Mansfield v VWA
[2020] VCC 1588
•9 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05717
| CRAIG MANSFIELD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 August 2020 | |
DATE OF JUDGMENT: | 9 October 2020 | |
CASE MAY BE CITED AS: | Mansfield v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1588 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: serious injury – pain and suffering and loss of earnings – acute traumatic hearing injury – development of tinnitus – range – unreliability of plaintiff’s income reporting – suitable employment – evidence of work hardening
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Acir v Frosster Pty Ltd [2009] VSC 454; Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33; Browne v Dunn (1893) 6 R 67; Carbone v Toyota Motor Corp Australia Ltd [2017] VSCA 249; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Hayhill Pty Ltd v Hodge [2006] VSCA 194; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; HuntervTransport Accident Commission [2005] VSCA 1; Jovceva v Transport Accident Commission [2019] VSCA 105; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sheridan v Victorian WorkCover Authority [2019] VSCA 54;
Judgment: Leave granted for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Ms A Ryan | Zaparas Lawyers |
| For the Defendant | Ms M Tsikaris | Wisewould Mahoney |
HIS HONOUR:
1 The plaintiff’s Originating Motion dated 27 November 2019 sought the grant of a serious injury certificate for leave to bring proceedings for pain and suffering and pecuniary loss damages in accordance with the provisions of s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) for injuries he sustained to his ears and/or consequential psychological injuries suffered in the course of employment with Bundoora Radiators Service. He was represented by Mr J Brett QC with Ms A Ryan of counsel. The defendant was represented by Ms M Tsikaris of counsel.
2 At the commencement of the hearing, Mr Brett advised the Court that his client no longer pursued the claim under limb (c).
3 The impairment of body function relied upon is that of hearing.
Relevant legal principles
4 The Court must not give leave unless it is satisfied, on the balance of probabilities, that the “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.
5 Paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act reads:
“Serious injury means –
(a) permanent serious impairment or loss of a body function; … .”
6 To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
(a)“the injury” suffered by him arose out of or due to the nature of his employment with the employer;
(b)“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[1]
(c)the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[2]
[1]Barwon Spinners Pty Ltd & OrsvPodolak [2005] VSCA 33 at [33].
[2]Section 325(2)(c) of the Act.
7 The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
8 In determining the “consequences” of the injury, the Court is also required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.
9 In determining the application, the Court:
(a)must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[3]
(b)must assess whether “the injury” is a “serious injury” as at the time the application is heard;[4]
(c)must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[5]
[3]Section 325(2)(h) of the Act.
[4]Section 325(2)(j) of the Act.
[5]See generally HuntervTransport Accident Commission [2005] VSCA 1 at [23]-[26].
10 The physical and psychological consequences of an injury must be separated and each assessed individually to determine whether an injury is a serious injury.[6] Accordingly, when assessing whether the physical component of the injury is a serious injury, the Court must exclude from consideration pain and suffering consequences that do not have an organic basis. The onus is on the plaintiff to establish an organic (rather than psychological) basis for an impairment on the balance of probabilities.
[6]Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649 at [9].
11 The question of whether an injury satisfies the narrative test is largely a question of impression.
The evidence
12 The plaintiff relied on the following evidence:
Lay evidence:
· Affidavit of the plaintiff dated 10 June 2019.[7]
[7]Exhibit P1, Plaintiff’s Court Book (“PCB”) 1-8.
Treating medical evidence:
· Report of Jamie Priestly dated 26 October 2015[8]
[8]Exhibit P2, PCB 9.
· Report of Dr Manish Bhasin dated 16 April 2018[9]
[9]Exhibit P3, PCB 10-11.
· Report of Greg McCracken dated 20 July 2019[10]
[10]Exhibit P4, PCB 12-13.
· Report of Dr Leonid Gankin dated 4 June 2020[11]
[11]Exhibit P5, PCB 14.
· Report of Hugh Millar dated 27 August 2018[12]
[12]Exhibit P8, Defendant’s Court Book (“DCB”) 14-19.
· Medical Panel Opinion and Reasons dated 6 March 2019[13]
· Report of John Redhead dated 14 August 2019[14] and 18 November 2019.[15]
[13]Exhibit P9, DCB 20-31.
[14]Exhibit P10, DCB 32-37.
[15]Exhibit P10, DCB 38.
Medico-legal reports:
· Report of Malcolm Baxter dated 25 May 2020[16]
[16]Exhibit P6, PCB 21-25.
· Report of Dr Nicholas Ingram dated 22 May 2020[17]
· Financial records: Mansfield Incomplete Payroll Records dated 8 February 2013 to 22 May 2015.[18]
[17]Exhibit P7, PCB 17-20.
[18]Exhibit P11.
13 The defendant relied on the following evidence:
Treating Medical evidence:
· Report of Dr Stephen Stern dated 24 August 2018[19]
[19]Exhibit D1, DCB 5-13.
