Lesthuruge v Hannanprint Victoria Pty Ltd
[2016] VCC 1241
•26 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-04447
| WASANTHA LESTHURUGE | Plaintiff |
| v | |
| HANNANPRINT VICTORIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 August 2016 | |
DATE OF JUDGMENT: | 26 August 2016 | |
CASE MAY BE CITED AS: | Lesthuruge v Hannanprint Victoria Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1241 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right elbow – pain and suffering – loss of earning capacity – bindery assistant – frequent bending of the elbow – repetitive manual work
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton QC with Mr C Hangay | Zaparas Lawyers |
| For the Defendant | Mr P Jens QC with Ms F Crock | Wisewould Mahony |
HER HONOUR:
Preliminary
1 The plaintiff was employed by the defendant as a bindery assistant. He claims to have suffered injury to his right elbow as a consequence of rapid and repeated handling of stacks of paper during the course of his employment, in particular, over the course of three consecutive shifts in February 2013.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”). The application is made under sub-section (a) of the definition contained in s134AB(37) of the Act and the plaintiff seeks leave to claim damages for pain and suffering and loss of earning capacity. Although the serious injury application was also originally lodged in respect of a psychiatric injury under s134AB(37)(c), this was abandoned at the conclusion of the hearing.
3 Mr J Gorton QC of counsel appeared with Mr C Hangay for the plaintiff and Mr P Jens QC of counsel appeared with Ms F Crock for the defendant.
4 The body function said to be lost or impaired is the functioning of the plaintiff’s right arm.
5 Only the plaintiff was called to give evidence and was cross-examined. Numerous medical reports and other documents were also tendered in evidence. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this Judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions referred to in this Judgment.
Relevant background
6 The plaintiff is 59 years of age. He lives with his wife, his 25 year old daughter and his 14 year old son.
7 The plaintiff was born in Sri Lanka. He completed secondary school, before undertaking a five year course of study in the electrical trades. The plaintiff then worked as an inspector for the Sri Lankan Transport Board and as an Electrical Foreman.
8 The plaintiff migrated to Australia in 1991.[1] Upon arrival, he worked for several manufacturing companies. In 2005, the plaintiff commenced employment with the defendant through a labour hire agency, before gaining direct employment in August 2007.
[1]Plaintiff’s Court Book (“PCB”) 12
9 The plaintiff had previously suffered left shoulder pain and numbness in 1999. He claimed this injury developed over the course of his employment at Yarra Textiles. The plaintiff subsequently underwent an ultrasound, two injections and an arthroscopic procedure performed by orthopaedic surgeon, Mr Simon Bell, in September 2001.[2]
[2]PCB 13
10 The plaintiff continued to have occasional pain in his left shoulder, for which he took approximately 10 tablets of Nurofen and Panadol each week.[3] Despite the occasional pain, however, the plaintiff returned to full-time work on unrestricted duties.
[3]PCB 13
11 In 2002, the plaintiff developed right elbow pain whilst working as a machine operator at Nylex. He did not have any surgical treatment for this condition. After 12 months of physiotherapy and modified duties, the pain resolved.[4]
[4]PCB 13
12 The plaintiff has also suffered other health conditions, including high cholesterol and high blood pressure. In late April 2014, the plaintiff experienced chest pains and suffered a minor heart attack. He was taken to Monash Hospital, where he remained for several days.
13 Prior to suffering his injury the subject of this claim, the plaintiff enjoyed playing cricket with his son, sharing domestic responsibilities with his wife, tending to repairs around the home, and cooking a few times a week.[5]
[5]PCB 20, PCB 26 and PCB 27
The injury and its consequences
14 The plaintiff was employed by the defendant as a bindery assistant, and worked three, 12 hour overnight shifts a week. At times, the plaintiff was also asked to assist with the M600 machine in the press room, which he said was especially difficult.[6] The plaintiff claimed that he was required to perform frequent and repetitive, bending, lifting and handling of bundles of papers, all of which involved the frequent use of his elbows. The plaintiff claimed that he suffered pain in his right elbow, following three consecutive shifts, on the dates up to and including 8 February 2013. He then took four days off work.
[6]PCB 16
15 On 13 February 2013, the plaintiff returned to work and was asked by his supervisor to assist with the M600 machine in the press room. During this shift, the plaintiff’s right elbow pain returned. However, he managed to complete his shift.
