Manjuparambil v Victorian WorkCover Authority
[2023] VCC 1478
•30 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-02046
| SAJIVE MANJUPARAMBIL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 July 2023 | |
DATE OF JUDGMENT: | 30 August 2023 | |
CASE MAY BE CITED AS: | Manjuparambil v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1478 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – permanent serious impairment and loss of body function – right shoulder injury – pain and suffering and loss of earning capacity consequences – credibility and reliability of plaintiff – small business owner – conflicting lay and medical evidence
Legislation Cited: Accident Compensation Act 1985 (as at 1 July 2012), s134AB
Cases Cited: Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Richter v Driscoll [2016] VSCA 142
Judgment: Leave granted to the plaintiff to issue proceedings for the recovery of damages for pain and suffering in respect of the right shoulder. Application in relation to loss of earning capacity dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I D McDonald KC with Mr B House | Henry Carus + Associates |
| For the Defendant | Mr C A Miles | TG Legal + Technology |
HER HONOUR:
Introduction
1This is an application by Mr Sajive Manjuparambil (“the plaintiff”) for leave to bring common law proceedings for pain and suffering and economic loss pursuant to 134AB of the Accident Compensation Act 1985 (“the Act”).
2The relevant body function is right shoulder, which is said to have been injured at work as a welder in July 2012 while the plaintiff was employed with BAE Systems Australia (“the employer”), a military vehicles manufacturer.
3The effects of the injury are said not to have become serious until 2016.[1]
[1]Transcript (“T”) 108, Lines (“L”) 24-25
Background and summary of facts
4The plaintiff was born in India in December 1970. He attended school until Year 11, after which, he completed an apprenticeship in welding at an Indian technical trade school. Thereafter, he worked as a welder.
5In 2005, the plaintiff moved to Australia with his wife and children, who are now adults aged 18 and 21. Initially the plaintiff resided with his family in Tasmania. While there, he worked at “THE Engineering” for four years.[2]
[2]Plaintiff’s Amended Court Book (“PACB”) 5, the plaintiff’s first affidavit sworn on 11 November 2020 (“the first affidavit”) at paragraph [12]
6In 2010, the plaintiff commenced employment as a boilermaker/pressure welder with the employer, in Williamstown. The work was physical, often performed in confined spaces. He worked 38 hours a week and also performed six hours of overtime on Saturdays.[3]
[3]Ibid at paragraphs [13]-[14]
7The plaintiff’s claim relates to a right shoulder injury at work, reported to the employer in July 2012. After the injury, the plaintiff alleges he attended the onsite physiotherapist and was placed on modified duties.
8The plaintiff alleges he continued on modified duties until he was made redundant in September or October 2013.[4] Following his redundancy, the plaintiff worked in a variety of welding jobs which he described as “light”.
[4]PACB 7, the first affidavit at paragraph [40]
9The plaintiff gave evidence that he was a highly skilled welder,[5] able to perform a range of welding work. The plaintiff’s evidence was that his degree of skill was such that his post injury employers wanted him to perform a very wide variety of welding work, which he could not do, on account of his injury.
[5] T29, L28-31 and T66, L17 – T67, L10
10In 2016, the plaintiff’s right shoulder worsened on a drive to Adelaide for no obvious reason. He sought treatment for it, underwent investigation by MRI and ultimately came to an arthroscopic repair performed by Mr Ash Chehata on 14 June 2017.
11After the surgery, the plaintiff attempted unsuccessfully to return to work as a welder.
12In October 2018, the plaintiff embarked on retraining to be a welding teacher but did not complete all components of that training.[6]
[6]T37, L9-13
13In November 2019, the plaintiff purchased a newsagency business in Warracknabeal, together with the building from which it operates. The business employs a number of staff. The plaintiff manages all aspects of the business, including its accounts, rosters and staff.
14The plaintiff’s wife and adult children reside in Melbourne. In order to operate the business, the plaintiff lives in Warracknabeal during the week in a unit rented by the business and travels to and from Melbourne on weekends in order to spend time with his family.
15The plaintiff impressed me as a very intelligent and extremely capable man. In order to run his business, the plaintiff has been able to learn various relevant skills such as management, human resources and business-related computer accounting software skills.[7] His business is thriving. It employs three part-time staff,[8] and the plaintiff considers it has turned out to be a good investment.[9]
[7] T40
[8]T42, L1-4
[9]T45, L5
16The plaintiff claims he cannot perform suitable employment because he has limited experience and education.[10]
[10]T112 – T113
17The plaintiff also claims that he is not drawing a net profit $1,100 from the business each week so he has established a loss of earning capacity which meets the test under the legislation.[11]
[11]Accident Compensation Act 1985 (as at 1 July 2012) (“the Act”), s134AB(38)(e)
The defendant’s case
18The defendant disputes that the plaintiff was on light duties following the reported injury at work in 2012. The defendant asks the Court to find that the plaintiff had a constitutional degenerative condition affecting his right shoulder which was, at best, mildly aggravated in the reported incident, but which aggravation has long since ceased.
19If I find the incident in 2012 is a cause of the current condition affecting his right shoulder, the defendant submits the plaintiff has a capacity for a variety of suitable employment positions but is electing to pursue self-employment in his own newsagency business.
20The defendant submits that the plaintiff’s credit is in issue and relies on inconsistencies in the plaintiff’s evidence in support of that notion.
21No surveillance material was tendered.
Issues for determination
22The issues for determination by the Court are as follows:
(a) the plaintiff’s credit;
(b) whether the right shoulder condition is compensable; and
(c) if the right shoulder is compensable, what consequences are attributable to it and is it a serious injury?
23The legal principles are well settled and not in dispute.[12]
[12]T127, L5-14
The alleged injury
24The dispute is whether the plaintiff’s 2016 rotator cuff injury is causally related to the plaintiff’s work with the employer in 2012, and if so, whether it is a serious injury.
Chronology of events relevant to the development of the shoulder injury
25As set out above, in 2010, the plaintiff commenced working for the employer as a full-time welder/boilermaker. The employer manufactured military machinery and warships.
26An incident report dated 3 July 2012 contains a description of the incident which the plaintiff relies on as being “a cause” of his 2016 right shoulder condition.
27That incident is said to have occurred on 2 July 2012:
“… has been working in the electrical jackets, a very tight confined space, over the past 2 days. He noticed soreness yesterday and applied Deep Heat last night. Working in there again this morning and the soreness returned.”[13]
[13]PACB 27
28The incident report refers to a report having been made to the “first aid hut”.The incident report also refers to an investigation of the incident on 10 July 2012. That investigation found that the conditions at the time were “unsafe conditions: having to weld in a confined space laying down”. The subject of the investigation is noted in the report as “employee’s sprain to the shoulder”.[14]
[14] Ibid
29No position description was tendered.[15]
[15]T79, L26-28
The plaintiff’s evidence
30The plaintiff’s first affidavit was sworn on 11 November 2020. It provides that he was injured in mid-2012:
“As I was manoeuvring myself out of the confined space, I heard a cracking sound in my right shoulder and felt immediate onset of pain. I reported my incident”.[16]
[16] PACB 6, the first affidavit at paragraph [16]
31In viva voce evidence, the plaintiff told the Court that following his injury, he attended the physiotherapist who was on site at his workplace. The physiotherapist provided treatment and recommended modified duties.
32The plaintiff told the Court that his physiotherapist attended the “shop” where he was working and spoke to his supervisor. As a result of this interaction,[17] he was placed on modified duties until he was made redundant in 2013.
