Longden v Tonna Heating and Cooling Pty Ltd
[2022] VCC 1658
•13 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-01003
| JACOB LONGDEN | Plaintiff |
| v | |
| TONNA HEATING AND COOLING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 26 September 2022 | |
DATE OF JUDGMENT: | 13 October 2022 | |
CASE MAY BE CITED AS: | Longden v Tonna Heating and Cooling Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1658 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – lower back injury – whether the consequences of the lower back injury had resolved – plaintiff under twenty-six years of age – determination of loss of earning capacity consequences in accordance with the common law test of loss of earning capacity – whether the plaintiff is incapable of working as a fly-in-fly-out worker in arduous physical work – calculation of the measure of the loss of earning capacity – finding of loss of earning capacity not necessitating separate finding relevant to pain and suffering consequences – creditworthiness and reliability
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:New South Wales v Moss (2000) 54 NSWLR 356; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Altona Bus Lines v Lococo [2002] VSCA 159; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC with Mr M Garnham | Shine Lawyers |
| For the Defendant | Ms R Annesley KC with Ms M Cameron | Russell Kennedy |
HIS HONOUR:
Introduction
1The plaintiff, Mr Jacob Longden, is a thirty-year-old man who suffered an injury in the course of his employment with the defendant, Tonna Heating and Cooling Pty Ltd. On 25 January 2011, the plaintiff suffered a lower back injury when he carried two heavy heating units up an extension ladder, where they were to be installed in the roof of a new home. At the time he was injured, he was partway through an apprenticeship with the defendant.
2The plaintiff submitted that he has suffered a permanent serious impairment or loss of the bodily function of his lower back, resulting in pain and suffering and loss of earning capacity consequences which meet the statutory threshold. The defendant submitted that there are many reasons why the plaintiff’s application should fail.
3Mr Ingram appeared with Mr Garnham of counsel for the plaintiff. Ms Annesley appeared with Ms Cameron for the defendant.
The issues
4The plaintiff submitted that his case is very straightforward. He submitted that he suffered a lower back injury on 25 January 2011, verifiable through the medical evidence, which has resulted in pain and suffering and loss of earning capacity consequences. He submitted that, because he was under twenty-six years of age at the time of the incident, the test relevant to loss of earning capacity consequences is to be determined by the application of common law principles. Despite being able to work since he suffered the lower back injury, and in what appears to be tolerably arduous work, his condition has deteriorated to such an extent, that he is now reduced to work which has resulted in him earning significantly less than he could earn, if he were able to exploit his income-earning potential.
5The defendant submitted that the plaintiff’s case is not as easy as contended for by the plaintiff. It submitted that there is a serious issue relevant to the plaintiff’s creditworthiness and reliability, which infects many aspects of the plaintiff’s evidence on serious issues. It submitted that the plaintiff has otherwise recovered from the initial injury, demonstrated by his capacity to work and to engage in social, domestic and recreational pursuits. It submitted that it was unlikely the plaintiff had an income-earning capacity much beyond the work he has performed in the past, and is performing now.
The Plaintiff commences employment with the Defendant
6The plaintiff commenced a plumbing apprenticeship with GJ Bradding Heating and Cooling (“Bradding”). It was about eight or nine months into his apprenticeship when he fell into dispute with Bradding, which resulted in him leaving his employment and then commencing employment with the defendant as an apprentice.
The incident causing injury
7On 25 January 2011, the plaintiff was required to install two heating units in the roof of a new home. He estimates that the heating units weighed about 70 kilograms and measured approximately 1 metre long, 800 millimetres in height and 500 millimetres in width. There were no stairs available for him to access the roof of the new home. He had to use an extension ladder to carry each of the units up into the roof space.[1]
[1] Plaintiff's Court Book ("PCB") 6
The Plaintiff’s medical treatment
8After ceasing work that day, he experienced stiffness in his lower back. The following morning, he experienced soreness, and then increasing lower back pain and left leg pain. The plaintiff saw Dr Marcus Watson, general practitioner of the Station Medical Centre, on 31 January 2011. He noted that the plaintiff experienced lower back pain on the previous Wednesday after lifting heaters into a roof at work on the previous Tuesday. He prescribed the plaintiff Diazepam and Feldene.[2] Under cross-examination, the plaintiff repeatedly said that he was prescribed medication at various times, but refused to use it because it caused him vomiting and nausea. Dr Watson also provided him with a medical certificate, presumably relevant to his capacity for work.
[2] Defendant's Court Book ("DCB") 267
9The plaintiff subsequently saw Dr Watson on three occasions in February 2011. He prescribed him Tramadol and OxyContin. On 21 March 2011, he referred the plaintiff to have a CT scan. The CT scan was taken on 30 March 2011. The radiologist concluded that it demonstrated a small central disc protrusion at L4-5, resulting in mild central canal stenosis without evidence of nerve root compression.[3] Dr Watson reviewed the plaintiff on 31 March 2011. He agreed with the radiologist that the CT scan showed “some disc pathology”.[4] The plaintiff subsequently attended the Station Medical Centre on a further three occasions for medical treatment for his lower back. The clinical notes reveal that he was prescribed pain-relieving medication on each of those occasions.
[3]PCB 31. The extracts of the clinical notes of the Station Street Medical Centre are reproduced at DCB 260-290
[4] PCB 269
10The next occasion that the plaintiff attended the Station Medical Centre was when he saw Dr Watson on 11 April 2013, complaining of lower back pain. His clinical note reveals that the plaintiff told him that he had back pain due to lifting an outdoor air-conditioning unit onto a roof two days previously, and that he suffered an aggravation of his lower back due to crawling under a floor. The plaintiff subsequently attended the Station Medical Centre on one further occasion. He was prescribed Diazepam, Mobilis and OxyContin on those two occasions.[5]
[5] DCB 273-274
11There is then an appreciable gap in the plaintiff’s medical treatment by the doctors at the Station Medical Centre. He next attended on 22 March 2017, complaining of one day of lower back pain, with intermittent pain in both legs. He saw Dr Harish Sood, general practitioner. The clinical note reveals that he was tender over the L4-5 region, and that he had suffered an exacerbation of the disc. He was prescribed Palexia and referred to have a CT scan. Dr Sood reviewed the plaintiff on 28 March 2017. He discussed the CT scan results and advised the plaintiff to see an osteopath. He also prescribed him Palexia.[6]
[6] DCB 277-278
12The plaintiff said that he had a couple of physiotherapy sessions in 2014. He had osteopathic treatment on a couple of occasions in 2016.[7] Under cross-examination, the plaintiff said he could not remember whether he was having any particular treatment by 2017.[8] According to the clinical notes of the Station Medical Centre, it does not appear he was having any active treatment of a medical, paramedical or pharmaceutical nature. The plaintiff recommenced chiropractic treatment in 2018. He attended a chiropractor at Bacchus Natural Health. The clinical notes of that clinic show that the plaintiff had chiropractic treatment on 30 April 2018; 7, 14 and 28 May 2018; 8 February 2019, and 1 March 2021.[9]
[7] PCB 8
[8] Transcript (“T”) 102
[9] PCB 97-112
13The next occasion that the plaintiff attended the Station Medical Centre was when he saw Dr Doug Spence, general practitioner, on 6 June 2018. The clinical note reveals that he had suffered a flare up in his lower back pain “again”, that it was recurrent lower back pain since “W/C accident” when the plaintiff was seventeen years of age, and that the plaintiff was experiencing left leg radiculopathy. The plaintiff was then referred to Mr David Oehme, neurosurgeon. He was also prescribed Mobic and OxyContin.
