as noted by Dr Andrew McAllan and Mr Cunningham, and in managing the contracting business;
(b) He is able to perform the jobs identified by Mr Bill Radley, including for example part-time employment as a shearer, bus driver, and “meals on wheels” driver. Further, the plaintiff had the ability to participate in an occupational retraining course, including TAFE-based courses Certificate III and IV; and
(c) Further, the medical reports of Dr Bones, Dr Kennedy and Mr O’Brien should be disregarded. Dr Bones saw the plaintiff about three months after the plaintiff’s last operation. At that time, it was too early to make an assessment as to the plaintiff’s work capacity. Consequently, Dr Bones’ report is of limited utility. Dr Kennedy’s first report, dated 1 June 2017, was before the last operation and because Dr Kennedy did not say that anything had changed in relation to retraining with respect to the plaintiff in his second report, Dr Kennedy’s reports are also of limited utility. Dr Elder was requested to do an impairment assessment and was not asked to assess capacity and, as a result, his report is also not of assistance. Further, Mr O’Brien’s opinion should be disregarded because he based his opinion on the premise that the plaintiff had been unable to work since 2021, whereas the plaintiff deposed that, at the times his affidavits were sworn, he could shear up to 120 sheep on a good day and 60 on a bad day. Further, Mr O’Brien’s opinion was contrary to the opinions of the other medical assessors who had seen the plaintiff since the operation.
47As to capacity for suitable employment, it was submitted that most of the medical opinions were obtained prior to the plaintiff’s last operation and, consequently, are of little probative value with respect to the plaintiff’s current work capacity.
(a) The authors who provided reports that deal with capacity are:
(i)Dr McAllan, who said that the plaintiff has a capacity for work; and
(ii)Mr Cunningham, the treating orthopaedic surgeon, who said he saw the plaintiff five weeks following surgery and considered he would be suitable for sedentary duties. He considered he had a partial work capacity. Beyond the fusion, the plaintiff’s back looked to be in good condition. Mr Cunningham was happy to have the plaintiff try to return to work. In July 2019, he noted that the plaintiff was not shearing, but was doing well managing the contracting business.
48In relation to the reasonableness of the plaintiff’s attempts to rehabilitate or retrain, it was submitted that the onus of showing that the plaintiff could not be retrained lay with the plaintiff, and he could not discharge the required onus based on the medical evidence. In particular, it was put that the plaintiff’s attempts to rehabilitate or retrain were unreasonable for the following two reasons:
(a) first, consistent with Dr McAllan’s report, other than the plaintiff’s rural background, there were no other relevant limitations to him being retrained;
(b) second, the plaintiff took no steps to retrain.
49Accordingly, the plaintiff’s attempts to participate in rehabilitation or retraining had not been reasonable.
Compensable injury
50It was not in dispute that the plaintiff had suffered a compensable injury to his lumbar spine as a result of his employment with the defendant.
Credit
51The plaintiff was cross-examined about various topics, including the operation of his shearing business and his earnings before and after his accident; his current ability to shear; the likely levels of his income and his attempts at retraining.
52The plaintiff’s credit was not particularly in dispute.
53Having observed the plaintiff give evidence, I found him to be an honest witness. He was not sophisticated, but he plainly told the truth. It was evident that, before his accident, he had previously been shearing a significant number of sheep each day and that had changed since his accident. Shearing was the only form of work he had ever known, and he endeavoured to continue to do it, even though it caused him pain, and he was unable to do it as quickly as he once had.