[17]T16, L21-31
33The plaintiff told the Court that the light duties consisted of acting as look out for people welding in and coming in and out of confined spaces,[18] welding on a bench and not doing any heavy lifts.[19]
[18]T14 – T15
[19]T15, L16-23
34The plaintiff also said that after six months, he was taken out of welding and for approximately six months prior to his redundancy, he and 20 others were allocated a task of cleaning a ship and shipyard.[20]
[20]T16, L1-12
The defendant’s evidence
35In support of its case that the plaintiff was never on light duties, the defendant tendered two affidavits.
36The first was the affidavit of Gary Kirkham (Workers Compensation Scheme Lead) of the employer BAE systems. The affidavit was sworn on 18 January 2023 (“the Kirkham affidavit”).[21]
[21]Defendant’s Amended Court Book (“DACB”) 172-198, the affidavit of Gary Kirkham sworn on 18 January 2023 (“the Kirkham affidavit”)
37The second was the affidavit of Peter Wood (technical manager at Allianz) sworn on 17 January 2023 (“the Wood affidavit”).[22]
[22]DACB 152-171, the affidavit of Peter Wood sworn on 17 January 2023 (“the Wood affidavit”)
38Neither Gary Kirkham nor Peter Wood were required for cross-examination.
39The Kirkham affidavit provides that:
(a) in July 2012, the plaintiff reported a sore shoulder “working in a confined space for an extended period” but did not lodge a Workcover claim at that time;[23]
(b) all workers “who had sustained a workplace injury were placed on restricted duties and were not allowed to access overtime” and “workers with any physical restrictions were placed on a Return To Work Plan or a series of ongoing Return To Work Plans detailing the restrictions until the injury had fully resolved”;[24] and
(c) the defendant had no suitable duties plans, return to work plans, or similar documents in relation to the plaintiff;[25]
(d) after reporting the right shoulder injury in July 2012, the plaintiff continued to work his regular hours including overtime which was not available to workers on “Return To Work Plans”; and
(e) the plaintiff had gone to Bodycare physiotherapy who were “providing physiotherapy services on site at that time”.[26] This organisation confirmed they had treated such a patient but required a consent form to release the medical notes.[27]
[23]DACB 173, the Kirkham affidavit at paragraph [12]
[24]Ibid at paragraph [6]
[25]Ibid at paragraph [8]
[26]DACB 193, Exhibit “GK-1” of the Kirkham affidavit
[27]DACB 195, Exhibit “GK-1” of the Kirkham affidavit
40The Wood affidavit provides that:
(a) on or about 13 March 2018, the plaintiff completed a claim for compensation in respect of a right shoulder injury allegedly sustained in or about September 2012;
(b) on 3 April 2018, in order to determine liability for the claim, Allianz arranged for the plaintiff to be examined by general surgeon, Mr Michael Long;
(c) on 6 April 2018 Mr Long provided a report. As a consequence of that report, Allianz accepted liability for the claim and paid the plaintiff statutory compensation in respect of the claim;
(d) in or about April 2018, after receipt of Mr Long’s report, Allianz expected to obtain further medical material from BAE Systems Australia Defence Proprietary Limited, in order to review its liability for the claim. No further medical material was received by Allianz from BAE, and accordingly, Allianz did not review its liability for the claim;
(e) on 8 December 2021 orthopaedic surgeon Dr John Owen provided a report in which he expressed the opinion that the plaintiff’s ongoing right shoulder condition was not causally connected to employment with BAE; and
(f) prior to receiving Dr Owen’s report, Allianz was not aware it had grounds to terminate the plaintiff’s entitlement to statutory compensation: “After the plaintiff’s originating motion proceeding is finalised, Allianz will review its liability for the claim”.[28]
[28]DACB 152-153
Credibility and reliability of the plaintiff – submissions of the parties
41In an application such as this, the credit of the plaintiff is of great importance, both directly and indirectly. The opinions of medical witnesses and other experts depend upon what they have been told by the plaintiff and upon his behaviour and performance on examination and on testing.[29]
[29]Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi [1998] 4 VR 439 at 448 per Brooking J.A.
42In this case, the causal link between employment and the right shoulder condition is contingent upon the plaintiff’s credit. In particular, it is contingent on the Court’s acceptance of the plaintiff’s evidence that after 2012, the plaintiff had ongoing right shoulder symptoms which he accommodated with lighter work. This is so because, as counsel for the defendant submitted, aside from the Incident Report, there is no record of attendance on any doctor about the right shoulder condition between 2012 and 2016.[30]
[30]T125
43Counsel for the defendant urged upon the Court a finding that whatever occurred in relation to the right shoulder at work in 2012 was inconsequential. Further, that the onset of pain in 2016 and subsequent need for surgery was unrelated to employment. The plaintiff’s credit with respect to his restrictions between 2012 and 2016 was challenged. It was only when he was told he needed surgery, that he contemplated a legal solution to his problem.[31]
[31]T120, L19-31
44Finally, counsel for the defendant submitted that the plaintiff was “not totally credible and not totally incredible”.[32]
[32]T124, L10-11
45Senior counsel for the plaintiff submitted that the plaintiff was an impressive witness, was extremely frank and candid and made multiple concessions in the course of his evidence. The Court ought to accept his evidence on significant issues, absent corroboration, unless there was a good reason not do so.[33]
[33]T100, L 2-21
46In response to questions from the Court about some matters raised by the defendant in cross-examination of the plaintiff, senior counsel for the plaintiff conceded that there may have been minor “chips” in the plaintiff’s credit made during the cross-examination, however these did not affect his overall credibility on the major points.[34]
[34]T148 L17-24 and T150, L5-9
47For reasons which follow, I conclude that some aspects of the plaintiff’s evidence were not reliable. However, overall, I accept his evidence about the contentious issues.
Assessment of the plaintiff’s credibility and reliability
(i) Inconsistency of the plaintiff’s evidence on matters which were not central to the Court’s task
48In the plaintiff’s first affidavit, the plaintiff provided his home address as being located in Seabrook, and deposed that he had purchased a newsagency store in November 2019.[35] The plaintiff deposed that he avoided long drives and if he had to take a long drive, he took more breaks.[36] He did not state in that affidavit, that the newsagency was in Warracknabeal, some three and a half hours’ drive from Seabrook, or that he was commuting from Warracknabeal to Melbourne and back on weekends, to enable him to work in the newsagency. This omission is of significance in the context of the alleged driving limitation. Senior counsel for the plaintiff conceded that in his affidavit, he was overstating the position with respect to his driving limitation. I find that this does impact on his reliability with respect to the alleged consequence of long distance driving.
[35]PACB 8, the first affidavit at paragraph [45]
[36]PACB 10, the first affidavit at paragraph [69]
49The plaintiff’s second affidavit was sworn on 23 December 2022. In that affidavit, the plaintiff deposed to the alleged impact of his shoulder injury on his relationship with his children and on his ability to walk his two dogs.[37] The plaintiff was living in Warracknabeal when he swore the affidavit and would only have been seeing his adult children on weekends, when he returned home.
[37]PACB 14, the plaintiff’s second affidavit sworn on 23 December 2022 (“the second affidavit”), at paragraphs [25] and [28]
50Counsel for the defendant submitted, in effect, that the plaintiff was prepared to swear an affidavit which was not correct in respect of the issue with the dogs.[38] I do not accept this submission. When asked about the dogs, the plaintiff told the Court he had only ever had one dog and it was a mistake in the affidavit to suggest he had two.
[38]T123
51It may be that the mistake was made in the drafting and the plaintiff did not take care to read it thoroughly when he swore it. The evidence about the dogs is of little if any consequence to the real issues in dispute.
(ii) Inconsistency of the plaintiff’s evidence on matters which were central to the Court’s task
52Counsel for the defendant submitted that the Court ought not accept the plaintiff’s evidence that he was on light duties after he reported his shoulder injury in 2012. The reason for this was due to the alleged inconsistency with the contents of the unchallenged evidence in the Kirkham affidavit.