14The plaintiff saw Mr Oehme on 20 July 2018. He presented with three weeks of severe left leg sciatica and back pain. Mr Oehme noted that the plaintiff had experienced intermittent lower back pain over previous years.[10] He referred him to have an MRI scan, which was taken on 22 July 2018.[11] He reviewed the plaintiff on 25 July 2018. He considered that the MRI scan demonstrated mild disc degeneration at L3-4 and L4-5, without neural compression or disc prolapse. He noted that the plaintiff had experienced intermittent lower back pain over the previous eight years. After discussing treatment options with him, he referred him to a pain specialist.[12]
[10] PCB 36
[11] PCB 33
[12] PCB 37
15According to the clinical notes of the Station Medical Clinic, there is then a gap in the plaintiff’s treatment, until he returned on 11 May 2020 complaining of lower back pain, and subsequent entries in the clinical notes demonstrate that he complained of significant lower back pain, general interference with his functioning, and his capacity to work. Part of the reason for the gap may be that he came under the care of Mr Oehme in 2018, and then later there were COVID-19 restrictions which, the plaintiff says, prevented him from acting on a referral back to Mr Oehme.[13]
[13] PCB 8
16I propose to set out the subsequent occasions when the plaintiff attended the clinic:
· 11 May 2020 ꟷ the plaintiff suffered a flare up of lower back pain after moving house over the previous weekend. He was stiff and restricted in movements. He was prescribed Diazepam, Mobic and Tramadol. Dr Watson noted that the plaintiff was unable to tolerate OxyContin because it made him sick.
· 19 September 2020 ꟷ the plaintiff complained of lower back pain. He discussed treatment options, including injections.
· 24 September 2020 ꟷ the plaintiff was referred to Mr Oehme, and was prescribed Mobic.
· 25 February 2021 ꟷ the plaintiff complained of lower back pain. The note is very cryptic. He woke with soreness, and some twisting was apparently involved. He was prescribed Mobic, Tramadol and Diazepam.
· 1 March 2021 ꟷ the plaintiff complained of lower back pain. It was noted that his back pain had improved, that he was back at work, and that he was advised to have physiotherapy.
· 2 March 2021 ꟷ the plaintiff complained of lower back pain. The clinical note is reasonably extensive. It discloses that the plaintiff complained of lower back pain which was 8/10 in severity, and was constant; that he could barely walk, but was still working; that the pain had been on and off for the past ten years; that even when he changed to an office job, he still had exacerbations; and he was keen to resume a WorkCover claim. He was prescribed Diazepam.
· 15 March 2021 ꟷ the plaintiff complained of lower back pain. The clinical note contains a letter of referral, which is of some importance, because it discloses Dr Watson’s opinion that the plaintiff suffered a severe lower back strain from heavy work in February 2011; that he experienced intermittent symptoms to varying degrees over subsequent years; that he tried to change jobs to something less physical; that lately he had suffered a bad flare up and was keen to pursue treatment under WorkCover; and that Dr Watson felt the plaintiff’s lower back pain was related to an aggravation of the initial injury from which the plaintiff had not recovered.
· 20 March 2021 ꟷ the plaintiff complained of lower back pain, which was variable and often intrusive. The clinical note refers to the plaintiff having difficulty lifting his nine-month-old child. He was prescribed Tramadol.
· 29 March 2021 ꟷ the plaintiff complained of lower back pain, which was ongoing and restrictive. The clinical note refers to the plaintiff having improved, but still being unable to return to normal duties at work.
· 22 April 2021 ꟷ the plaintiff complained of lower back pain, which was poorly controlled. He was prescribed Mobic and Prednisolone.
· 6 May 2021 ꟷ the plaintiff complained of lower back pain, which was severe and radiating into both legs, and was aggravated by any movement. He was prescribed Diazepam and Targin.
· 18 June 2021 ꟷ the plaintiff complained of lower back pain. The clinical note reveals that he had been referred to have an MRI scan, which was taken on 10 June 2021.[14] The radiologist reported that it demonstrated a non-compressive disc protrusion at L3-4 and L4-5. The plaintiff was referred to have that MRI scan by Dr Jitesh Sikka, general practitioner of the Resolve Medical Centre. I will refer to the clinical notes of that medical centre next.
[14] PCB 34-35.
17The plaintiff also attended the Resolve Medical Centre on a handful of occasions for treatment for his lower back:[15]
· 8 June 2021 ꟷ the plaintiff complained of chronic lumbar back pain. The clinical note reveals that he had no radicular symptoms at that time. He was referred to have the MRI scan, which was taken on 10 June 2021.
· 16 June 2021 ꟷ the appearances on the MRI scan were explained to the plaintiff, and he was given a copy of the radiologist’s report.
[15] The extracts of the clinical notes of the Resolve Medical Centre are reproduced at DCB 257-259
18The clinical notes of both the Station Medical Clinic and the Resolve Medical Centre, reproduced in the Defendant’s Court Book, relevant to treatment of the plaintiff for his lower back injury, cease on the last dates which I have referred to in the summary of the clinical notes. That is not because the plaintiff ceased having medical treatment, but because that is the extent of the notes which were either subpoenaed, or the subject of the defendant’s extraction from notes sufficient to demonstrate the plaintiff’s treatment by general practitioners, and matters on which it relied to submit that there are issues which work against the plaintiff succeeding in this application.