Loss of earning capacity consequences
54In making an assessment of whether the plaintiff has sustained a loss of earning capacity, the provisions of the Act require me to assess the following matters:
(a) Whether the plaintiff has sustained a loss of earning capacity of 40 per cent or more measured in accordance with s325(2)(f) of the Act. This requires me to compare the gross income from personal exertion which the plaintiff is earning, or is capable of earning, in suitable employment, at the date of the application, with the gross income from personal exertion that the plaintiff was earning, or was capable of earning, or would have earned, or been capable of earning, during that part of the period three years before and three years after the injury, as most fairly reflects the plaintiff’s pre-injury earning capacity;
(b) Whether the plaintiff will continue permanently to have a loss of earning capacity of 40 per cent of more measured in accordance with s325(2)(f);
(c) Whether the plaintiff’s loss of earning capacity consequences satisfy the narrative test and are, when judged by comparison with other cases in the range of possible impairments or losses of body function, fairly described as “being more than significant or marked”, and as being “at least very considerable”.[10]
[10] Section 325(2)(c) of the Act
55Even if the plaintiff has the requisite loss of earning capacity of 40 per cent or more, measured in accordance with s325(2)(f), because of the provisions of s325(2)(g), it is necessary to:
(a) take into account whether the worker has a capacity for suitable employment after the injury;
(b) where applicable, whether the worker’s attempts to participate in rehabilitation or retraining are reasonable;
(c) if so, whether the worker has a capacity for any employment, including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion, as determined in accordance with paragraph (f), had the injury not occurred.
56A worker does not establish the requisite loss of earning capacity if the worker, taking into account the worker’s capacity for suitable employment as well as, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining, has, or would have, a capacity for employment or alternative employment which would result in the worker earning more than 60 per cent of gross income, as determined in accordance with paragraph (f), had the injury not occurred.[11]
[11] Section 325(2)(g) of the Act
Forty per cent loss of earning capacity test – s325(2)(e)(ii) and (f) of the Act
57It was submitted on behalf of the plaintiff that he suffers the requisite 40 per cent loss of earning capacity, as per the statutory formula contained in s325(2)(e)(i) and (f) of the Act.
58In assessing whether the plaintiff has sustained the required 40 per cent loss of earning capacity, it is convenient to start by considering the plaintiff’s pre-injury earnings. This is dealt with in s325(2)(f)(ii) of the Act. Next, it is necessary to consider his after-injury earnings. This is dealt with in s325(2)(f)(i) of the Act. Finally, it is necessary to compare the after-injury earnings with the pre-injury earnings to assess whether a 40 per cent loss of earning capacity has been sustained.
Pre-injury earning capacity
59Mr Jurica, on behalf of the plaintiff, submitted that, based on the plaintiff’s taxation returns, his pre-injury earnings were best reflected by the amount the plaintiff earned in the 2013/2014 financial year. Mr Jurica submitted that, at the date of his injury – 15 April 2015 – the plaintiff was working with the defendant, and he earned $88,315 from personal exertion. That sum comprised $21,557 income earned as an employee and $66,758 earned by reference to his business.
60Mr Middleton, on behalf of the defendant, submitted that the figure which best reflected the plaintiff’s pre-injury earning capacity was to be ascertained only by consideration of the amount the plaintiff earned as an employee, without taking into account any sum earned by reference to the plaintiff’s business.
61To determine “pre-injury” earning capacity, the Court considers the gross income the worker was earning, or was capable of earning, from personal exertion, or would have earned, or would have been capable of earning, from personal exertion, during that part of the period within three years before and three years after the injury, as most fairly reflects the worker’s earning capacity, had the injury not occurred.[12]
[12]Acir v Frosster Pty Ltd [2009] VSC 454 at paragraph [165]; The Herald & Weekly Times Ltd v Jessop [2014] VSCA 292 at paragraphs [42]-[44]
62The definition of income from personal exertion in the Act has the same meaning as in s6(2) of the Transport Accident Act. It includes amounts that are income from earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered, and also the proceeds of any business carried on by that person, either alone, or in partnership with any other person.
63The plaintiff’s evidence was that he is a shearer. He works with his wife Sally, his son, Brady, and his three daughters Jessie, Madison and Olivia, in a contract shearing team. There are four to five other people who also work in the business; but the bulk of the work is done by the plaintiff’s family members.
64The plaintiff was asked, in cross-examination, whether the contracting business operated as a partnership and whether profits were shared.
Q:“Is it a partnership, the business?---
A:Well, yeah, I guess so.
Q:And do you share the profits equally?---
A:No.
Q:So how do you differentiate how you pay the profits, if there are profits to you, and your wife?---
A:My wife’s not – she’s a worker, it’s exactly the same.
Q:So it’s not a business partnership then?----
A:No.