53Senior counsel for the plaintiff submitted there was no inconsistency between the Kirkham affidavit and the plaintiff’s evidence.[39] The reason for this was said to be because the Kirkham affidavit sets out a procedure which is more in line with a formal worker’s compensation claim having been lodged, whereas no such claim had in fact been lodged by the plaintiff in 2012. I accept that submission for the following reasons:
(a) Mr Kirkham deposed his affidavit in his capacity as “Workers Compensation Scheme Lead”. His evidence relates to his experience in the worker’s compensation scheme;
(b) The affidavit refers to “return to work plans” which are features of the worker’s compensation claims process.
[39]T136, L1-10
54The plaintiff gave viva voce evidence and relied on his first affidavit and on a statement he provided on 5 April 2018 to an investigator, Graeme Haynes of LKA Group Pty Ltd. The plaintiff made the statement when he lodged his workers injury claim (“the plaintiff’s statement”).
55The overall effect of this evidence was as follows:
(a) on the day of his injury, he was working in a confined space and being observed by a person called Gerald, in line with the “space safety practices”;[40]
(b) he reported his injury to “Zoran Gumza” who provided him with alternate duties and directed him to see a physiotherapist, which the plaintiff did one to two times weekly;[41]
(c) the physiotherapist undertook to speak to the plaintiff’s supervisor and have his duties restricted to lighter duties;
(d) he performed light duties until he was made redundant in September-October 2013;
(e) in cross-examination, the plaintiff said his light duties included looking out for people who were working in confined spaces, and he did that for his regular hours and overtime because it was necessary as there were people working overtime in confined spaces. He also told the Court he did lighter welding work for the first six months, after which time, he and others were taken out of welding and directed to perform cleaning work;[42] and
(f) he was never placed on a return to work plan.[43]
[40]DACB 7, the plaintiff’s statement to Graeme Haynes of LKA Group Pty Ltd, an investigator, on 5 April 2018, deposed to by the plaintiff on 11 April 2018 (“the plaintiff’s statement”) at paragraph [46]
[41]DACB 8, the plaintiff’s statement at paragraphs [49]-[57]
[42]T14 – T16
[43]T15, L30
56The Kirkham affidavit does not address a number of important matters.
(a) Firstly, it makes no mention of the allegation in the plaintiff’s statement to the investigator that the physiotherapist arranged the light duties for him. The plaintiff’s statement must have been available to the defendant at the time of the Kirkham affidavit.
(b) Secondly, the Kirkham affidavit is silent on the question of whether or not there was any process or procedure for a worker placed on light duties by a physiotherapist, aside from the confines of a formal claim for compensation.
(c) Thirdly, the Kirkham affidavit is silent on the issue of the actual duties the plaintiff was performing after July 2012.
57The Kirkham affidavit exhibits an email chain dated 16 and 17 April 2018 between the deponent and the on-site physiotherapist, Bodycare.[44] That email chain confirms that the plaintiff was a patient of the clinic, but in order to release the notes, consent was required.
[44]DACB 196, Exhibit “GK-1” of the Kirkham affidavit – on 16 April 2018, Mr Kirkham emailed “Bodycare bookings” requesting details of treatment provided to the plaintiff who “is claiming to have sustained a right shoulder injury in July-September 2012 for which he was treated with onsite physiotherapy at our Nelson Place Williamstown site over several weeks” (emphasis added)
58The treatment notes regarding the shoulder injury are not in evidence before the Court. They have not been available to the parties in this proceeding.[45] Bodycare Physiotherapy has provided notes relating to the plaintiff for treatment in February 2012 for “intermittent right knee pain at work”.[46] During closing addresses, the Court was informed by both parties that despite requests, the Bodycare notes regarding the shoulder, have not been provided. Counsel for the defendant did not suggest to the plaintiff or submit to the Court that there would be no notes regarding the shoulder or that if they existed, they would not assist the plaintiff.[47]
[45]T124, L20-26 and T138, L28 – T139, L1-13
[46]DACB 203
[47]T13, L17-19 and T125, L1-10
Findings about the plaintiff’s credit as they bear upon the issues central to the Court’s task
59I accept the plaintiff’s evidence that in July 2012, after he reported having injured his shoulder working in a confined space, he attended the on-site physiotherapist. I make that finding for two reasons.
(a) first, the finding is supported by the incident report which provides that the plaintiff was “assessed and referred to Liam for physio”;[48] and
(b) second, the finding is supported by the contents of the email chain exhibited to the Kirkham affidavit confirming the plaintiff’s attendance “onsite” (which I take to be the employer’s worksite).
[48]PACB 28
60I accept the plaintiff’s evidence that he was placed on light duties by or at the suggestion of the physiotherapist. I do so for two reasons:
(a) first, due to the inferences which I draw from the contents of the incident report. The report is dated 3 July 2012 and the date of onset of symptoms is said to be the previous day. The report also provides that an investigation was undertaken on 10 July 2012 by the investigation team. The ‘sequence of events’ are listed as “welding in confined space”. The ‘conditions at the time’ are listed as “unsafe conditions: having to weld in a confined space laying down”. The activity the subject of the investigation is said to be “employees sprain to shoulder”;[49] and
(b) second, the Bodycare notes which were tendered in evidence contain an authority which confirmed a process of discussion between the physiotherapist and a representative of the employer, regarding injuries for which the person is receiving treatment. That authority was dated 7 February 2012 (when the plaintiff attended for a work-related knee injury) and authorised “my physiotherapist to supply my employer with information in relation to my condition and to discuss my injury with a representative of my employer”.[50] The subject injury occurred in July 2012, less than four months after this authority was signed. No evidence about a change in process or procedure at Bodycare was led. I therefore infer that this authority, or one like it, was available at the time of the shoulder injury.
[49]Ibid
[50]DACB 207
61I find that the period of one week between the date the report was made (3 July 2012) and the investigation date (10 July 2012) is sufficient time for the plaintiff to have attended the physiotherapist in accordance with the referral nominated in the report. It is also sufficient time for the stated conclusion to be drawn that he had “sprained his shoulder having to weld in a confined space laying down”. The ‘injury details’[51] are also consistent with communication between the person who wrote the report and the person conducting the investigation. This is because of the use of the words “sore rotor cuff from confined space welding”. “Rotor cuff” is not used in ordinary parlance. It is in all probability a mistyped reference to “rotator cuff” which makes it likely that there had been a discussion with the physiotherapist.
[51]PACB 28
62There is no dispute that at the time the plaintiff said he was performing light duties and overtime; he had not lodged a formal Workcover claim. Therefore, no formal return to work plan as provided in the Kirkham affidavit would have been required. I accept the submission made by senior counsel for the plaintiff that at best, the Kirkham affidavit deposes to a policy in place at the employment site, but there is no evidence that policy ever applied to the plaintiff.[52] I do so by taking into account all of the evidence and, in particular, by reference to the Kirkham affidavit itself which is silent on the issue.
[52]T134, L1 – T135, L10
63I find that the existing authority for the physiotherapist to discuss injuries with the plaintiff’s employer allows the inference to be drawn that any modifications of the plaintiff’s duties on account of any injury would have been discussed at that time between the physiotherapist and the employer.
64I accept the evidence of the plaintiff that his supervisor and physiotherapist told him “he could do welding on a bench, nothing overhead and … should not be doing any heavy lifts.”[53] I do so because it fits well with the expert opinions subsequently obtained for this case, among which there is consensus that the plaintiff’s rotator cuff has been affected and that he cannot undertake overhead duties.