19There are inevitable gaps in the plaintiff’s treatment which are filled, to some extent, by the reports of his treating medical practitioners. I now propose to turn to their reports.
The treating medical practitioners
20Dr Watson was the first medical practitioner consulted by the plaintiff following what occurred on 25 January 2011 and, indeed, he first saw the plaintiff on 31 January 2011. He provided a report dated 6 May 2022, in which he summarised the treatment he provided the plaintiff.[16] The background to the observations made by Dr Watson in that report are the clinical notes of the Station Medical Centre. He understood the complaints made by the plaintiff of the occurrence of the lower back injury, and the treatment afforded to the plaintiff through the Station Medical Centre. His understanding of the plaintiff’s history becomes important in the context of the opinion expressed by Dr Graeme Brazenor, neurosurgeon, on the question of causation, and contribution of a number of events to his ultimate diagnosis.
[16] PCB 42-43
21Dr Watson referred to the first occasion he saw the plaintiff, and the plaintiff’s history of lifting heaters into a roof. He then referred to the CT scan taken on 30 March 2011, concluding that the plaintiff had suffered an L4-5 disc prolapse. He considered that the plaintiff’s prognosis for what he described as “such a nasty injury”[17] would be for a worsening of his lower back condition, due to accelerated degeneration caused by the lower back injury. He briefly referred to the treatment provided to the plaintiff, and then considered that the plaintiff would experience variable lower back pain, which would impact on his capacity to engage in work of a physical nature, sporting pursuits and maintenance work around his home. He considered that those restrictions would be lifelong. He also considered that the plaintiff may need to do Pilates, swimming, hydrotherapy and physiotherapy, receive steroid injections, and maybe have surgery in the future.
[17]PCB 42
22Mr Oehme knew less of the history of the plaintiff’s treatment than Dr Watson, however, I think he knew enough to make the opinions expressed in his report dated 8 April 2022 persuasive.[18] He referred to the occasions when he examined the plaintiff, what he made of the relevant radiology obtained around the time when he examined him, and his treatment recommendations. He diagnosed that the plaintiff had suffered a musculoskeletal back strain in the setting of mild degenerative disc disease at L3-4 and L4-5. He considered what occurred on 25 January 2011 to cause those degenerative changes to become symptomatic.
[18] PCB 38-41
23Mr Oehme considered that the plaintiff’s prognosis was poor. He considered that, on the history he obtained from the plaintiff that he had suffered chronic lower back pain since January 2011, that the pain had been slowly deteriorating, and that the plaintiff would likely have a degree of lower back pain for the duration of his life. He considered that there were permanent restrictions which were relevant to impose upon the plaintiff. He considered that the plaintiff could no longer play sports, for example, football or running, nor perform vigorous activity, because of the risk of exacerbating his lower back injury. He noted that the plaintiff would have difficulty performing household chores involving heavy lifting or manual labouring, which would include lawnmowing. He noted that the plaintiff was no longer able to work in a job involving manual labour, and, at the time when he last saw him, he noted that the plaintiff was looking for a sales job which did not involve heavy lifting or manual labour.
The medico-legal assessors
24I will firstly refer to the medico-legal examinations undertaken by the plaintiff. The first of those was undertaken by Professor Paul D’Urso, neurosurgeon. He examined the plaintiff on 7 October 2021, and provided a report dated 8 October 2021,[19] and he re-examined the plaintiff in June/July 2022, and provided a report dated 1 July 2022.[20] On the first occasion that he examined the plaintiff, he was provided with the relevant radiology, reports of Mr Oehme, and the clinical notes of the Station Medical Clinic up to 18 August 2021.
[19] PCB 44-48
[20] PCB 49-52
25Professor D’ Urso obtained a reasonable history from the plaintiff, in addition to the history inherent in the radiology, medical reports and clinical notes I have just referred to. He considered that the work the plaintiff performed on 25 January 2011 contributed to the disruption of the L4-5 intervertebral disc, resulting in its prolapse. He added that, subsequently, the plaintiff developed recurrent prolapse of the intervertebral disc and degenerative progression of the L3-4 and L4-5 intervertebral discs. He considered that the sequelae of what occurred on 25 January 2011 developed into progressive disc prolapse and degenerative changes, particularly at the L4-5 motion segment and, to a lesser extent, at the L3-4 level, and that the foregoing was a significant contributing factor to his current presentation. He added that, once an intervertebral disc is injured, it is more likely than not to deteriorate and become prone to recurrent prolapse or rupture.
26Professor D’ Urso considered that permanent restrictions should be placed upon the plaintiff’s physical capacity. He recommended that the plaintiff avoid repetitive bending, twisting or lifting activity, and more particularly, no lifting below the knee or above the shoulder; avoidance of lifting weights in excess of 10-15 kilograms, and the capacity to walk freely, and avoid sitting, standing or walking postures in excess of one hour at a time; and avoidance of climbing on steps or ladders, or working in confined spaces. He added that the restrictions which he considered were relevant would restrict the plaintiff in engaging in vigorous recreational sporting activities, and arduous domestic cleaning or gardening activities.
27Professor D’Urso then expressed an opinion which is relevant to an opinion expressed by Dr Brazenor on the question of causation, and contribution of a number of events to his ultimate diagnosis. He considered that, because of the likely deterioration in the plaintiff’s lower back, the plaintiff would be at risk of rupturing the intervertebral discs, recurrent prolapse and nerve root compression, although he acknowledged that, whether these events will occur, is difficult to determine and predict. However, he considered he would, nonetheless, be prone to re-injury and degenerative progression, which might well lead to the need for further investigation, management of the plaintiff’s lower back condition and possibly surgery. When Professor D’Urso next examined the plaintiff, he was provided with the reports of Dr Watson and Dr Brazenor. He did not alter his opinion in any material way from that expressed in his first report. He repeated his opinion that the plaintiff would be restricted in employment, defining it by saying that the plaintiff had a permanent incapacity of a partial nature.
28Dr Joseph Slesenger, specialist occupational physician, examined the plaintiff on 18 August 2022, and provided a report dated 25 August 2022.[21] He was provided with very much the same documents as was Professor D’Urso, including both of Professor D’Urso’s reports. He obtained a reasonable history from the plaintiff, in addition to the history inherent in the radiology, medical reports, and the clinical notes I referred to earlier. He undertook a substantial review of the radiology and the opinions of Mr Oehme, Professor D’Urso and Dr Brazenor.