Q:What’s your role in the business, apart from say doing the shearing and crutching, what do you actually do in the business?----
A:I just, um, write the accounts out, make sure the job flows nicely.”[13]
[13] Transcript (“T”) 36; Line/s (“L”) 21-30
65The plaintiff was not otherwise asked about the structure of the business in any detail.
66The plaintiff explained that, when he is contacted by a farmer with work, he contacts his regular workers and uses them to form a shearing team. Each worker provides their details to the farmer directly when they start working. He and his family members are paid by the business for each job they do. They are not paid a weekly wage. If he or his family members are not working in the shearing shed, they are not paid by the business. His wife, who performs administrative tasks in the business, does not get paid for the administrative work she does.
67In cross-examination, the plaintiff expanded on his evidence about the contracting arrangements. He said that sometimes, if a farmer does not want to become involved in paying WorkCover premiums and superannuation, the plaintiff will make those payments for his family members. However, that is not the usual arrangement. The usual arrangement is that each shearer is paid for each job completed directly by the relevant farmer.
68At the time he was injured on 15 April 2015, the plaintiff was earning $88,315 gross per annum. Based on the plaintiff’s evidence, what he said in cross-examination, the “Summary – Plaintiff’s income from personal exertion”, and in the absence of further evidence about the structure of the plaintiff’s business, I am satisfied that, at the date of his injury, the plaintiff was earning $88,315 gross per annum income from personal exertion, as defined by the Act. The $88,315 figure included earnings, and also the proceeds of the contract shearing business.
69In the three years prior to the date of his injury, having considered the summary of the plaintiff’s income from personal exertion,[14] the maximum gross income from personal exertion, the plaintiff earned was $88,315. Again, that was in the 2013/2014 financial year.
[14] Exhibit “A”, pages 178-179
70In the three years after his injury, the plaintiff’s maximum gross income from personal exertion was $80,727 in the 2015/2016 financial year.
71The plaintiff’s evidence was that his earning capacity depended on the number of sheep he was able to shear. Prior to his injury, he said he was able to shear not less than 200 sheep per day and up to 300 sheep per day. The plaintiff’s evidence was that he worked five days per week. I therefore accept that, at the date he was injured, the plaintiff had an earning capacity based upon his ability to shear not less than 200 sheep per day and up to 300 sheep per day. For practical purposes, the maximum income from personal exertion which this translated to prior to his injury was $88,315 gross per annum.
72Having considered the amount that the plaintiff was earning, or was capable of earning, from personal exertion, or would have earned, or would have been capable of earning from personal exertion, during that part of the period within the three years before and three years after the injury, I find that the amount which most fairly reflects his earning capacity, had the injury not occurred, is $88,315.
After-injury earning capacity
73To determine the plaintiff’s “with injury earnings”, it is necessary to consider the amount the plaintiff was earning, whether in suitable employment or not, or capable of earning in suitable employment, at the date of the hearing.
74Mr Jurica submitted that the plaintiff’s gross earnings from his role as a shearer at the date of the hearing was $14,881 and that sum best represents the plaintiff’s after-injury earning capacity.
75Mr Middleton, on the other hand, submitted that the plaintiff’s after-injury earning capacity was best determined by considering the amount he earned as an employee in the 2019/2020 financial year ꟷ $46,283 ꟷ without taking into account the loss incurred by the business. If the business loss is taken into account, the plaintiff’s income was $33,599. This was the amount noted in his 2019/2020 taxation return.
76The words of s325(2)(f) of the Act require consideration of what a worker is earning, and is capable of earning, from personal exertion, whether in suitable employment or not “as at that date”, being the date of the hearing of the application. The section does not require the Court to consider causation or what the worker was earning in the years before the date of the hearing. What a worker is capable of earning, whether in suitable employment or not, is a prospective enquiry determined on the facts as they exist at the date of the hearing.
77Consistent with the observation of J Forrest J in Acir v Frosster Pty Ltd[15] and the Court of Appeal in Yirga-Denbu v Victorian WorkCover Authority,[16] like s134AB(38)(f), s325(2)(f) is a gateway provision. The function performed by the section is to give access, if its conditions are satisfied, to an ability to bring common law proceedings. That function would be thwarted if it were to be necessary to take into account the effect of what a worker was capable of earning in the years after the date of injury, but before the date of hearing of the application, in calculating “with injury” earning capacity.