[53]T15, L16-24
65I also accept the plaintiff’s evidence that he continued in that fashion for six months until he, and a number of others, were taken out of welding and asked to clean a ship and a shipyard.[54] I do so because it makes sense when considering the remainder of the evidence. Further, there was no evidence which contradicted it.
[54]T16, L1-12
66Counsel for the defendant submitted that the documents showed no record of the plaintiff having told anyone that he had work related (right) shoulder pain until 2017, when he had to have surgery for the shoulder. The Court was asked to find that he was seeking a “legal solution to his problem of being unable to return to work as a welder”.[55] The inference being, until then he had no issues whatsoever with his ability to work as a welder. I do not accept these submissions for the following reasons:
(a) First, I have accepted the plaintiff’s account that he continued on light duties until he was made redundant in 2013.
(b) Second, the evidence shows that between November 2013 when he finished with the employer and 30 June 2018, the plaintiff worked at approximately nineteen different workplaces.[56] The plaintiff’s evidence was that following the shoulder injury in 2012, he was aware he had some issues with the shoulder which prevented overhead work and he therefore sought employment positions as a welder which were of a lighter nature.
[55]T120 – T121
[56]PACB 99-101
67The plaintiff provided examples of the work he did after his redundancy. It included working with aluminium and light plates, bench work, no overhead work and no working in tight spaces.[57] I accept this evidence for a number of reasons:
(a) firstly, the plaintiff was continuously employed with the subject employer for three and a half years, working significant overtime. Subsequently, he worked with many employers and was unable to remain in any particular job for any extended period of time;[58] and
(b) secondly, it makes sense that a person aware of a physical limitation would seek work to accommodate that limitation. This is the history provided over the years by the plaintiff to various doctors who have assessed him.[59] It is improbable he would have fabricated such histories and remembered it to retell them the same way in Court, five years later.
[57]T28, L12-18 and T28, L24-26
[58]PACB 99-101
[59]PACB 113, 115 and 121
Plaintiff’s credit and findings regarding the shoulder injury at work in 2012
68As set out above, I find the plaintiff was generally a witness of truth but on occasion, with respect to one or two peripheral matters, his evidence was not reliable.
69The defendant submitted that the contemporaneous records do not support the existence of a right shoulder injury at work. In particular, reference was made to a report dated 21 December 2012 referring to treatment for the neck. That report provides that “six months ago he had a work-related left shoulder injury which seems to be somewhat recovered.”[60] The stated period, “six months ago”, refers to June/July 2012. The notes of the plaintiff’s general practitioner (“GP”) in May and June 2012, refer to a left arm injury at work and “pain left shoulder”.[61]
[60]DACB 199 (emphasis added)
[61]DACB 212-213
70I do not accept this submission. It is clear from the incident report that the plaintiff had issues with his right shoulder and reported them. This shows the existence of a right shoulder injury at work in July 2012. I accept the plaintiff’s evidence, that thereafter, he accommodated it with lighter work.
71In his first affidavit, the plaintiff deposed that in 2016, he was experiencing worsening right shoulder pain and consulted his GP, Dr Thomas.[62] In cross-examination, the plaintiff told the Court, that in 2016, on a prolonged drive to Adelaide, he again felt pain in his arm.[63]
[62]PACB 6, the first affidavit at paragraph [21]
[63]T27 – T28
72In February 2017, following the worsening of his pain, the plaintiff was referred to a shoulder surgeon, Mr Matthew Evans. Mr Evans recorded that the plaintiff “injured the shoulder three or four years ago with an unspecified mechanism and had pain that settled down with time and physiotherapy”.[64] Mr Evans considered that the plaintiff would have high demands on his shoulder in his work as a welder and recommended surgery if a full thickness tear is found on the imaging.[65]
[64]PACB 59
[65]Ibid
73In May 2017, the plaintiff was assessed by Mr Ash Chehata, orthopaedic surgeon. Mr Chehata reported to the plaintiff’s GP that the plaintiff is “…right hand dominant who initially said he had injured his shoulder at work five to six years ago”.[66] Mr Chehata recommended surgery. Until then, the plaintiff had been able to manage his shoulder and work in lighter work, without difficulty. He had to cease the lighter welding work shortly before he underwent the surgery.[67]
[66]PACB 61
[67]PACB 7-8, the first affidavit at paragraph [42]
74The plaintiff told the Court that he paid for the surgery himself through his health insurance. The surgery rendered the plaintiff unable to work and caused him to seek legal advice and to look into the cause of his shoulder condition.[68] I accept this evidence. It makes sense that when a person is unable to work and support his family, he might seek to find the reasons for that.
[68]T17
75On 5 March 2018, the plaintiff lodged a Worker’s Injury Claim Form (“the claim”). The form attached an annexure providing details of the work he was performing when he was injured and the name of the person to whom it was reported as well as the details of his treatment with the physiotherapist.
Acceptance of the claim for compensation
76As provided in the Wood affidavit, the defendant’s agent (Allianz) sought an opinion from Mr Michael Long (general surgeon) in relation to the claim.
77On 6 April 2018, Mr Long reported to Allianz that “based on the history provided by the worker, the conditions and subsequent disability of the right shoulder is directly related to his employment with BAE Systems Australia ... . ... There is no evidence that he sustained any further injury or specific aggravation since the original injury.”[69] “It is considered that the injury sustained in 2012, based on the history provided by the worker, was a new injury. There was no history of any injury or previous problem related to his right shoulder prior to that time.”[70]
[69]PACB 117 (emphasis added)
[70]Ibid
78Based on Mr Long’s opinion, the claim was accepted, and the plaintiff received statutory benefits[71] until 12 July 2023 when his entitlement was terminated.[72]
[71]DACB 153, the Wood affidavit at paragraph [4]-[5]
[72]DACB 14
The significance in the case of acceptance of the plaintiff’s claim
(i) Submissions of the parties
79Counsel for the defendant submitted that the claim would not have been accepted in 2018 if the physiotherapist’s notes had been available,[73] and relies on the Kirkham and Wood affidavits to support that submission.
[73]T10, L18-31 – T11, L11
80Senior counsel for the plaintiff submitted that in accordance with Ansett Australia Ltd & Anor v Taylor,[74] the Court ought to place considerable weight upon the acceptance of liability.
[74][2006] VSCA 171
81Senior counsel for the plaintiff also relied on Sednaoui v Amac Corrosion Protection Pty Ltd (“Sednaoui”).[75] In that case, a similar admission against interest was found by the trial judge to exist, however the causation issue remained extant. I consider this case to be in the same category. While I have found the admission is of significance, it does not answer the ultimate question of causation. This threshold issue falls to be decided on the whole of evidence.
[75][2017] VSCA 66
82Mr Long’s report has been relied upon for the acceptance of liability and no further inquiries about the physiotherapy notes have borne any fruit. It is now over five years since the claim was lodged and the notes are yet to be found.
(ii) Was the plaintiff’s employment in 2012 “a cause” of his right shoulder injury?
83In Sednaoui, the Court of Appeal observed that any admission made by the employer’s agent was done without personal knowledge of the injury alleged in the claim form, and in part, was an admission which was not entirely accepted by the plaintiff.
84Such an admission, although significant, cannot be determinative of the issue. The admission was a piece of evidence that had to be weighed in the balance against what might reasonably be thought to be a substantial body of evidence to the contrary.[76]
[76]Sednaoui at paragraphs [61]-[62]
85In the present case, there is very little evidence to the contrary, although there is some evidence that the plaintiff does not accept everything in the incident report and that the defendant disputes the plaintiff’s assertions that he performed light duties after the July 2012 incident.
