Klein-White v Victorian WorkCover Authority
[2019] VCC 1856
•22 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised |
Case No. CI-18-15324
| CHRISTOPHER DANIEL KLEIN-WHITE | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November 2019 | |
DATE OF JUDGMENT: | 22 November 2019 | |
CASE MAY BE CITED AS: | Klein-White v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1856 | |
REASONS FOR JUDGMENT
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Subject: WORKPLACE ACCIDENT
Catchwords: Serious injury application – injury to the knee – whether suffered loss of earning capacity – serious pain and suffering consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015, Jarvis v Woolworths [2012] VCC 1329, Stijepic and One Force [2009] VSCA 181
Judgment: Application granted pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013.
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| APPEARANCES: For the Plaintiff For the Defendant | Counsel | Solicitors Russel Kennedy Lawyers |
HIS HONOUR:
Christopher Klein-White really enjoyed surfing. While working as a qualified carpenter he put his foot through a void covering and fell three metres to the ground below. He badly hurt his left knee. As a result he cannot surf, skateboard or ski any longer.
While the Defendant in this case did not concede that the injury to Mr Klein-White’s knee had serious pain and suffering consequences the real debate in this case was whether or not he had suffered from a loss of 40% or more of his earning capacity. I must determine whether as at the date of the hearing Mr Klein-White has a permanent loss of earning capacity of 40%. This is not a loss of income calculation but a calculation about the loss of capacity to earn income which is productive of a financial loss of more than 40%. The compensable loss is not the loss of income but rather the loss of the capacity to earn income, in a manner productive of financial loss.[1] It is an exercise in the estimation of possibilities, not proof of probabilities.[2]
[1] Wellington Shire Council v Rosemarie Steedman [2003] VSCA 115
[2] Capper v Munday Sales Pty Ltd & Anor [2013] VCC 1015 at [148] citing fromDoes Mr Klein-White’s left knee injury result in a loss of earning capacity of 40% or more?
By reason of his age, that is being less than 26 at the date of the accident, Mr Klein-White does not have to satisfy the terms of s325(2)(f)(ii). Rather he must demonstrate that at the date of the hearing he has sustained a permanent loss of earning capacity of 40%.[3]
[3] Capper at [146]
On this issue the parties were starkly divided. Mr Storey, for the Defendant submitted that Mr Klein-White could not demonstrate such a loss of capacity. To support this contention Mr Storey identified the following factors:
(a) First, at the date of the injury, and according to the Plaintiff’s taxation summary dated 21 October 2019 which appears at the Joint Court Book 149, Mr Klein-White’s gross salary in the year of the injury was $64,828 which equates to $1,247 gross per week. 60% of that is $748 gross per week. Working from that same document the Defendant submitted that the income for the 2018/2019 years showed gross income of $42,177 which is $811 gross. Comparing those two figures it can be seen that by earning $811 gross the Plaintiff is in excess of the required 60% figure of $748 gross. The Defendant submits that the Plaintiff cannot succeed.
(b) Secondly, the Defendant argued that the Plaintiff was on the path to becoming a supervisor or builder prior to his injury. The Defendant pointed to the fact that he had done a Certificate IV in 2016 prior to the injury as evidence of the Plaintiff starting on that path. They then relied on his recent comments to Dr Horsley[4] that he saw his future as becoming a foreman/supervisor. The Defendant argued that this showed the Plaintiff was a well-motivated man who would have progressed and still has the capacity to progress and increase his earning capacity.[4] T 39
The Plaintiff submitted that the approach of the Defendant was wrong. He argued that the correct approach was to apply a common-law assessment to the Plaintiff’s earning capacity as at the date of trial and determine if there had been a loss of 40% or more of his capacity – rather than his actual income at that date. The Plaintiff argued this was in line with numerous decisions of this court being, Mert v Lawrence [5] and Jarvis v Woolworths. [6] Having looked at those cases I am of the view that I should follow that logic and apply the approach the Plaintiff asserts is the correct one.
[5] [2016] VSC 348
[6] [2016] VCC 1415
Having made that finding I consider that Mr Klein-White, as of the date of trial has permanently lost earning capacity of more than 40%. I make that finding for the following reasons. First the Plaintiff’s injury is a long term one. The evidence is that the Plaintiff has had a severe injury to the knee.[7] He has ongoing pain, swelling tenderness and laxity in the knee. [8] That injury will have long term physical consequences. Such consequences are that he is at risk of developing post traumatic arthritis[9] but more significantly that he will have to decrease his hours in the future if he continues to work a physical job and is restricted in what he can do at work.[10] The Plaintiff’s evidence is that he currently works “on the tools” and that even if he was to become a foreman or supervisor he would probably have to do even more physical work.[11] When looked at in the context of the evidence that his current work causes significant problems [12] it can be seen that he struggles to cope with full time hours, is reluctant to take up overtime and would not be trusted by an employer to perform additional hours.[13] This seems on balance what his future holds given the medical prognosis for the knee.