[21] PCB 53-65
29Dr Slesenger diagnosed a soft-tissue injury, an aggravation of degenerative disease, and chronic lower back pain, without radiating features or radiculopathy. He considered that the plaintiff’s prognosis was poor, given the length of time over which the plaintiff had been troubled by the lower back injury and its disabling consequences. He considered that the plaintiff would continue to suffer that level of impairment regardless of treatment.
30Dr Slesenger considered that permanent restrictions should be placed upon the plaintiff’s physical capacity. He considered that the plaintiff should not engage in pushing, pulling, carrying or lifting weights over 10 kilograms on an occasional basis, and 5 kilograms on a repetitive basis; avoid repetitive bending and twisting; avoid prolonged static postures; and avoid exposure to whole-body vibration. He considered that the plaintiff had a capacity to work within those restrictions. He advised the plaintiff against returning to sporting activities, such as football and playing golf and, otherwise, if he were to engage in recreational pursuits, he should seek the advice of an exercise physiologist.
31Dr Brazenor was engaged by the defendant to examine a significant body of the plaintiff’s first affidavit, affirmed 19 November 2021; claim documents; pleadings; radiology; medical reports and clinical notes, and then to answer a series of questions asked of him by the defendant. He provided a report dated 14 February 2022.[22] He expended a significant effort in summarising the documents just referred to. There are two conclusions he arrived at which are critically important to central issues which fall for my determination. The first is Dr Brazenor’s opinion on causation. He said:
“From my study of [the plaintiff’s] scans, I have formed the view that injuries to the L4/5 disc have been the main cause of his fluctuating levels of back and leg pain over the years 2011 – 2021. Changes at L3/4 over those years have sometimes been described in radiological reports as protrusions, but my study of that disc in the images which I have been able to retrieve convinces me that it shows changes of degeneration rather than injury.
The L4/5 disc has suffered a number of injuries and some healing periods over the ten years 2011 – 2021.”[23]
[22] DCB 37-83
[23]DCB 50
32Dr Brazenor then expressed a more particular opinion relevant to causation:
“The incontrovertible injuries, judged from the clinical and radiological records, are two:
(i)The mild injury sustained, on the balance of probabilities, on 25 January 2011, with the small central protrusion undergoing partial healing by the time of the next scan on 23 March 2017.
(ii)A major injury sustained in the period between scans dated 23 July 2018 and 28 January 2020, which has c.75% healed by the time of the last scan so far, on 10 June 2021.
…
I have therefore formed the view that [the plaintiff’s] primary injury to the L4/5 disc was sustained on 25 January 2011 whilst in the employ of Tonna Heating and Cooling Pty Ltd , with partial healing of that disc by the time of his next scan on 23 March 2017. However a new injury occurred between the dates of the scan performed 23 July 2018 and the next one dated 28 January 2020. There were two factors which led to this second injury:
(i)The primary tear of the posterior annulus of the disc on 25 January 2011, and
(ii)The continued bending, lifting and carrying duties in the multiple employment roles [the plaintiff] fulfilled in the years after he left Tonna.”[24]
[24]DCB 50-51
33Dr Brazenor’s reference to the new injury appears to be related to one of the questions asked of him by the defendant about whether incidents in April 2013, February 2019 and February 2021, contributed to the lower back injury which he diagnosed. I can only assume that the defendant provided Dr Brazenor with a letter of instruction referring to those three incidents, however, Dr Brazenor did not answer the question by reference to each of the incidents, but did so in a general way, by saying that the contribution “has been fully explained in the foregoing”,[25] the “foregoing” being what I have quoted from his report.
[25]DCB 52
34Dr Brazenor referred to, what he described as, an integration of the documented chronological history of symptoms. He referred to the plaintiff seeing Dr Watson on 11 April 2013. The corresponding clinical note discloses that the plaintiff complained of suffering lower back pain since lifting an outdoor air-conditioning unit onto a roof. Next, he referred to the plaintiff seeing Dr Sood on 22 March 2017. The corresponding clinical note discloses that the plaintiff complained of one day of lower back pain with intermittent pain in both of his legs. Next, he referred to consultations between 2018 and 2019 in the clinical notes of Bacchus Natural Health, and one consultation recorded in the clinical notes of the Station Medical Centre, which must be when the plaintiff saw Dr Spence on 6 June 2018, complaining of a flare up of lower back pain and left leg radiculopathy. Next, he referred to multiple consultations up to 18 June 2021 recorded in the clinical notes of the Station Medical Centre, which I summarised in some detail above. I assume, in the absence of any other direct reference by Dr Brazenor, that the so-called incidents referred to in the question put to Dr Brazenor, were what he identified in that part of his report.
35The question raised by the opinions, principally of Professor D’Urso and Dr Brazenor, are whether the injury the plaintiff suffered on 25 January 2011 is responsible for his current symptoms and level of disablement, or whether there are other incidents which also contribute. I will return to this later in these reasons.
The Plaintiff’s work history
36The plaintiff was absent from his work with the defendant for about two-and-a-half months. He returned to work on 11 April 2011. Dr Watson certified the plaintiff as fit for normal duties from that date.[26]
[26] DCB 19 and T27
37The plaintiff and his brother were both working for the defendant. They were performing weekend work. They fell into some level of argument as between themselves, which came to the attention of the defendant in some way. The defendant accused the plaintiff and his brother of stealing materials. The plaintiff maintained that the materials he and his brother took was scrap. The defendant had CCTV footage of the plaintiff and/or his brother removing those materials. Although the plaintiff denied that he stole materials, it was this incident that brought his employment with the defendant to an end.[27]
[27] T19-20
38The plaintiff subsequently worked with the following employers:
· Middleton’s Geelong Heating and Cooling Pty Ltd (“Middleton’s”) for about four months.[28]
[28] PCB 6 and T41
· Superior Heating & Cooling Pty Ltd (“Superior”) from January 2012 to November 2013. The plaintiff was transferred from Middleton’s to Superior.[29]
· Frazer Air from 26 November 2013 to April 2014. The plaintiff left Superior because he was offered a job by Frazer Air. He was employed as a leading hand.[30]
· Tomballe Insulation for about two months in 2014.[31]
· Nu-Gen Industries Pty Ltd from 26 March 2015 for about six months.[32]
· Ridge Bay Holdings Pty Ltd (“Ridge Bay”), as a fly-in-fly-out worker at Karratha in Western Australia, from 20 September 2015. The plaintiff suffered an injury to his left knee within about three weeks of commencing that employment. He was treated in Perth, and then it would appear he was put on light duties doing stocktake work in Perth. He ceased that employment on 23 October 2015.[33]
· Right Climate Pty Ltd briefly for an unstated period of time.[34]
· Dogan Group Pty Ltd (trading as Lakes Heating and Cooling) (“Dogan”) for about eighteen months. Part of the relationship he had with Dogan was as a subcontractor for about six months, performing two or three days work per week, before working for it “directly”, which I assume means as an employee.[35] It would appear that he worked for Dogan in 2016.