86I must decide the causation issue on the balance of probabilities, taking into account the whole of the evidence including the findings I make about it.[77]
[77]Sednaoui at paragraph [60]
(iii) The plaintiff’s evidence
87The plaintiff was adamant that his claim form was correct, and he was injured on a Saturday “because it was a half day”.[78]
[78]T18, L1-13
88The incident report is dated 3 July 2012 (a Tuesday) and refers to “noticing soreness yesterday” (a Monday).[79]
[79]PACB 27
89A period of almost six years had passed between the date of injury and the date on which the claim form was lodged. Human memory is not infallible.
90I prefer the contemporaneous record which clearly sets out when the injury is said to have been first noticed, namely, “yesterday”, being the day before 3 July 2012.
91As stated at paragraphs 60-65 above, I accept the plaintiff’s evidence that he injured his right shoulder at work, reported it and thereafter received physiotherapy and performed light duties. Accordingly, I accept that he injured his right shoulder in early July 2012, at work in the circumstances briefly outlined in the incident report.
92The only evidence about the circumstances of injury comes from the incident report and the plaintiff. The only evidence about the duties he was performing prior to and after the injury comes from the plaintiff. I accept the uncontested evidence about the plaintiff’s duties.
Expert evidence on causation – was there an injury in 2012?
93The following experts were the only experts who were asked to express an opinion on causation. They all took into account the occurrence of a specific work injury to the right shoulder in 2012[80] and, to varying extents, the duties the plaintiff was performing at the time he was injured:
(a) Mr Michael Long (general surgeon);
(b) Mr Timothy Gale (general and trauma surgeon);
(c) Mr Russell Miller (orthopaedic surgeon);
(d) Dr John Owen (consultant orthopaedic surgeon); and
(e) Dr Terrence Saxby (consultant orthopaedic surgeon).
[80]Mr Michael Long at PACB 114 and 117; Mr Timothy Gale at PACB 122; Mr Russell Miller at PACB 70; Dr John Owen at DACB 26; Dr Terrence Saxby at DACB 43 and 46
94In April 2018, Mr Michael Long (general surgeon) recorded a history which included the contents of the annexure to the claim form outlining the work in a confined space, hearing a cracking sound when he was manoeuvring himself out if it and feeling immediate pain.[81]
[81]PACB 111
95Mr Long considered (subject to the availability of the physiotherapy notes and employer records confirming injury) that “based on the history provided by the worker, the conditions and subsequent disability of the right shoulder is directly related to his employment with BAE Systems Australia in 2012”.[82] The plaintiff’s claim was accepted on the strength of the report of Mr Long.
[82]PACB 117
96On 30 July 2019, Mr Timothy Gale (general and trauma surgeon) reported to Allianz. Mr Gale recorded a history of developing right shoulder pain while carrying out normal welding duties which involved “a lot of use of the arms above the level of his head”.[83] Mr Gale opined that “as a result of the duties as a ship welder in 2012, the worker is likely to have suffered a rotator cuff injury that has become progressively increasingly symptomatic in subsequent years ultimately necessitating the rotator cuff repair in June 2017 … I would accept that the worker does have some ongoing symptoms that could be reasonably attributed to the effects of his employment in 2012”.[84]
[83]PACB 122
[84]Ibid
97On 20 February 2020, Mr Russell Miller (orthopaedic surgeon) reported to the plaintiff’s solicitors. Mr Miller recorded a history that the plaintiff had been:
“… working for a shipbuilding company since April 2010 on a full-time basis. The work was quite physical and involved fabrication of and building of ships. It involved repetitive and overhead duties. He coped with those duties without any particular difficulties. He states that he was at work in June 2012, undertaking overhead welding in a confined space when he developed the sudden onset of severe pain in the right shoulder….. was seen by physiotherapist ... he continued working on restricted duties where he would effectively avoid overhead welding work. There were ongoing right shoulder symptoms. His work was terminated on 22 November 2013”.[85]
[85]PACB 68
98Mr Miller opined that the plaintiff’s right shoulder condition and its relationship to work was “complex and multifactorial”,[86] but ultimately “substantially work related”.[87]
[86]PACB 70
[87]PACB 71
Experts in support of the defendant’s position on causation
99The defendant relies on the opinions of two consultant orthopaedic surgeons, Drs John Owen and Terrence Saxby.
100Drs Owen and Saxby did not find a causal link because:
(a) Dr Owen considered the plaintiff to have a constitutional condition; and
(b) Dr Saxby considered the 2012 injury to have minimal impact on the 2016 condition.
101Their reports do not make any more than a passing reference to the duties the plaintiff was performing at the time of his injury. In particular, the duties were set out in the statement[88] provided to each doctor and include:
(a) working in confined spaces welding in awkward positions … for an hour or more at a time;
(b) continual overhead welding of pipes over a period of one and a half to two weeks;
(c) working in a confined space on the bridge section of the ship, downwards, head first or feet first subject to where the welding joins were located; and
(d) on the day of injury, welding head first and then having to lift himself up by placing both hands on the side of the manhole when he heard a cracking sound and felt the immediate onset of pain in the right shoulder.
[88]The plaintiff’s statement at paragraphs [33]-[49]
102Dr Owen’s opinion on causation is equivocal. On the one hand, it provides that the employment aggravated a pre-existing degenerative condition. On the other hand, it provides the aggravation did not alter his outcome. Reconciling the two positions, I consider the report ought to be construed as expressing the opinion that the plaintiff’s employment in 2012 made either no contribution or only a very minor contribution to the development of the degenerative condition.
103Dr Terrence Saxby’s opinion is similar to that of Dr Owen. Dr Saxby’s report to the defendant provides “…the alleged incident in 2012 is a very minor factor in the causation or contribution to this condition. I believe even in the absence of this incident, Mr Manjuparambil’s condition would have been as it was”.[89]
[89]DACB 48
104The path of reasoning provided in the report is that:
“…employment after November 2013 probably contributes to a significant amount to his condition. The repetitive overhead welding, I believe would have aggravated his underlying rotator cuff tendinopathy and possibly lead to the rotator cuff tear”.[90]
[90]DACB 47 (emphasis added)
105Dr Saxby draws a causal link between “repetitive overhead welding” and an aggravation of the underlying rotator cuff tendinopathy. This assumes that the plaintiff did in fact engage in repetitive overhead welding after November 2013.
106The evidence before the Court is the duties the plaintiff performed prior to and at the time of his injury were repetitive overhead welding duties,[91] and that following the redundancy in November 2013, the plaintiff obtained only light welding jobs which did not involve overhead welding at all.[92]
[91] PACB 68, 75, 77, 95, 97, 113 and 115; DACB 6-7, the plaintiff’s statement at paragraphs [31] and [37]
[92]PACB 7, the first affidavit at paragraph [41] and PACB 31, the plaintiff’s annexure to the Worker’s Injury Claim Form at paragraph [16]; PACB 68, 74, 93, 113, 115-116 and 118; DACB 9, the plaintiff’s statement dated at paragraphs [59]-[65]
107Neither Dr Owen nor Dr Saxby conclusively exclude the plaintiff’s work from aggravating his shoulder condition. However, both experts express an opinion that any contribution is “minimal” or inconsequential. I reject these opinions for the following reasons:
(a) Dr Owen’s report only referred to the duties “as working in a confined space” and that the plaintiff “felt a click when he was extricating himself” from that space. Dr Owen’s report made no mention of overhead welding work prior to the incident. This omission is significant as Dr Owen did not address whether his opinion applies to exclude duties performed in that way; and
(b) Dr Saxby’s opinion is predicated on the assumption that the plaintiff was performing “overhead welding” after he ceased employment in November 2013. That activity is said to be causally linked to the development of the condition. This is contrary to the findings I make about the plaintiff’s duties which includes a finding that the plaintiff was performing overhead welding work prior to the July 2012 injury. However, it can support a finding that overhead welding work in July 2012, was causative of the right shoulder injury.