[7] Dr Lording at PCB 99
[8] Mr Wilde at 145
[9] Horsley describes the risk as “significant risk of an acceleration of the degenerative[10] Mr Lording at PCB 99, Love at PCB 138, Wilde at PCB 143, 144, Horsley PCB 133
[11] Transcript (“T”) 15
[12] PCB 152, PCB 21
[13] Atkinson
While the Defendant pointed to invoices in 9 and 10 as showing the Plaintiff working in excess of normal 40 hours per week I consider this to be an anomaly[14]. Further it was a relatively isolated incidence in over 2 years of work. The Plaintiff explained that Invoice 44 included time spent on the Queenscliff Sorrento ferry hauling rubbish and was not reflective of 10 hours of “on the tools work” per day. Invoices 7 and 8, 36 and 37 are consistent with his evidence of 8 hours work per day. [15]
[14] T 54
[15] T 30
While it is true that Plaintiff is working at a rate of $50 per hour now I find that this substantially underrepresents the Plaintiff’s but for injury earning capacity for the following reasons:
(a) First the Plaintiff deposed at PCB 26 that similar workers to himself earn at least $65 per hour[16] and up to $70 per hour. This is supported by Mr Atkinson’s evidence. [17] It is unlikely the Plaintiff will be able to increase his hourly rate given his work restrictions and his slow pace of work. This is supported by his evidence at [22-26] of his second affidavit.[18]
(b) Second the Plaintiff cannot work overtime as he would have if not for his injury.[19] While the amount of overtime is uncertain on the state of the evidence it can be assumed that it was more than nominal for a young, enterprising man who had achieved trade qualifications and expressed a desire to improve himself. Given the Plaintiffs work ethic and the evidence of the availability of overtime work I find that the Plaintiff has lost the capacity to regularly perform overtime. Necessarily this involves the assessment of hypotheticals which is required in such a case. [20] I find that the Plaintiff has lost roughly 4-8 hours of overtime per weekend which would have come with an overtime allowance. I find this would have meant a hourly rate in excess of $40 per hour on weekends.
Assuming then 6 hours overtime per week at a modest rate of $75 this is 40 hours times $65 –2600 plus six hours at $90 per hour (being time and a half) = $570. This equates to some $3170 per week. It is to be remembered that the Court must form a discretionary judgment by reference to not wholly determinate criteria.[21](c) Third the Plaintiff’s ability to advance in the industry is hampered by his leg injury. He gave evidence that he always saw himself on the tools and perhaps advancing to a position where he obtained a builders licence (residential) or as a foreman. The evidence was that these positions still required a significant amount of work “on the tools”. [22] Further it stands to reason, as Mr Tobin SC put it, that the Plaintiff is now not in a position to impress his employers with his capacity for work, his speed of work, or his capacity to work in a restricted fashion: in short he has limited prospects to advance.
[16] PCB 26
[17] PCB 153
[18] PCB 25
[19] [20] of the second affidavit at PCB 25
[20] Malec at pg. 643 as cited in Wellington Shire Council v Steedman [2003] VSCA 115 at [46]
[21] Jarvis
[22] T 15
I was not assisted by the Plaintiff’s reference to the Flexi Personnel report of Ms Meilake. While it dealt with award rates for carpenters such as the Plaintiff it did not deal with his particular circumstance as a residential builder with aspirations in that field, rather than on commercial sites where the award/EBA rate and conditions were enforced.
10.Nevertheless in combination the restriction on the Plaintiff’s hourly earning rate, the curtailment of his ability to work overtime and his now limited prospects to advance in his chosen profession lead me to find that he has sustained a loss of more than 40%.
11.I accept that the Plaintiff’s condition is a permanent one, given the evidence of Mr Lording, Mr Wilde and Mr Love as to the likely future course for his injured left knee which is most likely of long term deterioration. It follows that his loss of earning capacity is similarly a permanent one.