16 On 14 February 2013, the plaintiff’s supervisor again requested that he work on the M600 machine. The plaintiff explained that he had experienced pain in his right elbow while working on the M600 machine. He then completed an injury report form and was sent home.
17 On 15 February 2013, the plaintiff consulted his general practitioner, Dr Pubudu Weeratunga. Dr Weeratunga provided the plaintiff with a certificate of capacity, and recommended that he not undertake any duties involving repetitive movements of the wrist or elbow, and that he not lift weights heavier than five kilograms with his right arm.[7]
[7]PCB 16 and Exhibit F - Progress notes from the Park Avenue Medical Centre in respect of the plaintiff
18 On 19 February 2013, the plaintiff was referred to physiotherapist, Mr Sharadha Weerasing. The plaintiff was treated with ultrasound therapy and was given home exercises to perform.
19 The plaintiff then returned to work on light duties, based on the restrictions given by Dr Weeratunga.
20 The plaintiff said that these light duties were not a genuine alternative job, but were light tasks performed by people with injuries.[8]
[8]Transcript (“T”) 87, Line(s) (“L”) 26-29
21 The plaintiff continued on light duties until 13 March 2013, at which time he was made redundant. The plaintiff said that other uninjured staff members were also retrenched at this time, whilst others remained employed.[9]
[9]T86, L3-31, T87, L1
22 On 5 March 2013, the plaintiff was referred for an ultrasound, which showed a right common extensor tendonopathy and a small tear.[10]
[10]PCB 100
23 The plaintiff agreed, that after he ceased working and was not regularly using his elbow, his condition improved, such that he no longer required pain medication on a regular basis.[11]
[11]Defendant’s Court Book (“DCB”) 66
24 On 27 July 2013, the plaintiff consulted orthopaedic surgeon, Mr Patrick Byrne. Mr Byrne recommended that the plaintiff wear an elbow brace and continue conservative treatment.
25 On 18 November 2013, the plaintiff underwent an ultrasound guided Cortisone injection into his right elbow.[12]
[12]PCB 50
26 In his report dated 30 October 2014, Mr Byrne referred to his most recent consultation with the plaintiff on 20 August 2013, and noted that symptomatically the plaintiff was much better with the use of an elbow brace and physiotherapy. He further noted the plaintiff was able to fully extend his right elbow. At that time, Mr Byrne considered the plaintiff’s prognosis for a full recovery was excellent.[13]
[13]PCB 67
27 Following his retrenchment, the plaintiff applied for many positions, including as a labourer, process worker and machine operator.[14] He was successful in obtaining a role as a process worker, but was able to last only one day as the pain in his right elbow was too much.[15]
[14]T88, L28-31
[15]T89, L6-11
28 In early January 2016, the plaintiff commenced working as a courier driver. He obtained this role through a friend, who was contracted by BMW to deliver spare parts to dealerships in Glen Waverley, Doncaster and Geelong. In his most recent affidavit, sworn on 5 July 2016, the plaintiff stated that he usually worked three days a week, for a period of around three and a half hours per day.[16] He said that he occasionally worked five days a week.[17]
[16]PCB 25
[17]PCB 25
29 The plaintiff said that he is able to cope with such work, as he is only required to carry small, light boxes.[18] He said that if the boxes are too heavy, he can ask people at the dealership to assist him. The plaintiff said that he is required to drive a manual van to complete the deliveries, and that this causes him pain. He said, however, that he is able to rest his right arm on the door of the van.
[18]PCB 25
30 The plaintiff wears an elbow brace whilst at work.[19]
[19]Exhibit F - Progress notes from the Park Avenue Medical Centre in respect of the Plaintiff, page 26
31 Since commencing in this role, the plaintiff has suffered an increase in pain in his right elbow, which, he believes is caused in part by the prolonged driving. As such, he consulted Dr Weeratunga and obtained prescriptions for Panadeine Forte on 14 January 2016, 15 April 2016, 19 June 2016 and 7 August 2016.