[15] (Supra)
[16] [2018] VSCA 35
78In my view, s325(2)(f) of the Act does not require detailed analysis or a forensic assessment of future earning capacity in a mathematical manner. Whether the terms of the section are met is a matter of judgment.[17] In my view, s325(2)(f) does not require me to consider what sum the plaintiff was earning in the 2019/2020 financial year. What is relevant, is what he was earning at the date of the hearing, whether in suitable employment or not, and also what he was capable of earning, and to make an assessment of what amount best reflects the plaintiff’s after-injury earning capacity.
[17] Yirga-Denbu (ibid) at paragraph [89]
79In the “Summary – Plaintiff’s income from personal exertion”, the plaintiff was stated to have earned $14,881 in the 2020/2021 financial year. He said, in evidence, that his earnings in that financial year were not impacted by the COVID-19 pandemic because he was classified as an essential worker. I accept that the amount he was earning at the date of the hearing was $14,881 gross per annum.
80It is also necessary to consider the plaintiff’s putative earnings from suitable employment. This requires consideration of the question whether there is any suitable employment available to the plaintiff.
81“Suitable employment” is defined in s5 of the Act and referred to in Barwon Spinners[18] and Richter v Driscoll.[19]
[18]Supra
[19]Supra
82The plaintiff was cross-examined about his current capacity to work and, in particular, whether he had ceased shearing. It was put to him that when he saw Mr O’Brien on 20 December 2021, he had told Mr O’Brien that he was unable to undertake any form of work, and that he had been forced to cease shearing due to increasing back pain, which had caused the business to lose significant work. He had also made a similar statement to Mr Radley, when he was assessed by him on 9 December 2021, and Mr Radley noted that the plaintiff had undergone a knee operation in March 2021. It was put to the plaintiff that, if his income had dropped to $14,000 per annum and he had sold most of his business, or some of it, he could continue to earn an income if he kept the business going.
83The plaintiff gave evidence that, while he has returned to work as a shearer since his injury, and the business still operates, there is now only enough work for his children to keep working.
84In re-examination, he said that he can now only work one to two days per week. The maximum number of sheep that he can shear is twenty-five to thirty sheep per run. At most, he can do two runs per day, but if he works two days per week, in those two days he can only complete a couple of runs. This equates to an ability, now, to shear a maximum or fifty to sixty sheep per week. That is all he can manage, and he does not know how long he will be able to maintain working to that extent. He also said he would rarely do up to 120 sheep a day now because the sheep are usually too big and require more shearing.
85He also explained that his back pain is now too much. It has gotten worse, and he now has “[j]ust intense pain.”[20] He was asked whether he had told his doctors about the pain. His response was that he had not, but that he has an appointment on 18 July 2022. It was put to him that he had not been able to shear, and that he had not revealed that to any of his doctors. However, the plaintiff insisted he had been transparent, and that he had been shearing, or trying to shear, since he swore his second affidavit. He said he was stopping shearing and slowing down because the back pain was too much.
[20] T48, L27-28
86Having listened to the plaintiff give his evidence, and as I have noted already, he presented as an entirely honest man. I accept his evidence that he now experiences considerable back pain. I also accept that he has had to slow down his shearing rate since his injury. At times, this probably has meant he has been unable to shear many, or perhaps even any, sheep and I am satisfied this accounts for the descriptions given to his treating medical practitioners. Notwithstanding this, I accept that shearing is the only form of employment he has ever known and that he has endeavoured to keep performing his shearing work to provide for his family and to protect the livelihoods of his children into the future. As he said, he has kept work “enough for [his] kids”.[21] The reality, now, though, is that his earning capacity is likely to either stay the same or diminish further.