· OzWide Air, which is a business the plaintiff set up. It would appear the plaintiff operated that business from about late 2016 into the early part of 2018. He said he did not do a lot of work during this period due to his lower back injury. He received Centrelink, and moneys earned through doing cash jobs.[36] The plaintiff was referred to his taxation returns, which the defendant submitted, demonstrating that he did more work than he was prepared to admit to. For the financial year ending 30 June 2018, the relevant taxation return discloses that his business earned $189,920 gross, with claimed gross deductions of $147,046. The plaintiff’s explanation was that he employed subcontractors to do work for him. The business ceased operating in February 2019.[37]
· Online Air & Solar for about three to four months, doing administrative work to about mid-2019. The plaintiff’s duties were largely administrative, which required him to sit for extended periods of time, as well as operating a forklift.[38]
· McQueen Group Pty Ltd (“McQueen”) from about July 2019 to about April 2022. The plaintiff’s duties were predominantly installing residential heating and cooling, but also involved general plumbing work.[39] Under cross-examination, the plaintiff admitted that, in his employment with McQueen, he performed some work in confined spaces, lifting weights ranging from 10 to 40 kilograms, and using ladders.[40] He did that work despite informing McQueen of the restrictions imposed on him by Mr Oehme.[41]
[29] PCB 6 and T41-42
[30] PCB 7 and T43-44
[31] T45
[32] PCB 7 and T46
[33] T55-56
[34] PCB 7
[35] PCB 7 and T58-59
[36] T59-62
[37] T59-64
[38] PCB 7 and T65-67
[39] PCB 7 and T68-71
[40] T70-71
[41] T71
39The plaintiff’s first affidavit does not describe the work he performed from 2011 and up to the present time in much detail. The summary I have endeavoured to piece together was partly derived from the plaintiff’s affidavits and various documents in the Court Books, but mostly from the cross-examination of the plaintiff on his working history. The period between July 2014 and April 2015, as an example, is a period when the plaintiff was not working. Under cross-examination, he said that he was having difficulty finding employment, and one of the difficulties was his lower back injury and presumably the difficulties it was causing him.[42] There are other periods when the plaintiff was not working, but that fact is not material to the purpose in summarising the plaintiff’s work history. Both the plaintiff and the defendant relied upon the working history for their own purposes ꟷ the plaintiff to say that his working history shows a downturn in his capacity to work in his chosen field, and the defendant to say that it demonstrates that the plaintiff did not have a lower back injury with consequences which interfered much with his capacity to work in, what must have been, tolerably arduous work, and whether he would have taken up work as a fly-in-fly-out worker.
[42] T44-45
40The plaintiff commenced working with ExtrordinAir, at Airport West, in sales, and as a business development manager, in about May 2022. It carries on a heating and cooling business. The plaintiff is paid a retainer, and can earn commission or a bonus of between 1 to 5 per cent if he meets targeted sales. Under cross-examination, he estimated that the sales he had achieved in the month preceding the date of hearing was $80,000 and in the month before that, about $40,000. He expected to be paid a bonus at the end of the financial year.[43] The plaintiff’s taxation return for the year ending 30 June 2022 discloses a gross income of $86,158, of which $83,332 was earned from personal exertion in his employment with ExtrordinAir.[44]
[43] PCB 13 and transcript 73-75
[44] DCB 208-211
41The plaintiff described the work he currently performs with ExtrordinAir as having an absence of physical work. He occasionally uses a ladder to enter a roof space, and I assume that is to meet the requirements of his sales work. He drives his car as part of the requirements in his sales work. He estimates that, if he drives for more than forty-five minutes, he will suffer an increase in lower back pain, often requiring him to stop and stretch his lower back.[45]
[45] PCB 13
Fly-in-fly-out work
42The plaintiff based the claim that his loss of earning capacity consequences meet the statutory threshold on his aspiration to undertake fly-in-fly-out work, which would have earned him a very considerable gross income. He said that there are several impediments to him now undertaking that work, all due to his lower back injury. The first is the pain that he anticipates he will suffer in his lower back when engaged in long aeroplane flights, and the second is the heavy nature of the work that he would be obliged to perform, which he says he is no longer capable of performing.[46]
[46] PCB 10-11
43The plaintiff’s father, Mr Sean Longden, affirmed an affidavit on 13 September 2022,[47] in which he described having been a fly-in-fly-out worker for most of his life. He currently lives in Queensland. He is sixty years of age. The plaintiff’s brother, Mr Christopher Longden, affirmed an affidavit on 14 September 2022,[48] in which he described currently being a fly-in-fly-out worker working on an oil and gas plant on Curtis Island in Queensland. Later evidence revealed that it was for a company known as Bellis Constructions, or for an entity known as APLNG.[49] He is not trade certified, which I presume means he does not have trade qualifications of any kind. His particular work experience is in the construction industry. He has performed work as a fly-in-fly-out worker since 2014. He has earned up to $240,000 gross per annum. He said that, because the plaintiff has a trade qualification, he would be classed as trade certified, which would entitle him to a higher hourly rate than he is earning.
[47] PCB 16-18
[48] PCB 19-21
[49] T47-49
44The plaintiff and his brother both applied for work as fly-in-fly-out workers on Curtis Island. His brother obtained employment, but the plaintiff did not. Under cross-examination, the plaintiff said that he applied for work on Curtis Island in about February 2015. When asked whether he applied for a fly-in-fly-out job with his brother in 2014, the plaintiff said he was not sure that it was in 2014, but said that he and his brother did apply for a job together.[50]
[50] T46-47
45The plaintiff did obtain work as a fly-in-fly-out worker with Ridge Bay as a lagger. It involved measuring and cutting lengths of insulation which was wrapped around pipes and then taped. It involved some work in confined spaces. Under cross- examination, he said he loved the work and was capable of doing it.[51] He said that he did not suffer a lower back injury in doing that work, but, as I have already summarised above, he suffered an injury to his left knee, which is the reason why he ceased working for Ridge Bay.