32 On 5 May 2016, the plaintiff underwent a further right elbow ultrasound. It demonstrated common extensor origin tendinosis, in keeping with moderate tennis elbow.[20]
[20]PCB 101
33 Dr Weeratunga has recommended that the plaintiff have a further injection into his right elbow, in the hope it will provide some pain relief. While approval for this procedure has been sought from the WorkCover insurer, a response has not yet been received.[21]
[21]PCB 24
Medico-legal evidence
34 The plaintiff’s solicitors arranged for the plaintiff to be examined by vascular and general surgeon, Mr Charles Flanc, in November 2014. Mr Flanc noted, that at that time, the plaintiff was still receiving physiotherapy, but that his pain was mild. Mr Flanc noted that the plaintiff would suffer pain if he lifted something heavy, and that he would wear an elbow guard if he intended to do heavier activities at home. Upon examination, Mr Flanc noted a full range of motion in the plaintiff’s elbow, and no deformity or wasting of the forearm muscles. Mr Flanc was of the opinion that the plaintiff was unfit for his pre-injury duties. He considered the plaintiff had a theoretical capacity for suitable light duties, provided they did not involve forceful and heavy lifting and, in particular, did not involve lifting of more than five kilograms.[22]
[22]PCB 80
35 The plaintiff’s solicitors also arranged for the plaintiff to be examined by occupational physician, Dr David Eaton, in October 2015. Upon examination, Dr Eaton noted significant wasting of the right arm muscles, which he considered consistent with prolonged disuse.[23] Dr Eaton considered the plaintiff’s condition was consistent with medial and lateral epicondylitis. Dr Eaton was of the opinion that the plaintiff was unfit for his pre-injury employment. He also considered that the plaintiff was unfit for any alternative duties, given the disability in his right arm, together with his age, education, training, skills and vocational experience in Australia.[24]
[23]PCB 90
[24]PCB 93
36 Dr Eaton considered the plaintiff unsuitable to perform the vocations of hopper filler, machine operator, packer, bus driver, light assembly worker, courier driver and quality controller, on the basis they all involved physical activities incompatible with the plaintiff’s right elbow injury.[25]
[25]PCB 95
37 Dr Eaton was subsequently advised of the plaintiff’s current work as a courier. He considered that if the plaintiff was required to perform tasks involving the frequent lifting of items of more than two kilograms, that he would be unable to do such work.[26]
[26]PCB 96.3
38 The defendant arranged for the plaintiff to be examined by occupational physician, Dr Gary Davison, in June 2013. Dr Davison took a history from the plaintiff, that at that time, he had made a good recovery and had not experienced any acute pain for about six weeks. Dr Davison noted that the plaintiff reported his right elbow as “good” and that he was not taking any medication or undergoing any specific exercises.[27] This history was put to the plaintiff in cross-examination. He denied that he would have described his right elbow as good, but believed he would have said “generally it was okay”.[28]
[27]DCB 38
[28]T20, L8-10
39 The defendant arranged for the plaintiff to be examined by rheumatologist, Professor Geoffrey Littlejohn in June 2015 and May 2016. In his most recent report, Professor Littlejohn obtained a history from the plaintiff that his right elbow symptoms would come and go. He noted that the symptoms were worse in cold weather, or when the plaintiff engaged in repetitive activity or excessive lifting. At that time, Professor Littlejohn obtained a history from the plaintiff that he was not working. I will return to this later in my Judgment.
40 Professor Littlejohn considered the plaintiff suffered ongoing right elbow dysfunction, which he considered a consequence of an incompletely resolved medial and lateral epicondylitis.[29]
[29]DCB 19
41 The defendant also arranged for the plaintiff to be examined by occupational physician, Dr Michael Baynes, in September 2015 and June 2016. In his most recent report, dated 1 June 2016, Dr Baynes obtained a history from the plaintiff that there had been no change in his condition over the last 12 months. He noted that various activities had increased the plaintiff’s right elbow pain, including driving, gripping and picking things up.[30] Dr Baynes obtained a history from the plaintiff that he was working as a courier driver. I will return to this later in my Judgment.
[30]DCB 2
42 Dr Baynes considered the plaintiff was suffering from chronic right lateral epicondylitis with ongoing symptoms, with a recent ultrasound confirming common extensor origin tendinosis.[31]
[31]DCB 3
The plaintiff’s credibility
43 The plaintiff’s credit was directly in issue in this case. Mr Jens spent a considerable time cross-examining the plaintiff on a range of matters, but notably in relation to the plaintiff’s current work as a courier driver.