[21] T51, L19-20
87In cross-examination, it was suggested to the plaintiff that he could perform various jobs including overseer, wool classer, rouse-about, shedhand and shearing teacher. The plaintiff said that the role of overseer is no longer performed. He said, “[o]verseers went out years ago”.[22] He was not qualified as a wool classer. He could not do the duties of a rouse-about, such as taking the fleece, because it required him to lift 7 kilograms off the ground, up to his chest. He said he could only do the sweeping and skirting aspects of a shedhand role. He could not teach other people to shear because it is too hands on, and he would need to be there all the time.
[22] T44, L4-5
88Mr Radley referred, in his report, to possible future occupational roles for the plaintiff as a service station attendant, speed and safety camera operator, bus driver, driving instructor, and “meals on wheels” driver. Those roles were not put to the plaintiff – even in a general sense.
89It was put to the plaintiff that he had not discussed the possibility of being retrained with his treating doctors. He agreed. When asked whether he could think of why he could not be retrained into a semi-sedentary job, or a lighter job, he said:
“I am not real good with reading and writing, I can’t sit and stand for very long, I don’t have a computer, I’ve never used a computer, I don’t have email, I don’t have any of that sort of stuff, and shearing’s all I know … .”[23]
[23] T45, L2-6
90Even if those other occupations had been put to the plaintiff, I am not satisfied that they would have been suitable for him.
91Mr Huffam, consultant orthopaedic surgeon, in his letter dated 16 November 2016, considered that, at that date, the plaintiff’s condition had not yet stabilised. He opined that it would be very surprising if the plaintiff’s condition would improve to such a degree that he would be able to return to shearing. He also expressed the opinion that, considering the plaintiff’s age, the fact he left school at the age of fifteen, had only worked as a shearer, lives in a country town and had a complex history of back injury, it would be difficult for him to obtain suitable employment, notwithstanding that he was otherwise fit and motivated. He did not consider the plaintiff was suitable for either his pre-injury employment, or that he was capable of engaging in any form of alternative suitable employment.
92Dr Kennedy, sports and spinal physician, prepared a report, dated 6 November 2018, following a clinical assessment of the plaintiff on 26 October 2018. In his report, he detailed the plaintiff’s progress history, including that he had remained off work since his injury, save for trying to do some shearing contracts with his wife, in respect of which he had been unable to attend and do the work at the shearing shed. He also noted the further CT scan and posterior facet joint injections which had not been successful. Dr Kennedy noted the plaintiff’s subsequent further review by Mr Cunningham, his treating surgeon, and the surgical posterior decompression at L4-5 and L5-S1 which had been performed, involving a bilateral inferior facetectomy, followed by a decompression and rhizolysis at both levels.
93Notwithstanding the further surgery, the plaintiff was noted to still have pain in his lower back, with an average pain level of 5-6 out of 10. With any movements or activities that loaded the lumbar spine such as bending, twisting or turning, or even putting on his shoes, the plaintiff’s pain increased to 9-10 out of 10. He was noted to be restricted in sitting and standing tolerances. He had pain in his right buttock, but no further pain down his legs. He had some numbness below his knees, but no radiation of numbness or tingling in his lower extremities.
94Dr Kennedy noted that the plaintiff had left school at the end of Year 11 and immediately went into shearing. He had no other skills, training, work experience or transferable skills. He had not done any other courses and was very limited with his computer skills. He had reasonable reading and writing skills. He lived in Hamilton and had not undergone any occupational rehabilitation or retraining since the injury. He has difficulties learning new skills and was said to lack motivation to do anything because of the ongoing problems that occur in his lumbosacral spine. He was having trouble even doing the organisational work for the shearers.
95Dr Kennedy concluded that the plaintiff continues to have significant problems with his lumbosacral spine and opined that his prognosis was poor with regard to his functional capacities and capabilities, affecting his ability to return to his pre-injury occupational duties, or any suitable employment for which he had the appropriate education, skills, training, and work experience. He also had significant restrictions in relation to domestic, social and recreational activities and pursuits. Those restrictions were considered to be long term.
96Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 20 December 2021 and prepared a report of the same date. He took a history from the plaintiff, and noted he experienced constant lower back pain, the severity of which was 4 out of 10 on a good day and 8 out of 10 on a bad day. The plaintiff stated to Mr O’Brien that his pain was aggravated with bending or attempting to lift, prolonged standing, prolonged sitting and walking, and also coughing and sneezing. His sleep was noted to be severely disturbed: Rolling over in bed aggravated the plaintiff’s pain and caused interference with his sleep. Mr O’Brien noted that the plaintiff’s leg pain had improved, but his knee remained painful, and it had caused him anxiety and depression. He also had constant lower back pain.
97The plaintiff’s lumbar flexion was 30 degrees and was limited by the complaint of significant pain and the sensation of tightness. He demonstrated no significant lumbar extension and attempting extension caused severe aggravation of back pain. Lateral flexion was 10 degrees, with 20 degrees of rotation.
98Mr O’Brien considered the plaintiff’s prognosis to be poor. In his view, the plaintiff was “most certainly incapable of returning to his pre-injury occupation as a full time shearer”.[24] He was incapable of undertaking any form of modified duties in respect of his pre-injury employment. On the basis of his current clinical signs and the nature of his long-time previous employment, Mr O’Brien considered the plaintiff was not capable of undertaking any form of suitable employment. He regarded the plaintiff as totally and permanently incapacitated.
[24] AJCB p103
99Mr Bill Radley prepared a vocational assessment report, dated 10 February 2022. In that report, Mr Radley opined that the plaintiff was then fifty-two and had a Year 10 education. He had limited literacy skills and was employed as a shearer. In Mr Radley’s opinion, the plaintiff had limited transferable work skills. His work background was in skilled non-trade occupations of a manual/practical nature at the lower end of the occupational skill range.
100Mr Radley considered that the plaintiff had no current capacity to return to his full pre-injury employment in full-time employment. He considered that he could work on limited duties one to two days per week as a shearer, and also that he had some potential for occupational retraining and employment in occupations such as a service station attendant, school bus driver, speed/safety camera operator, driving instructor or “meals on wheels” driver. He noted that the plaintiff’s skills were all of a skilled non-trade nature. He had no experience or training in unskilled, semi-skilled, skilled, para-professional or professional occupations.
101Mr Radley referred to the CSS/Vocational Assessment report prepared by WorkAble Consulting Rehabilitation, dated 10 February 2016, which had concluded that the plaintiff had a capacity for work in a number of occupations, despite their failure to find any suitable work for him.
102Mr Radley noted that the plaintiff’s psychological capacity for work and retraining would impact, and make it more difficult, for the plaintiff to retrain.
103After referring to other medical reports, Mr Radley concluded that the plaintiff was not fit, and had no work capacity, to return to his pre-injury employment, or similar employment. He considered that his injury was now stable, and it was unlikely to improve in the foreseeable future.
104The plaintiff also had no capacity to perform alternative full-time or part-time occupations given his existing work skills, training and qualifications, and his current post-injury physical limitations.
105Subject to receiving appropriate retraining, including undertaking a short computer skills course and a TAFE course to attain qualifications, occupations such as service station attendant, school bus driver, speed/safety camera operation, driving instructor and “meals on wheels” driver, were considered to be suitable for the plaintiff.
106Dr Bones examined the plaintiff on 23 March 2017 and prepared two reports, dated 30 March 2017 and 10 July 2018. In her first report, Dr Bones noted that the plaintiff had worked all his life as a shearer. She had concerns about him returning to his pre-injury employment as a shearer, because the work involved repetitive bending and stooping and handling sheep by pulling them physically onto the shearing floor and restraining them. However, she considered that he had a current work capacity, provided he avoided prolonged sitting; he had the ability to move from a sitting to a standing and walking position as required by lumbar discomfort; he avoided awkward manual handling at floor level; that the maximum weight he lifted was 10 kilograms at waist height; that he avoided machinery that jars the lumbar spine; and that he was cautious with pushing and pulling. Provided these stated limitations could be met, Dr Bones considered that the plaintiff had the capacity to work as a shearing contractor, but with no hands-on shearing; as a sales assistant of farm supplies; as a sales representative of agriculture and as a farm manager.