[51] T52-53
The relevant legal principles
46I think it is appropriate to deal with the relevant legal issues now, before turning to the issues which the defendant submitted seriously undermine the plaintiff’s case.
47The parties agreed that, at the time when the plaintiff suffered an injury he was under twenty-six years of age, and therefore s325 (2) (e) (ii) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) applies. The test relevant to loss of earning capacity is a different test than the one which applies to a worker who is over twenty-six years of age, governed by ss(2)(e)(i), (2)(f)(i) and (ii) of the Act. The test is whether the plaintiff will, after the date of the decision, or of the hearing, continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
48The parties agreed that the observations of Heydon JA in New South Wales v Moss[52] correctly states the common law test. His Honour observed that compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of financial loss. He added that loss of earning capacity is not dependent on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in the estimation of possibilities, not the proof of probabilities.[53]
[52] (2000) 54 NSWLR 536 at 553
[53]Heydon JA also referred to the oft quoted passages from Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, and a number of other authorities, relevant to the reasoning in determining the possibility or probability of the occurrence of future events. I was also referred to a number of judgements of judges of this court who applied the same reasoning. I do not think it necessary to refer to those judgements in the circumstances where there is no controversy between the parties as to the common law test to be applied in assessing loss of earning capacity.
The Defendant’s attack
49The defendant submitted that the plaintiff is neither a creditworthy, nor reliable, witness. The defendant provided me with thirty-four pages of written submissions (“the written submissions”), which drilled down into the evidence in granular detail, addressing every issue which the defendant considered undermined the plaintiff’s case. The defendant is to be commended for the industry shown in the preparation of the written submissions, however I do not propose to address each and every one of the issues raised, because many of them will be addressed in the conclusions, which I will set out below, but there are issues of significance which I propose to deal with in the order raised by the defendant in its written submissions.
No constant lower back pain
50The first submission is that I should not accept the plaintiff’s evidence that he has suffered constant pain in his lower back since 25 January 2011. I do not accept that submission. I will return to that when I deal with the conclusions set out below. In making that submission, the defendant referred to the complaints made by the plaintiff of lower back pain to medical and paramedical practitioners, which it derived from the clinical notes referred to in the Court Books, and also from the cross-examination of the plaintiff.[54]
[54]Pages 2-9 of the written submissions. My summary of the same evidence is in more general terms and found at paragraphs 2-18 above, and is a summary of the same evidence
51The defendant submitted that there is a lack of complaint by the plaintiff of his lower back injury, which militates against a finding that he was telling the truth when he described having constant lower back pain since 2011. Secondly, when the plaintiff was pressed, under cross-examination, to identify the treatment he had which is not referred to in the tendered evidence, he failed to do so, resulting in the defendant submitting that the plaintiff was not telling the truth, because that evidence probably does not exist.
A false résumé
52Next, the defendant submitted that the plaintiff failed to be truthful in a number of other respects. The defendant submitted that the plaintiff did not tell the truth regarding his experience as a lagger, and in insulation work on a résumé, in his attempt to obtain fly-in-fly-out work. The plaintiff prepared a résumé, on which he was cross-examined at length.[55] He prepared it for the consumption of prospective employers in his attempt to obtain fly-in-fly-out work.[56] In summary, the relevant evidence that arises from the cross-examination of the plaintiff on his résumé is as follows:
· He admitted that the résumé referred to his experience in doing insulation work when that was not true.[57]
· He did not refer to his work with Bradding because of the problems he had with Bradding. He conceded, however, that it was important to refer to the work he did in his apprenticeship, and with whom.[58]
· He admitted that, where the résumé referred to work between 2009-2011 as a lagging labourer with Western Sheet Metal at the Origin Gas Plant at Port Campbell, that was not true.[59]
· He did not refer to the employers with whom he undertook his apprenticeship.[60]
· He did not refer to the fact that he worked with the defendant for two years. It was at this point that he was cross-examined about the allegation that he and his brother had stolen materials from the defendant.[61]
[55] DCB 146-149
[56] T16
[57] T16
[58] T16
[59] T17-18
[60] T18
[61] T18-20
A false reference
53Furthermore, the plaintiff engaged a recruitment firm by the name of “capepeople”. It completed a check of a referee named Mr Wayne Hodges, who was a supervisor with Western Sheet Metal. The reference was entirely false. Mr Hodges told the interviewer that the plaintiff had worked for five months in construction work with Western Sheet Metal, and that he was the plaintiff’s supervisor. He described the plaintiff’s work as a lagger performing insulation work on pipework and ductwork. He otherwise described the plaintiff as a capable worker.[62]
[62] DCB 249
54Under cross-examination, the plaintiff sought to describe the reference as, not being one suggesting that he had ever worked for Western Sheet Metal, but describing the plaintiff’s work in general. Otherwise, the plaintiff said that he was not aware of the reference provided by Mr Hodges. I do not accept the plaintiff’s evidence. Someone must have nominated Mr Hodges as a referee. It could only have been the plaintiff. I think he asked Mr Hodges to misrepresent his experience because he wanted to improve his chances of obtaining fly-in-fly-out work as a lagger.
A false medical examination
55Next, the plaintiff underwent a medical examination on 14 September 2015 applying for the job with Ridge Bay as a lagger. The medical examination was recorded on a form. Part of the form which the plaintiff was required to complete comprised a question about whether he had ever, or was currently suffering from, any of the medical conditions referred to under that question. In answer to Question 5, he denied suffering anxiety and/or depression, and/or any stress reaction. In answer to Question 7, he denied having any back or sciatic pain, or lower back injury. In answer to Question 9, he denied suffering any broken or fractured bones.
56I should pause here to refer to some of the earlier evidence given by the plaintiff under cross-examination, that he had suffered from mental health issues, for example, in June 2011,[63] and in around September 2013.[64] Additionally, the plaintiff suffered fractures to his right hand when he struck a tree with his hand,[65] and he admitted that he had suffered multiple fractures during his life, but there is no evidence when he suffered the fractures and to which bony structures.[66] The purpose of the cross-examination was to demonstrate that the disclosures by the plaintiff, when he was medically examined, were false, and designed to enhance his chances of obtaining fly-in-fly-out work as a lagger. His prospects of obtaining that work were very likely to be improved if he was not vulnerable to suffering a recurrence of pre-existing medical conditions.