44 The defendant showed video footage of the plaintiff working as a courier driver on 19 and 20 January 2016, 2 and 3 March 2016, and 9 and 10 May 2016. Most days, the plaintiff left home at approximately 7.50am and drove to the BMW headquarters in Mulgrave. He then entered at approximately 8.30am, at which time his van was loaded with the items he was required to take to the two BMW dealerships. He usually left the Mulgrave premises at about 9.30am and drove a few minutes to the nearby Glen Waverley dealership. The plaintiff would then unload items, some of which were heavy. The plaintiff generally used his left arm to carry these items and, at times, other people can be seen helping him to unpack the items from the van.
45 The plaintiff then drove to the Doncaster BMW dealership, which took approximately 20 minutes, depending upon the traffic. The plaintiff would unload further items, before driving back to the BMW headquarters in Mulgrave. The plaintiff would then wait between one, to one and a half hours, before his van was again loaded up. The loading process appeared to take approximately one hour. On some occasions, the video surveillance ended at this point. However, on several days the plaintiff was filmed driving to a BMW dealership in Geelong.
46 In cross-examination, the plaintiff said the drive to Geelong could take him anywhere between one hour and ten minutes, to two hours. Once he had unloaded the items in Geelong, the plaintiff would then drive home. He said the drive home could take him up to two and a half hours.[32] He was seen arriving home on several days between 4.00pm and 4.30pm.
[32]T79, L25-26
47 In his affidavit, the plaintiff said he worked around three and a half hours per day. He told Dr Baynes he worked two to three hours per day. When asked to explain the difference between those times, and the video footage, the plaintiff said that he did not consider the waiting time, the loading time or the return drive from a delivery, to be working hours. The plaintiff said he was only paid to deliver the items. In stating that he worked only two to three hours a day, the plaintiff was calculating only the driving time to the relevant dealership.
48 I do not accept this to be a genuine explanation. The plaintiff was away from his home for eight hours a day. It appeared disingenuous to me, that the plaintiff would not include waiting time, loading time and return driving time in his working day.
49 I also have concerns as to the number of days the plaintiff is actually working. As noted, the plaintiff stated in his affidavit that he worked three days per week, and he told Dr Baynes that he worked two to three days per week. In cross-examination, however, when asked about the most recent work he had undertaken, the plaintiff referred to working five days a week.[33] He then said that last week, he had “done only four days.”[34] I am satisfied that the number of days and hours the plaintiff is currently working, exceeds that stated in his affidavit.
[33]T58, L25-27
[34]T58, L29
50 Further, I consider there to be uncertainty as to the amount the plaintiff is actually paid for the courier work he performs. The plaintiff said he was paid $100 a day for this delivery work. He then said that he gets approximately $300 a week, after diesel costs are deducted.[35]
[35]T60, L8-12
51 Pursuant to a Notice to Produce, the plaintiff provided some financial statements he had forwarded to Taj Service, listing days worked and monies paid between January 2016 and 30 June 2016.[36] These records indicate, that at no stage throughout this period, was the plaintiff paid exactly $100. The plaintiff sought to explain this inconsistency, by stating that his fuel and food costs were deducted from his pay. If I accept the plaintiff’s evidence that the petrol expenses were deducted each day, it seems incongruous that the plaintiff would maintain he was paid $100 a day. Further, I cannot reconcile how, if the plaintiff was paid for his food, that it would be a deduction and not an addition to his pay.
[36]Exhibit 3 – Plaintiff’s schedule of days worked and monies claims to TAJ service covering period 11 January 2016 until 1 July 2016
52 Further, the amounts received by the plaintiff, varied between $160 and $385 per week. Only in May 2016, was he paid exactly $300 each week.[37]
[37]Exhibit 3
53 The plaintiff was asked why these financial statements did not refer to work performed on 20 January 2016, when video footage obtained from this day, shows the plaintiff driving from his home to the Mulgrave warehouse and on to the Glen Waverley, Doncaster, and Geelong dealerships, between the hours of 7.48am and 4.22pm. The plaintiff could not explain this, and instead suggested that the investigator may have changed the dates of the video footage.[38]
[38]T57, L12-13
54 It was requested of the plaintiff on the first day of the hearing, that he bring to court any additional paperwork, invoices and diaries, evidencing the courier work he had undertaken. When asked about any statements for the current financial year, the plaintiff indicated that he had completed a financial statement for the month of July, but not yet for August.[39]
[39]T59, L12-19
55 On the second day of the hearing, however, the plaintiff did not produce any additional documents. He said at this time that he had no statements for the current financial year.[40]
[40]T70, L26-29
56 The plaintiff also gave evidence that his earnings were paid in part into his bank account and in part in cash. However, the plaintiff did not explain how he reconciled such payments, nor did he explain what portion of his earnings were paid in cash. I consider this to be an example of the evasive and non-responsive manner in which the plaintiff, at times, gave his evidence.