107In her second report, Dr Bones took an up-to-date medical history form the plaintiff and noted his limitations and tolerance, including that he could tolerate sitting to drive for 45 minutes, although it increased his lower back soreness. He had increased pain upon any pressure being placed on his lumbar spine and he was not undertaking any activities of daily living at home. Dr Bones’ opinion was that the plaintiff did not have a current work capacity for suitable employment. Dr Bones noted that the plaintiff had undergone significant surgery. The fixation and bone graft needed to heal. It was noted that any injuries while the fixation/fusion was healing would be likely to have disastrous results in the long term. Dr Bones considered that the incapacity would continue for the next six months.
108Mr Lo, neurosurgeon, examined the plaintiff on 26 August 2015 and prepared a report, dated 13 September 2015. He considered that the plaintiff was also unable to work in his pre-injury occupation as a shearer. In relation to retraining in an alternate occupation, Mr Lo considered that the plaintiff would require limitations, including no lifting, no sudden or excessive bending or twisting of the back; no prolonged sitting, standing, or being abnormally flexed; and no pulling, pushing or reaching for heavy items. Mr Lo was unable to determine the exact duration of the plaintiff’s incapacity.
109Mr Jones, orthopaedic surgeon, prepared a report, dated 22 July 2015, following an examination on 16 July 2015. He opined that the plaintiff was not able to work as a shearer.
110Dr McAllan prepared a report, dated 20 June 2022. He opined that the plaintiff had a work capacity for light or sedentary work. He considered that the plaintiff did not have a capacity for his pre-injury employment. It was noted that he worked as a shearer, which is physical work, and that there is no real opportunity for modified duties in that area of work.
111The duties which the plaintiff could perform, he considered, would be limited to very light physical work, largely involving him being able to sit or stand, and with no repetitive bending or heavy lifting. Further, the plaintiff’s ability to perform such employment would require him to be retrained, which Dr McAllan acknowledged would be difficult for the plaintiff to achieve, given his rural background and the fact that he has performed physical work all his life.
112In my view, having considered all of the evidence, the plaintiff’s education and skills are not such as to enable him to take up alternate employment. In that sense, the other occupations suggested by the defendant are not “suitable employment”.
113Mr Radley’s report notes that he would have needed to complete a TAFE industry course to gain the required qualifications.
114Having left school before completion of Year 11, there is no guarantee the plaintiff would have been capable of achieving those qualifications. I also have considerable reservations that his literacy skills would have been adequate to enable him to attain the required qualifications. Additionally, the role as a service station attendant would require considerable sitting and standing. It would also require operation of a computer. Each of the occupations as a bus driver, a driving instructor and a “meals on wheels” driver would require the plaintiff to be capable of sitting for considerable periods of time. He is incapable of this. For each of these reasons, in assessing the plaintiff’s “with injury” earning capacity in suitable employment, I have concluded that a part-time shearer’s role for one to two days per week is the only suitable employment which the plaintiff can perform.
115The Act requires an enquiry “as at that date”, being the date of the hearing of the application, as to what a worker is earning, and is capable of earning, in suitable employment. It is a prospective enquiry made on the facts as they exist at the date of the hearing. Having considered the application of s325(2)(e)(i) and (f) of the Act, and the arguments made by the defendant, and exercising my judgment, I accept that the figure of $14,881 best represents the plaintiff’s “with injury” earning capacity in suitable employment at the date of the application.
Conclusion on whether the Plaintiff has suffered a loss of earning capacity of more than 40 per cent
116Comparing the amount of $14,881 with the pre-injury earning capacity figure I have found of $88,315, it is apparent that the plaintiff’s gross earnings, at the date of the application, were considerably more than 40 per cent less than the comparative “without injury” earnings figure ꟷ the relevant forty per cent less figure being $52,989.
117Even if I had found $46,283 to be more reflective of the plaintiff’s after-injury earning capacity, comparing $46,283 to $88,315, the plaintiff’s gross earnings at the date of the application, would still have been more than 40 per cent less than the comparative “without injury” earnings figure of $88,315.
118In all the circumstances, I find that the plaintiff has sustained a loss of earning capacity of more than 40 per cent and therefore satisfies the test in s325(2)(e)(i), as measured by s325(2)(f).
Is the loss of earning capacity permanent?