Was the plaintiff’s employment with the defendant in July 2012 “a cause” of his right shoulder injury which became prominent in 2016?
108The plaintiff must establish that the injury “arises out of, or in the course of, or due to the nature of, employment” with the employer and that it is a serious injury.[93]
[93] The Act, s134AB(2) (emphasis added)
109The plaintiff will have established the necessary connection between the injury and his employment if he can establish “on the balance of probabilities that the act or omission of the employer was a cause of the injury”.[94]
[94] Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141 at paragraph [8] (emphasis added)
110Dr Saxby’s opinion of a causal link between the shoulder injury and overhead welding supports a finding that the overhead welding carried out by the plaintiff on or before July 2012 was ‘a cause’ of his shoulder injury, as the plaintiff was performing such work in July 2012. Dr Saxby’s opinion is consistent with the weight of the evidence, in particular Mr Timothy Gale and Mr Miller, both of whom placed importance on the performance of overhead welding work as contributing to the development of the injury.
111Treating surgeon, Mr Ash Chehata, diagnosed a “traumatic rotator cuff tear six years prior to when I saw him”, but did not provide a path of reasoning for this opinion.[95]
[95]PACB 45
112Orthopaedic surgeon, Mr David Slattery, also recorded a history of “overhead welding” and “working in confined spaces leading up to the development of shoulder pain”. Mr Slattery concluded that the plaintiff had “injured his right shoulder when he was employed as a welder doing overhead activities”.[96]
[96]PACB 74-76
113The weight of the evidence supports the plaintiff’s case. In particular, Mr Gale, Mr Miller and Dr Saxby all find a causal link between overhead duties and the development of the shoulder injury.
114I therefore find that the plaintiff’s employment in 2012 was a cause of the right shoulder injury, the consequences of which became prominent in 2016.
Identification of the impairment and its consequences
115There is no dispute on the evidence that in 2016, the plaintiff suffered a right rotator cuff tear for which he underwent a mini open repair at the hands of Mr Chehata.
(i) Medication and medical treatment
116The evidence shows that the plaintiff has undergone the following treatment for his right shoulder injury:
(a) between July 2012 and approximately December 2012, physiotherapy on the shoulder at the employer’s onsite provider “Bodycare”;[97]
(b) in or around February 2017, a cortisone injection into the right shoulder administered by Mr Matthew Evans;[98]
(c) on 14 June 2017, Mr Ash Chehata performed an arthroscopic rotator cuff repair on the plaintiff’s right shoulder;[99]
(d) post operative physiotherapy with Nathan Schiodtz,[100] as referred to in the report of Mr David Slattery;[101]
(e) in 2019, physiotherapy with Maryam Nabiei;[102] and
(f) on 6 July 2022, a cortisone injection into the shoulder.[103]
(ii) Plaintiff’s evidence about pain, impact on domestic and recreational activities, driving and chosen career
[97]PACB 6, first affidavit at paragraph [19] and DACB 170
[98]PACB 60
[99]PACB 42
[100]DACB 202
[101]PACB 77
[102]PACB 7, the first affidavit at paragraph [34]
[103]PACB 50 and PACB 55
117In his affidavits, the plaintiff deposed to the following consequences of the right shoulder injury:
(a) constant fluctuating pain in the right shoulder going down his right arm and elbow with a heavy feeling into the right hand, worse in the cold weather;[104]
[104]PACB 8, the first affidavit at paragraphs [49]-[50]
(b) use of the right arm is difficult;
(c) inability to lift above shoulder height with extreme pain into the right arm;
(d) prolonged sitting is a problem;
(e) brushing teeth can be difficult due to pain;
(f) changing a light bulb is difficult;
(g) limitations with respect to housework due to shoulder pain;
(h) inability to sleep on the side due to shoulder pain;
(i) long drives being affected due to shoulder pain;
(j) inability to return to his preinjury work as a welder;[105]
(k) significant, unremitting shoulder pain;
(l) struggling to do work in the garden;
(m) inability to enjoy sporting activities like golf, cricket and bike riding; and
(n) relationship with his children and his wife being affected.[106]
[105]PACB 8-10, the first affidavit
[106]PACB 13-15, the second affidavit
118In his viva voce evidence, the plaintiff said:
(a) he could not do any welding work at present and could not do anything continuously anymore as he gets pain;[107]
(b) continuous use of the right hand and prolonged sitting at a computer causes pain;[108]
(c) he takes Panadol about twice a week;[109]
(d) he does not have a set of golf clubs and last played golf in 2012 “for the company group” with borrowed golf clubs, and has never been a member of a golf club;[110]
(e) he continued to play cricket until 2016, consistent with the contents of the affidavit of Binu Mohan sworn on 13 January 2023, and he still takes pleasure in watching and following cricket;[111]
(f) he no longer goes bike riding with his adult children[112] and put his bike out on the street for collection; and
(g) when he said in his affidavit he avoids long drives, he meant long, twisty family drives.[113]
(iii) Expert evidence about pain, impact on domestic and recreational activities, driving and chosen career
[107]T30, L1-24
[108]T51, L19-31, T70, L12-15
[109]T52, L5-9
[110]T62, L1-11
[111]T35, L15-17 and PACB 22, the affidavit of Binu Mohan sworn 13 January 2023 at paragraphs [11]-[16]
[112]T62-63
[113]T64, L4-8
119In his March 2022 report, treating GP, Dr Syed R Huq, reported to the plaintiff’s solicitors that “[d]ue to ongoing pain he can not do any recreational and social activities like playing cricket or golf, can not participate in any domestic activities like household works … [f]ull recovery is expected but uncertain prognosis at this point due to ongoing pain”.[114]
[114]PACB 48
120In his November 2022 report, treating surgeon, Mr Ash Chehata, describes the plaintiff’s current condition as “intermittent flaring of the right shoulder, although he has almost full range of movement” and “his persistent ache and pain seemed to be on the milder side”.[115]
[115]PACB 55-56
121Orthopaedic surgeon, Mr Luke Spencer, provided a second opinion to the plaintiff’s treating GP, Dr Butuyuyu. In particular, he reported that the plaintiff’s pain “is problematic after long days of using a computer. It gets problematic if he has to lift heavier reams of stationary [sic] and if he has been using his shoulder a lot, he gets some discomfort at night”.[116]
[116]PACB 64
122Mr Spencer agreed with the recommendations of Mr Chehata that no further surgery be undertaken. He recommended massage, acupuncture and a further steroid injection for the pain.[117]
[117]PACB 65
123On 3 December 2021, Mr David Slattery (orthopaedic surgeon) reported to the plaintiff’s solicitors that the plaintiff:
“…has had ongoing symptoms in his right shoulder, and despite an MRI scan showing that his rotator cuff tear has healed, he has ongoing pain and difficulty with heavy lifting and overhead activities. He also remains significantly restricted in his ability to perform his preinjury leisure activities including cricket.
…
The prognosis is guarded due to the chronicity of his symptoms and the fact that he has ongoing right shoulder pain and stiffness ... it is likely he will have ongoing pain and stiffness for the foreseeable future as a consequence of the right shoulder condition…. he is unlikely to deteriorate further in the short or long-term.”[118]
[118]PACB 77
(iv) Inability to return to his chosen occupation as a welder
124All experts agreed the plaintiff cannot return to unrestricted pre-injury work as a welder.[119] Dr Saxby and Dr John Low both considered the plaintiff could not return to work as a welder at all.[120]
[119]PACB 45, 71, 88 and DACB 35, 48, 96, 168
[120]DACB 48 PACB 96
Findings on impairment consequences and impact on chosen occupation
125The plaintiff’s evidence was that from November 2013 onwards, he sought and obtained work as a welder but was unable to remain in any employment for any significant period of time. In particular, he was working on light duties, welding materials like aluminium, in the form of ‘light plates’. This was all ‘benchwork’, no work in confined spaces and avoiding heavy fabrication work.[121] The plaintiff said he commenced work at CEM but was unable to continue working because he could not do the overhead work.