57 The plaintiff was examined by Professor Littlejohn in May 2016. Professor Littlejohn obtained a history that the plaintiff had been unable to return to viable employment and that he remained off work. He also obtained a history from the plaintiff that he could drive an automatic car for up to 45 minutes.
58 The plaintiff denied that Professor Littlejohn asked whether he was working, and stated that this was the reason he did not detail his current work situation to him. However, during the extensive cross-examination regarding his consultation with Professor Littlejohn, the plaintiff answered at one stage, “maybe the doctor would have had a problem.”[41] The plaintiff did not explain what he meant by this comment.
[41]T24, L27-29
59 I do not accept the plaintiff’s evidence that Professor Littlejohn did not ask if he was working. Such an oversight seems highly improbable, given Professor Littlejohn expressly stated in his report that the plaintiff had been unsuccessful in finding suitable employment and that he remained off work. I cannot accept that Professor Littlejohn would have overlooked asking such a question.
60 Further, Professor Littlejohn’s record that the plaintiff could drive an automatic car for up to 45 minutes is inconsistent with the more extensive driving the plaintiff was then doing as a courier, including the lengthy drive to and from Geelong.
61 The plaintiff was cross-examined as to the circumstances in which he came to tell Dr Baynes that he was working. Following his examination by Professor Littlejohn, the plaintiff said he had been told it was important that he tell the next examining doctor, Dr Baynes, about the work he was currently undertaking. The plaintiff was initially reluctant to disclose who had told him this, and said he could not remember.[42] However, in cross-examination, he later admitted that it had been his lawyer. I consider this further demonstrates the evasiveness of the plaintiff as a witness.
[42]T26, L19-20
62 If each of these matters detailed above were considered separately, they would not, in my view, be sufficient to tarnish the plaintiff’s credibility. However, when considered collectively, they give me cause to have significant reservations as to the plaintiff’s reliability as a witness. In these circumstances, I have only accepted his evidence where he gave concessions against his interest, or where his evidence was corroborated by objective evidence or contemporaneous documents.
63 I consider the following to be objective evidence of the plaintiff’s ongoing injury and impairment:
· complaints by the plaintiff to Dr Weeratunga about increased pain when driving, since January 2016;
· regular scripts for Panadeine Forte since January 2016;
· video footage showing the plaintiff predominantly using his left hand and arm. This was most evident on 11 June 2015. The plaintiff was seen handling wheelie bins on five occasions, and used his left arm each time. On two occasions, he carried shopping bags, both times with his left hand. I note that the plaintiff is right hand dominant. The plaintiff did not appear to be aware he was being filmed. I consider this footage is entirely consistent with the plaintiff’s evidence that he avoids the use of his right arm, as certain activities aggravate his right elbow injury.
Permanent
64 In order to satisfy the definition of serious injury, the plaintiff must prove that the injury and its consequences are both serious and permanent.
65 It is to be considered a permanent injury if “it will probably persist and there will be no significant improvement over time.”[43]
[43]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, [19]
66 I am satisfied the plaintiff suffers epicondylitis in his right elbow. Further, I am satisfied that this injury and the consequences which flow from it are permanent. The pain has persisted for over three years. There is no recommendation that he undergo surgery. An injection has been recommended, but it is not likely to result in a significant improvement in the plaintiff’s condition.