[63] T31-36
[64] T84-85
[65] T27-28
[66] T52
Loss of function and film
57Next, under cross-examination, the plaintiff was asked to demonstrate what movements he was capable of performing, in particular, he was asked to bend while in the witness box. He bent forward about 30 degrees from upright. He twisted from side to side of about a quarter of a turn.[67] The demonstration was followed by cross-examination testing the plaintiff’s evidence of his capacity to undertake physical activities ꟷ rolling out of bed, getting up out of a chair, sitting for prolonged periods of time, driving for prolonged periods of time, difficulty getting dressed, caring for his children when he has access to them, engaging in recreational activities with his children and cooking, cleaning, washing, camping, and engaging in gym work. The plaintiff said that he had difficulty engaging in all of these activities to varying degrees due to his lower back injury.[68]
[67] T126
[68] T126-134
58It was at this juncture in the cross-examination that the plaintiff was shown film taken on 5 February 2022. The film commenced at 10.00am. He was shown wearing work clothes in the vicinity of a truck. He climbed a ladder fixed to the rear of the truck and then appeared to manipulate ropes to tie down ladders on the roof racks fitted to the truck. He then moved to the passenger side of the truck and climbed onto something so that his upper trunk was above the roof of the truck, and then he appeared to manipulate ropes again, to tie down the same ladders. These movements appeared to be accompanied by some stretching forward and reaching. These tasks then concluded at about 10.14am. At about 10.34am, the plaintiff was observed driving the truck. He reversed it into a building. He was later seen driving the truck at about 10.41am and, then, from about 10.56am, he was seated on a swivel chair at a pokies venue. The parties agreed that the balance of the film showed the plaintiff sitting on the swivel chair at the pokies venue and, by agreement, nothing further was shown.[69] The plaintiff appeared to move freely, and was driving a truck which was no doubt used by him to perform work for McQueen. However, the film was relatively short and did not show the plaintiff engaging in any particular arduous activity, although it was suggestive of an ability, on his part, to engage in that level of activity.
[69] Exhibit 4
Facebook ꟷ social and recreational ability
59Next, under cross-examination, the defendant produced photographs from Facebook depicting the plaintiff. The first photograph shows the plaintiff sporting a beard and wearing football gear. It was uploaded onto Facebook on 10 August 2014. Under cross-examination, the plaintiff said that he tried to return to Australian Rules Football in 2014-2015, playing some games in 2014, and five or six games in 2015.[70] Under further cross-examination, the plaintiff was shown three photographs uploaded onto Facebook on 17 November 2016, showing him in a swimming pool with a child.[71] He agreed that the photographs were of him in a pool at the Ocean Grove Caravan Park with one of his children. He agreed that he tried to lift up his children in the pool and play with them.[72] Under further cross-examination, the plaintiff was shown nine photographs of him at a wedding. The photographs show the plaintiff striking various poses with others, dancing and playing a game of quoits. The plaintiff agreed that he was at a wedding all day. He agreed that he tried to engage in dancing.[73]
[70] T87-88
[71] Exhibit 2
[72] T99-101
[73] Exhibit 3
No evidence from treaters
60The next issue of significance raised by the defendant was the failure by the plaintiff to obtain any evidence from the physiotherapist and osteopaths from which he claimed he obtained treatment between 2014 and 2016. The defendant submitted that, the reason why the plaintiff did not produce any such evidence, was because it does not exist. Under cross-examination, the plaintiff repeated that he had that treatment, and had not obtained any evidence from any physiotherapist or osteopaths.[74] While it is clear that the plaintiff did not obtain that evidence, I am not persuaded that it is as significant an issue as was submitted by the defendant, given the other medical evidence, which I will refer to in some detail below.
[74] T102
Conclusions
61I accept the plaintiff’s evidence that he suffered a lower back injury on 25 January 2011. I do not accept the defendant’s submission that the plaintiff’s lower back injury has resolved. The defendant relies on a number of factors in making that submission. It submitted that, the fact that the plaintiff continued to work, has had limited medical treatment, and has had a number of alleged incidents which have caused or contributed to his current lower back condition, all work against the conclusion that, what occurred on 25 January 2011, resulted in him suffering a lower back injury, with that lower back injury continuing to cause him the pain and suffering, and loss of earning capacity consequences contended for by him. It, of course, relies heavily on the attack it made on the plaintiff’s creditworthiness and reliability as well.
62I will deal with that submission in reverse order. I was disquieted by the general tenor of the plaintiff’s evidence. I can well understand that, being asked to remember events over eleven years can be difficult, and some allowance needs to be made for that, except where the plaintiff’s failure may go to the onus he bears to positively prove matters which are critical to the case being put. The plaintiff very often resorted to saying that he could not remember, and I suspect that there was a hint of the plaintiff giving that answer non-responsively to avoid dealing with aspects of the cross-examination where the answers might not have suited him. However, I think there is a strong body of evidence to otherwise confirm the plaintiff’s evidence that he suffered a lower back injury on 25 January 2011, which has persisted in causing him pain and incapacity for work and, more particularly, a level of predicted deterioration, resulting in him taking on non-physical work, as he is doing with ExtrordinAir.
63It is beyond doubt that the plaintiff falsely represented his level of experience as a lagger in submitting a very edited and favourable reference from Mr Hodges. However, to submit that the falsehoods then infect the whole of the plaintiff’s evidence, is going too far. The falsehoods were directed to the plaintiff’s attempt to get fly-in-fly-out work, and I think should be isolated to that issue. As for the disquiet I have about the general tenor of his evidence, I have considered the whole of the evidence, and have reached conclusions favourable of the plaintiff, where there is other evidence which is persuasive on issues on which I might have some level of doubt about the plaintiff’s veracity.
64Dr Walton, Professor D’Urso and Dr Brazenor understood the timeline from 25 January 2011, and the work which the plaintiff has undertaken since that date. In my experience, Professor D’Urso and Dr Brazenor feature often as medico-legal consultants, and are surgeons of the highest rank. The issues of looking back and determining questions of causation are not novel questions to either of them. The fact that they both implicate what occurred on 25 January 2011 is powerful evidence in favour of concluding that it resulted in the plaintiff suffering a significant lower back injury, together with the fact that they both implicate that lower back injury as being actively the cause of the plaintiff’s present lower back problems. While Dr Brazenor refers to other causes as well, I am not persuaded that those other causes are separate and distinct events, and I will deal with that next. Additionally, there is the evidence of Dr Walton, who is the only medical practitioner who has known the plaintiff throughout, and whose opinion should be respected in reaching the same conclusions as Professor D’Urso and Dr Brazenor.