“… they were giving me different types of work which – I was a highly skilled welder, they were very happy with me, but I could not do overhead welds continuously, then I stopped it”.[122]
[121]T28
[122]T29, L25-31
126The defendant did not dispute the plaintiff’s description of his level of skill as a welder.[123]
[123]T126 – T127
127The plaintiff had been a high-pressure welder, and was very skilled to undertake welding with metals such as copper nickel and stainless steel. He had trained for that work as a young man in his home country and continued performing that work in Australia until he was forced to cease it due to his shoulder injury. I accept the plaintiff’s evidence that his skills were highly sought after.[124]
[124]T66 – T67
128The weight of the evidence supports a finding that the plaintiff can never return to his chosen career of welding. Although he is working as a self-employed newsagency owner, if his circumstances change, a return to unrestricted welding work is not possible for him. This is a very considerable consequence.[125]
[125]Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 per Ashley JA at paragraph [25]
129The treating doctors all accept that the plaintiff has constant pain of varying intensity. The restrictions imposed on heavy lifting and overhead work all suggest some impact on his daily activities. His pain and restrictions were significant enough for him to seek a second opinion from Mr Luke Spencer, who recommended further treatment in the form of acupuncture, massage and further steroid injections “as he does have some impingement or crepitus”.[126]
[126]PACB 65
130The clinical findings by Mr Spencer of impingement or crepitus and recommendations for further treatment provide general support for the plaintiff’s evidence that:
(a) he avoids lifting items heavier than 1-2 kilograms and if he does lift anything heavy, he experiences flare up of pain in the shoulder;[127]
(b) he experiences shoulder pain and is restricted in his ability to garden and uses his left hand to perform manual gardening tasks;[128] and
(c) he experiences sleep disturbance if he rolls over onto his right shoulder.[129]
[127]PACB 13, the second affidavit at paragraphs [18]-[19]
[128]Ibid, at paragraphs [20]-[21]
[129]PACB 14, the second affidavit at paragraph [22]
131I am satisfied that the plaintiff has made out, on the balance of probabilities, an inability to return to his chosen career due to ongoing pain and restrictions which include inability to lift items heavier than 1-2 kilograms, pain associated with gardening and lifting, and disturbed sleep.
132When I take these matters into account together with the need for surgery and consequent limitations on movement, the injections, the physiotherapy, intermittent pain and the need for treatment into the future, I am satisfied that his pain and suffering consequences meet the test of “very considerable” and I grant the plaintiff leave to commence proceedings for pain and suffering damages.
Economic loss
(i) The gross income from personal exertion of the plaintiff
133As stated above, the plaintiff is currently working in his own business as owner operator of a Newsagency/TattsLotto outlet in Warracknabeal (“the newsagency business”).[130] He purchased the business, together with the building, using a loan facility with a security over his home in October/November 2019 for $320,000.[131]
[130]T13, L6-7
[131]T43, L7-13
134The business employs three part-time staff members.[132] The plaintiff works in the business as manager. He has learned a variety of new skills, for example:
(a) to operate the financial software “Xero”;
(b) to manage staff;
(c) to purchase stock; and
(d) to manage customer transactions.[133]
[132]T42, L1-10
[133]T69 – T70
135The plaintiff initially worked from 6:30am to 5:00pm each weekday, with breaks. Nowadays he starts at 9:00am and finishes at 12:00pm, returns at 3:00pm and remains to closing time.
136The plaintiff lives in Warracknabeal during the week in a rented unit. At the end of his working week, he drives 350 kilometres to Melbourne to spend time with his family and returns to Warracknabeal on Tuesdays.[134] The plaintiff told the Court that he intends to continue operating the business for the next three to five years
[134]T40 – T41
137The newsagency business accounts are operated by means of a Unit Trust “The Divine Draws Unit Trust”. No taxation returns associated with this trust are in evidence, nor is there a trust deed.
138Profit and loss statements for the Unit Trust for the period 1 July 2019 to 30 June 2022 are in evidence:
(a) The first profit and loss statement is dated 1 July 2019 to 30 June 2020.[135] It shows a total income of $319,967. After deduction of expenses, including wages and salaries, there was a net profit of $82.[136]
(b) The second profit and loss statement is dated 1 July 2020 to 30 June 2021. Total income for the period was $338,399. After deduction of various expenses and running costs (including a purchase adjustment of $130,644), the business produced a net loss of $116,275 for that year.
(c) The most recent profit and loss statement of the Unit Trust is dated 1 July 2021 to 30 June 2022.[137] It shows that the total income for the business was $404,088. After deduction of various expenses and running costs (including a “purchase adjustment” of negative $202,063), the business produced a net loss of $12,426 for that year.
[135]PACB 104
[136]PACB 105
[137]PACB 107
139Each year, the profit and loss statements disclose “interest” as an expense. In 2021/2022 the interest figure is $16,455. It is not clear on the evidence what the figure represents but given the plaintiff’s evidence that he purchased the building and business using a loan facility, it likely represents interest on the loan.[138]
[138]T44, L1-9
140Aside from the 2019/2020 financial year when the net profit of the business was $82, the business has run at a loss. Senior counsel for the plaintiff submitted that there were no tax returns of the business as “he hasn’t had a taxable income sufficient to warrant a return”.[139]
[139]T6, L26
141The plaintiff gave evidence that the business is doing “okay”, and he was pretty happy that he had purchased it as it turned out to be a pretty good investment.[140] The plaintiff conceded that although the business has been running at a loss and he has not had to pay tax, he has still managed to “live off the business and feed (himself) and run his cars”.[141]
[140]T42, 26 and T45, L5
[141]T49
142Despite the losses which appear on the profit and loss statements, the plaintiff intends to remain in the business and continue operating it. He is purchasing an asset and generating goodwill. From his perspective, there is something of value in it or he would not have been commuting from Warracknabeal to Melbourne and back for the last three years.
143The plaintiff told the Court that last year, he travelled to India with “business friends” scoping for business opportunities. His role in the trip was providing assistance to them to work out the financial aspects of such opportunities.[142]
[142]T55 – T56
144Taking into account all of the evidence about the business and the plaintiff’s preparedness to seek new business opportunities, I find the plaintiff has not established that his loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments, can be fairly described as being more than significant or marked or at least very considerable.[143] The reason for this is because the plaintiff has been able to purchase and maintain repayments of a business asset, learn new skills including maintenance of business accounts, stock and takings, employment and management of staff, and has even ventured with friends towards further business opportunities in India. This shows a level of optimism and potential for growth and opportunity in his newfound economic circumstances which, on one view, exceed the long term financial prospects and opportunities of an employee welder.
[143]The Act, s134AB(38)(c)
(ii) Findings on the plaintiff’s current earnings
145The onus is on the plaintiff to lead evidence which establishes the necessary 40 percent loss of earning capacity.
146In relation to the profit and loss statements and what could be made of them, senior counsel for the plaintiff conceded that the plaintiff was purchasing an asset and this purchase appears to have formed part of the financial structure of the business. In particular, senior counsel conceded that the plaintiff could not, in reliance on those documents, “quantify exactly what the loss is”.[144]
[144]T143 – T144
147In the absence of evidence, and in particular evidence explaining the profit and loss statements, it is not possible for the Court to make findings about what they do or do not demonstrate with respect to the plaintiff’s current earnings.