12.Given this finding it is not strictly necessary to consider the issue of whether Mr Klein-White has a serious injury by reason of the pain and suffering consequences I have considered that issue also.[23]
[23] Humphries v Poljak [1992] 2 VR 129
As a result of the left knee injury does Mr Klein-White have serious pain and suffering consequences?
13.For the reasons which follow I find that Mr Klein-White has suffered an injury to his left knee which has serious pain and suffering consequences.
(a) First he suffered a serious structural injury to his knee on 3 March 2016 when he fell 3 m from the scaffold. The fall itself was from a considerable height. He was initially assessed at the Sandringham Hospital and managed in a Zimmer splint. He had a very large effusion and was referred to the Alfred Hospital outpatient clinic. Upon consultation with Mr Lording, orthopaedic surgeon, he noted severely restricted range of motion, a medial collateral ligament injury, a torn posterior cruciate ligament and a torn medial cruciate ligament. These represent very significant structural damages to his left knee.
(b) Secondly surgery was performed on 22 March 2016 which required quadricep tendon harvest first prior to repair of the posterior cruciate ligament, as well as open medial collateral ligament repair. Surgical hardware was left in situ to hold the repair in place. This is a significant surgery to be performed. He had a period of about a month where he was in a brace performing physiotherapy. He became weight-bearing in June 2016 but was still complaining of episodes of his knee giving way. He did not work at all during this time.
(c) Third through this period of time he was having extensive physiotherapy and was also on numerous medications both for swelling and also pain relief.[24]
[24] JCB 136
(d) Fourth the pain around the site of the posterior cruciate ligament continued for over a year such as to indicate problems with the fixation device. It appears that bone had grown around the fixation device and surgery was required to remove what Mr Lording termed “exuberant bone formation’ on 24 August 2017. That was his last surgery.
14.The pain has continued to be present. He gave evidence [25] that he takes Mobic around three days in a week, always on working days and especially after he’s had a big day at work. He takes Panadeine Forte almost every day one in the morning and one at lunch and Panadol Osteo at a similar rate. He deposed that there are 2 to 3 days in a week where he doesn’t have to take any medications, normally this being on weekends when he can rest up. He describes his pain as being 1 to 2/10 normally but can often get to 7/10. He states that during the course of the week at work he struggles and finds that he becomes more tired and sore as the week progresses. The medication regime that he is on, and has been for several years, is quite considerable.
[25] PCB 18 Mr Klein-Whites’ first affidavit at paragraph 24
15.In the course of giving evidence it was put to him that his pain is very manageable and quite minimal.[26] The Plaintiff disagreed with this. Having watched the Plaintiff closely in the course of giving his evidence and being tested repeatedly I formed the view that he was a forthright, honest and stoic individual. He answered questions as best he good could, made concessions where appropriate and at times even gave evidence which could be considered against his interest-where he conceded that he had tried surfing on numerous occasions[27].
[26] T 43
[27] PCB 123, T 57
16.While the Plaintiff has returned to work this does not militate against a finding that he has sustained a serious injury.[28] In fact the affidavit of Mr Atkinson speaks of the difficulties that the Plaintiff has in performing ordinary everyday tasks of his chosen profession. This is uncontroverted evidence from an independent party, being his former employer. I find this evidence very useful in determining that Mr Klein-White has persevered despite very significant injuries. This is to his credit and ought not be held against him.
[28] Stijepic and One Force [2009] VSCA 181
17.It is undoubted that Mr Klein-White has lost his major recreational and social pursuits of surfing, skateboarding and snowboarding. He did these things with his partner and his friends. The Plaintiff gave emotional evidence about his passion for surfing. He gave evidence that prior to his injury he would often surf nearly every morning before work and often after work as well. That was one of the benefits of living where he did. He gave evidence that this was a social pastime that he would do with his friends. His evidence now is that going to the beach is almost meaningless for him because he can’t pursue his real love of surfing. While he admitted to swimming and body surfing he was clear that this did not replicate his love of surfing. To be deprived of a major social and recreational pursuit from such a young age is a telling blow to Mr Klein-White’s enjoyment of life. Pursuits such as snowboarding and skateboarding are also deprived to him. He has lost his ability to run his dogs with his partner. These things also represent significant impacts for a young previously fit man. When coupled with the impact of his injury on his ability to work and advancing his career I find that the Plaintiff has suffered pain and suffering consequences which could be considered more than marked and certainly very significant.
18.I will grant the Plaintiff leave to proceed under both heads.
Judge Brookes in Jarvis v Woolworths [2012] VCC 1329
process at PCB 133
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