65Dr Brazenor did not examine the plaintiff. His report is based upon an assessment which he described as “on the papers”. I think it is a well-enough understood problem with determining evidence based upon papers, absent explanation by the persons involve who may be able to provide an explanation which the papers either do not condescend to, or do not condescend to in an explanatory way. I think my experience as a judge in reading papers, and then hearing the evidence from the persons involved, is a clear demonstration that the evidence from the persons involved can lead to a different emphasis, if not a different conclusion, on an issue.
66Dr Brazenor, in some way, concluded that there were separate and distinct events which occurred in April 2013, February 2019 and February 2021, based upon, perhaps, what his attention was directed to in a letter of instruction and/or by the clinical notes which he was provided, and which I have referred to above, when dealing with the issue of what other incidents Dr Brazenor believed had occurred. This was not something which Dr Watson or Professor D’Urso considered as worthy of any separate comment. The plaintiff’s own evidence is that the references in reports and clinical notes of increases in lower back pain, accompanied by the need for some treatment, are flare ups in the context of a persisting lower back condition.
67Not every increase in pain can, or should, be characterised as a separate and discrete incident, when the characterisation is based upon a resort to treatment because of a flare up or expected deterioration. That was made plain in Altona Bus Linesv Lococo,[75]in which the Court of Appeal dealt with a matter which bears some factual similarities to what I am dealing with here. I have disposed of this issue in the same way as the trial judge in Lococo, that is, relevant to this plaintiff’s case, that the pain experienced by the plaintiff in his lower back and left leg, and his level of disablement, are consequences of the injury suffered by the plaintiff on 25 January 2011. Buchanan JA approved of that approach, as did the other members of the Court of Appeal. Furthermore, the conclusion I have reached is consistent with the opinions of Dr Watson, Professor D’Urso and, to a fair extent, Dr Brazenor, which fortifies me in reaching this conclusion.
[75] [2002] VSCA 159 at paragraph [12] ("Lococo")
68Dr Brazenor did not have the benefit of obtaining direct information from the plaintiff, as he would have had he been asked to examine the plaintiff face-to-face. He would have been in receipt of the plaintiff’s view that there were no separate and discrete incidents, but persistent level of pain which worsened at various times. Whether that would have made any difference to Dr Brazenor’s opinion is unknown, and to suggest that it would have impacted upon his characterisation of the other incidents contributing to the plaintiff’s current lower back injury, may be speculation, but it leads me to be more comfortable in accepting the opinions of Dr Watson and Professor D’Urso.
69The summary of the evidence of Dr Watson, Mr Oehme, Professor D’Urso and Dr Brazenor, demonstrate that they accept the plaintiff has suffered a lower back injury, of an extent and degree where they consider that significant restrictions should be placed upon his capacity to work, and relevant to his general physical functioning. I think I have already observed that it is a powerful body of evidence, and when coupled with my acceptance of the plaintiff’s evidence that he has suffered persistent pain and incapacity since 25 January 2011, I accept that the reason why he is working in the position with ExtrordinAir is because his capacity for work has been reduced by the impact of the lower back injury.
Fly-in-fly-out work
70It is abundantly clear that there are two men in the plaintiff’s family who undertake fly-in-fly-out work. His father has done so for many years, as has his brother. Their evidence in that respect is unchallenged, and, I would think, unchallengeable. There is no doubt that fly-in-fly-out work is very handsomely paid.
71What is also abundantly clear, is that the plaintiff was chasing fly-in-fly-out work. According to his brother, he qualified to undertake fly-in-fly-out work in the absence of any trade qualifications. The plaintiff quite obviously has trade qualifications. What he does not have is experience as a lagger. The plaintiff obtained work as a fly-in-fly-out worker with Ridge Bay, although the work he performed was the installation of sprinklers and fire suppression systems at docks.[76]
[76] PCB 7
72There is no evidence that the tasks required of a lagger require any particular trade-related qualification, nor any particular experience. The defendant submitted, essentially, that the plaintiff did not have that experience and that it should follow that he should be regarded as someone unqualified to perform that work. The plaintiff appeared to understand what lagging work involved. He described it as measuring and cutting lengths of insulation which is wrapped around pipes and then taped. I accept the plaintiff’s evidence that he was sufficiently aware of lagging work and what was involved to be capable of performing that work.
73The restrictions referred to by Dr Watson, Mr Oehme, Professor D’Urso and Dr Brazenor will preclude the plaintiff from performing tasks required of him in his earlier employment, up to the time when he left McQueen and took up employment with ExtrordinAir. I accept that he would experience the same difficulties in performing work as a fly-in-fly-out worker performing lagging work, and by reason of his lower back injury, and the incapacity resulting from it, he is now precluded from performing that work.
74The earning capacity which the plaintiff has lost is as a fly-in-fly-out worker performing lagging work. The measure of that loss of earning capacity is the income which the plaintiff could derive from that work. A measure of the loss is what his brother now earns as a fly-in-fly-out worker of $240,000 gross per annum. It must be remembered that he is not a tradesman, or, to use his language, not trade certified. It is his view that the plaintiff would earn a greater hourly rate than he is capable of earning, because the plaintiff is a tradesman, or, again, to use his language, trade certified.
75I do not intend to condescend to setting out the plaintiff’s income which he was capable of earning with the employers before and since 25 January 2011, because it is clear that, if he is capable of earning $240,000 gross per annum, or more, as a fly-in-fly-out worker, then he easily meets the statutory threshold of loss of earning capacity to be given leave to bring a proceeding at common law to recover damages for loss of earning capacity.
76In Advanced Wire & Cable Pty Ltd v Abdulle,[77] the Court of Appeal approved of the statutory interpretation undertaken by the trial judge of this Court that, if an applicant satisfies the loss of earning capacity requirements, the applicant will be permitted to then claim damages for both loss of earning capacity and pain and suffering. On the basis of the conclusion I have reached relevant to the plaintiff’s loss of earning capacity, he is then entitled to bring a proceeding to recover damages for both pain and suffering and loss of earning capacity, without the necessity to separately consider his application relevant to pain and suffering consequences.
[77] [2009] VSCA 170
77Therefore, and on the basis of a consideration of the whole of the evidence, I am satisfied that the evidence demonstrates that the plaintiff has met the statutory threshold relevant to loss of earning capacity, after I have made a relevant comparison with like impairments, as I am required to do, and, having done so, I will grant the plaintiff the leave that he seeks.
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