119I am satisfied that the plaintiff’s loss of earning capacity is permanent. I have accepted his evidence that the most he can work is one to two days per week and that the only realistic employment he is likely to be able to work in, is shearing. It is all he has known. He has limited transferrable skills. He left school before completing Year 11 and has basic literacy skills only. His aptitude for attaining higher educational qualifications is therefore limited. He is located in a rural location, where his prospects of alternate employment are likely to be limited. In addition, he has considerable physical restrictions in what work he can do based on his current levels of pain and disability in his lumbar spine.
120In his report, dated 18 September 2017, Mr Cunningham noted that the plaintiff’s prognosis was poor and that, in his opinion, he could not return to shearing.
121Dr Kennedy, in his report dated 6 November 2018, also considered the plaintiff’s prognosis to be poor with regard to his functional capacities and capabilities affecting his ability to return to his pre-injury occupational duties, or any suitable employment. He considered that prognosis to be long term. Dr Kennedy noted that the plaintiff was motivated to remain physically active, but considered him to be totally and permanently incapacitated.
122Similarly, Mr Radley, in his report dated 10 February 2022, also considered it to be unlikely that the plaintiff’s injury would improve in the foreseeable future. He noted he had a limited aptitude and capacity for higher education, limited computer skills, lives in a rural location 300 kilometres from Melbourne, has limited general work skills, has limited aptitude for alternative sedentary work, and limited adaptation to injury and chronic pain.
123Although the plaintiff has been able to perform some work, it is unclear whether that will be able to continue. Certainly, the preponderance of the medical opinion is that the plaintiff is incapacitated permanently.
124The plaintiff stated, in his first affidavit, that he returned to work in about October 2019 against the advice of his doctors. He has been shearing all his life and has no other skills. He deposed to not being able to do an office job. While he is presently shearing, he said he did not know how long he could continue. He said that, at the end of each day, he is in severe pain. I accept these assertions.
125Given the limitations on the plaintiff’s current and future employment prospects, I have concluded that his loss of earning capacity is permanent.
Narrative test
126The plaintiff’s loss of earning capacity consequences, in my view, satisfy the narrative test. The plaintiff is no longer able to work as a shearer, other than on a very limited basis. This has detrimentally impacted his business. While the gross income of the business may have increased over time, its profitability had not, and certainly the plaintiff’s gross income from personal exertion had not. The impact on the business and on the plaintiff’s gross income from personal exertion has largely been due to the effect of the plaintiff’s injuries, which impacted the business because the plaintiff was forced to do less shearing.
127The plaintiff said, in cross-examination, he was the fastest shearer in his team, and so when he ceased to be able to perform the same volume of work, job prospects for the team as a whole reduced. His shearing team became less attractive to employers. The true cumulative loss was therefore large. In my view, the plaintiff’s loss of earning capacity consequences are, when judged in comparison with other cases in the range of possible impairments or losses of body function, “more than ‘significant or marked’ and ‘at least very considerable”. They satisfy the narrative test.
Does the Plaintiff have a capacity for suitable employment after the injury?
128In considering the application of s325(2)(e) and (f), I have already addressed the question of whether the plaintiff has a capacity for suitable employment. I have found that he does not. The only work he is able to perform is the one to two days of shearing that he is currently performing.
If the Plaintiff has a capacity for suitable employment, were the Plaintiff’s attempts to participate in rehabilitation or retraining reasonable?
129Given his level of education, age, geographical location and ongoing experience of pain as set out above, I am satisfied that the attempts the plaintiff has made to continue shearing are the best attempts he could make to participate in rehabilitation or retraining. I consider them to be reasonable.
Conclusion
130I am satisfied that the plaintiff has a pre-injury earning capacity of $14,881 and an after-injury earning capacity of $88,315. I consequently find that the plaintiff’s gross earnings at the date of the application were more than 40 per cent less than the plaintiff’s comparative “without injury” earnings figure. The plaintiff’s loss of earning capacity consequences are more than “significant” or “marked” and are “at least very considerable”. I therefore grant the plaintiff’s application for leave to commence proceedings to recover pecuniary loss damages.
131I will hear argument with respect to costs.
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