Loss of earning capacity
67 To succeed in his application, the plaintiff has the onus of satisfying me that as at the date of hearing, he has sustained a loss of earning capacity of 40 per cent or more and that he will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In making this assessment, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
68 The definition is an objective test which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether the work is a reasonable distance from the plaintiff’s place of residence.[44]
[44]Barwon Spinners Pty Ltd & Ors v Podolak at [25] and [28]
69 In undertaking this task, I must compare what the plaintiff is currently earning, or capable of earning in suitable employment, with his pre-injury earning capacity. To determine his pre-injury earning capacity, I must decide which of the following scenarios most fairly reflects the plaintiff’s earning capacity, had he not suffered the injury:
“(a) the gross income that the plaintiff earned (or was capable of earning) from personal exertion in the three years before the injury;
(b) the gross income the worker would have earned (or was capable of earning) from personal exertion in the three years after the injury, if the injury did not occur.”[45]
[45]s134AB(38)(f)
70 In the financial year prior to suffering his right elbow injury, the plaintiff earned $96,951. The plaintiff submitted, in accordance with expected annual wage increases, and pursuant to the defendant’s enterprise agreements, that his without injury earning capacity should be as follows:
· Financial year ending 30 June 2013: $100,455
· Financial year ending 30 June 2014: $101,962
· Financial year ending 30 June 2015: $103,492[46]
[46]PCB 98
71 The defendant accepted the amount the plaintiff had been paid in the year prior to his injury,[47] and did not challenge the projected increases, based upon the defendant’s enterprise agreements.
[47]T9, L12-15
72 I consider that a projected increase in income for the three years after the date of injury, based upon the defendant’s actual enterprise agreements, is realistic, and that it most fairly reflects the plaintiff’s without injury earning capacity.
73 In accepting the sum of $103,492 as the plaintiff’s pre-injury earning capacity, the average wage is therefore $1,990.23 gross per week. Applying the statutory test, I must be satisfied the plaintiff is incapable of earning no more than $1,194.13 a week, and that such a restriction on his earning capacity will be permanent.
74 All the doctors agree that the plaintiff cannot return to his pre-injury work. Further, they accept there is an organic condition. This is supported by the recent ultrasound. Based upon the objective evidence detailed above, I am satisfied the plaintiff continues to suffer impairment in his right elbow. The concerns I have as to the plaintiff’s credibility are not sufficient to vitiate these medical opinions.
75 As such, the issue for me to determine is what the plaintiff is capable of earning in suitable employment.
76 It is clear the plaintiff has the capacity to work as a courier driver and I am satisfied that this is suitable employment. While I accept that he suffers increased elbow pain from prolonged driving, he is able to cope by resting his arm on the window ledge, wearing an elbow brace, and taking Panadeine Forte. I am satisfied that the plaintiff could do this work up to eight hours a day, five days a week.
77 On the plaintiff’s evidence, he is paid $100 per day, and is capable of earning $500 per week in accordance with his current work arrangements. However, given the uncertainty surrounding his actual weekly income, I prefer to rely upon the award rate, referred to in the earnings report prepared by Flexi Personnel. It stated that a permanent full-time courier would be paid $18.77 gross per hour. On the assumption that the plaintiff could work up to 38 hours per week, I consider him capable of earning $713.26 gross per week.
78 The defendant submitted the plaintiff would be capable of running his own courier business as an owner operator. Mr Jens submitted that there was a vacuum in the evidence, as no details were provided as to the income likely to be earned in such an enterprise.
79 The plaintiff is a relatively simple man, who has worked only in manual jobs since arriving in Australia. Although he speaks some English, it is at a basic level that I consider would be insufficient for him to manage his own business. I further note that the plaintiff required the assistance of his 14-year-old son in preparing the financial statements for the courier work he currently undertakes. For these reasons, I do not consider there to be any realistic prospect that the plaintiff could run his own courier business.
80 The Flexi Personnel report details jobs for which the plaintiff might be suited, and the accompanying earnings. This includes $20.20 per hour for a bus driver and $19.66 per hour for a quality controller. Even if the plaintiff was capable of performing each of these roles on a full-time basis, he would not earn in excess of $1,194.13 per week.
81 In these circumstance, I am not satisfied the plaintiff has a capacity for suitable employment such that he would earn in excess of $1,194.13 per week. I am satisfied that this is the plaintiff’s position now, and that this incapacity will remain for the future. Accordingly, the plaintiff has suffered the requisite loss of 40 per cent.
82Once the threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences for the plaintiff meet the “very considerable” test.[48] Given my acceptance that the plaintiff’s elbow injury restricts him from returning to his highly remunerative pre-injury employment, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
[48]s134AB(38)(c)
83As the plaintiff has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his elbow injury, it is not necessary for me to consider separately his pain and suffering consequence.[49]
[49]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
Orders
84I am satisfied that the plaintiff suffers a serious injury to his right elbow as a consequence of his employment with the defendant, and the consequences are such that he should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
85I will make the consequent orders.
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