148There is no evidence about what a salaried employee performing the duties the plaintiff is performing in the business could earn.[145]
[145]T145
149Accordingly, despite the fact that the plaintiff is actively working in his own business and has been since 2019, I cannot determine what the plaintiff is currently earning from personal exertion in the newsagency.[146]
[146]The Act, s134AB(38)(f)(i)(A)
150I can, however, consider what he is “capable of earning in suitable employment”,[147] and compare that to the gross income from personal exertion as most fairly represents the plaintiff’s without injury earning capacity.[148]
[147]The Act, s134AB(38)(f)(i)(B)
[148]The Act, s134AB(38)(f)
(iii) The plaintiff’s without injury earning capacity
151I have accepted that after he injured his right shoulder at work in July 2012, the plaintiff worked on “light duties” until his redundancy. For the purposes of section 134AB (38)(f)(ii) of the Act, the three year period prior to the injury is July 2009 to July 2012 and the three year period after the injury is July 2012 to 2015.
152In the financial year ending 30 June 2012 (only two days before he was injured), the plaintiff earned $87,369.[149] This amount most fairly represents his without injury earnings, although in previous years he had earned less.
[149]PACB 99 and T92, L14-16
153In his opening address, senior counsel for the plaintiff referred to a figure of $88,019.88,[150] but it is not clear on the evidence, from where this figure is derived.
[150]T5, L9-15
154The difference between the positions of the two parties is immaterial. I accept the defendant’s submission that $87,369 is the correct figure which most fairly represents the plaintiff’s without injury earning capacity.
155The 60 per cent figure is therefore $52,421 per annum or $1,008 per week, not $52,511 or $1,015 weekly, as submitted by senior counsel for the plaintiff.[151] Nothing, however, turns on this difference.
[151]T5, L1-16
156Counsel for the defendant submitted the plaintiff could perform a number of jobs and the plaintiff conceded in his evidence that he could do so.[152]
[152]T94, L11-16
157Senior counsel for the plaintiff conceded that if I find he has capacity to perform those jobs, then the plaintiff has not made out the necessary loss of earning capacity.[153]
[153]T112, L20-31
158In particular, the following jobs were put to the plaintiff:
(a) mobile safety camera operator;[154]
(b) warehouse clerk; and
(c) hire controller.
[154]DACB 117
(iv) Mobile safety camera operator
159The physical demands of this position are provided as follows:
(a) standing and walking;
(b) overhead reaching to pull closed a rear hatch of a vehicle (the left hand can be used instead of the right);
(c) incidental bending;
(d) sitting in the vehicle between two to five hours;
(e) driving for up to one hour; and
(f) keyboard data entry and occasional handwriting.[155]
[155]DACB 117-118
160The demands of the position clearly fit within the restrictions provided by the experts who have assessed the plaintiff. In particular, Dr Low, the occupational physician, provided the following restrictions:
(a) permanently precluded from performing any regular overhead manoeuvres;
(b) confined to sedentary based work with avoidance of any regular manually demanding work;
(c) avoidance of lifting greater than 5 kg; and
(d) avoidance of repetitive upper limb tasks for periods greater than 10 minutes.[156]
[156]PACB 96-97
161In cross-examination, the plaintiff was asked whether he could do this job. The plaintiff told the Court “I can do it, but they’d have to train me … whether they would give me the job, that’s a different story.”[157]
[157]T39, L1-10
162The plaintiff agreed that when he started the newsagency, the previous owners spent two months training him and if he received training to do the speed camera job, he could do it.[158]
[158]T39, L23-26
163Dr Low considered that the mobile safety camera operator position was not wholly sedentary based, but it is unclear on what basis he made this finding. It is also not clear why Dr Low considered that the plaintiff only had capacity to trial reduced hours performing sedentary based work, given Dr Low recorded a history that the plaintiff was working full-time.[159]
[159]PACB 93
164I find the plaintiff has capacity and is able to retrain to perform the mobile safety camera operator position which pays $1,502 per week or $78,104 annually. This is above the 60 per cent threshold.
(v) Warehouse administrator
165The physical demands of this position are as follows:
(a) standing and walking around once per 20 minutes, on average;
(b) sitting typically for no longer than 20 to 30 minutes;
(c) standing to affix labels to boxes;
(d) bilateral hand using keyboard and mouse;
(e) numerical data entry; and
(f) no manual handling.
166The plaintiff agreed he could do this job if someone taught him how to do it.[160]
[160]T39, L29-31
167The physical demands of the job fit within the restrictions provided by the occupational physician, Dr Low, who agrees the plaintiff probably does have capacity to perform this job, however on reduced hours. It is not clear from Dr Low’s report why he has imposed such a restriction on the plaintiff.
168I find the plaintiff does have capacity to retrain and to perform the job of warehouse administrator. Despite his background in a blue-collar trade, the plaintiff has managed to retrain to work in his newsagency business. He is acting as business manager, ordering stock, and dealing with customers. He has learned accounting software, how to manage staff, and the business accounts. I find he has both the ability and experience in stock handling that he could perform the job of warehouse administrator. This position pays $1,541 which is also above the 60 per cent threshold.
(vi) Hire controller
169The plaintiff agreed he had the intellectual and physical capacity to perform the hire controller position.[161] This is an administrative position with a focus on customer service. The physical demands of the job include:
(a) working at a sit/stand desk using a standard keyboard and mouse (90 per cent of the workday is desk or office work);
(b) monitoring inbound telephone calls and emails to manage requests for equipment hire;
(c) no manual handling other than papers, files and binders which do not exceed 2-3 kilograms in weight;
(d) walking to warehouse or similar area to inspect equipment; and
(e) no requirement to drive, operate or climb onto the equipment.[162]
[161]T37 – T38
[162]DACB 112-114
170Dr Low considered that the position of hire controller may allow for sedentary based work and is therefore suitable and within the plaintiff’s physical restrictions.[163] Dr Low’s report suggests the plaintiff has capacity to trial reduced hours, but there is no basis in the report for this limitation. Given the plaintiff was at that time working full-time hours in the newsagency business and is now working similar hours (with some breaks), the limitation does not accord with reality.
[163]PACB 98
171The position of hire controller provides a base wage of $70,000 or $1,346 per week, which is also above the 60 per cent threshold.
172Senior counsel for the plaintiff submitted that despite the fact that the plaintiff accepted he could perform the jobs put to him (with retraining), I ought nevertheless find he could not do so. The basis of the submission was that Richter v Driscoll[164] makes it clear that I have to take into account the entirety of his circumstances including his age (52), his Form 5 education in India, and his previous work experience being limited to being a welder,[165] and if I did so, I would not be satisfied he could in fact do those jobs.
[164][2016] VSCA 142
[165]T112 – T113
173I reject that submission. As stated earlier in this judgment, I find the plaintiff to be a very intelligent and extremely capable man. He has managed to retrain himself and become familiar with running a business and is even venturing to new business opportunities, despite the asserted limitations of his prior educational background and work experience. Given his achievements thus far, I am satisfied that he would also be able to retrain and perform the jobs set out above.
Conclusion
174I am satisfied that the plaintiff has made out on the balance of probabilities that the consequences to him of the right shoulder injury at work are very considerable and I grant the plaintiff leave to commence proceedings for pain and suffering damages.
175I find the plaintiff has not made out that he has suffered an economic loss of 40 per cent or more. To his credit, he has retrained himself and invested in a newsagency business. He is working and managing that business, and, on his own evidence, he is doing well in that endeavour. He does however retain a residual capacity to retrain and work in three different positions, all of which would place him above the 60 per cent threshold.
176Accordingly, I dismiss the plaintiff’s application for leave to commence proceedings for economic loss damages.
177I will hear the parties with respect to costs.
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