· Reports of Associate Professor Umberto Boffa dated 20 August 2019[20] and 23 December 2019.[21]
[20]Exhibit D2, DCB 39-42.
[21]Exhibit D2, DCB 43-46.
Vocational reports:
· Recovre – Suitable Employment Report dated 30 August 2019.[22]
[22]Exhibit D3, DCB 47-77.
Pre-existing treating medical reports:
· Reports of Lucy Flood dated 10 July 2012[23] and 21 August 2012.[24]
[23]Exhibit D4, DCB 78.
[24]Exhibit D4, DCB 79-80.
Clinical notes:
· Beach Street Family Medicine Records[25]
[25]Exhibit D5, DCB 81-85.
· Advantage Medical & Dental Records[26]
[26]Exhibit D6, DCB 86-121.
· The Hastings Clinic Records[27]
· Greg McCracken Records.[28]
[27]Exhibit D7, DCB 122-125.
[28]Exhibit D8, DCB 126-144.
Financial records:
· Tax Return of Mansfield Trust.[29]
[29]Exhibit D9.
14 In arriving at my decision, I have had regard to all of the tendered evidence as well as the plaintiff’s cross-examination and re-examination, together with the addresses of counsel.
The injury
15 The occurrence of the injury was not contested by the defendant. The plaintiff said that on 19 August 2015 at 7.30am he opened the workshop of the defendant where he had been employed since 2012 and commenced his duties. Around 9.30am, Ray Skewes, from Ray Skewes Automatic, brought in a fuel tank and requested that the fuel tank be repaired that day. The plaintiff was shown where the leak was thought to be. The plaintiff was repairing a truck radiator and was using a butane torch. The fuel tank was about 1.5 metres away from him and while soldering a car radiator, he was able to see a fume was heading towards the fuel tank. The fuel tank exploded. He was alone in the workshop and said he was unable to contact his boss and so he went home as he was in shock.
16 He began to immediately experience pain in his left ear. This continued, along with the constant buzzing in his ear. He had hoped that the pain would settle. He returned to work. It did not settle.
17 The plaintiff first consulted his general practitioner, Dr Manish Bhasin of “Advantage Medical and Dental – Hastings”, on 31 August 2015. He explained the accident and the presence of tinnitus. He said his general practitioner advised him to get some counselling as soon as possible. On 17 September 2015 he again consulted his general practitioner. An audio logical test was undertaken, which showed hearing loss in the left ear, more than the right. He was referred to an ENT surgeon, Mr James Priestly, and was told to use a spray as it might help alleviate the severity of the tinnitus. It did not. Mr Priestly advised the plaintiff to have an MRI scan and to then be reviewed. The plaintiff did not return to see Mr Priestley.
18 The plaintiff likened his condition to the sound of cicadas in his ear. He said the tinnitus is subject to exacerbation by noise and is extremely debilitating. It can be so bad that he has to lay in bed all day, and this affects his ability to care for his son, who suffers from autism. The plaintiff is a single father. Evidence indicates a history of a toxic parenting relationship that has involved family court and custody matters. These events have no doubt taken their emotional toll on the plaintiff, a fact that is evident from some of the reporting by specialists.
19 The plaintiff said he struggles to sleep and often wakes up throughout the night, and the resulting tiredness and a lack of sleep compounds his stress and symptoms. There is an historical account of sleep issues before the accident, and connected with personal issues, but it appears to have been different and presented itself in the guise of excessive sleep as opposed to interrupted sleep.
20 The plaintiff described how being in confined spaces can increase his symptoms of ringing and tinnitus in his left ear.
21 The plaintiff has become depressed. He said he can become short tempered and aggressive, not with people, but directed at inanimate objects. He has reported suffering from suicidal thoughts. He apparently jumped in the water on one occasion in 2017 in an attempted suicide. He has said in his affidavit that he finds himself considering suicide on a weekly basis. He attends a psychologist, Mr McCracken, on a fortnightly basis.
22 After ceasing employment with the defendant, and in 2016, the plaintiff purchased his own radiator repair shop in Hastings. It closed down in December 2017. He said he has not returned to work since then. That account seems to be incorrect because he is recorded as having told Dr Malcolm Baxter, who prepared a report for the plaintiff’s solicitors, that following the closure of the radiator repair shop in Hastings, he had two weeks working for a firm building generators, but that he gave it up because of the requirements of travelling, and of noise, and it appears that it is from then that he has not worked.[30] Nothing of importance turns on this.
[30]Exhibit P6, PCB 22.
23 In terms of treatment for his physical condition, he last consulted Dr Bhasin in January 2016.
24 In the past the plaintiff described a normal but uneventful life. He enjoyed video games and played the guitar, but is no longer able to pursue these activities. He said he has not played the guitar since the injury.
Occupational History
25 He was born and educated in Victoria and left school at the age of 17 and did a variety of jobs. He worked on a tow truck for a while and for Tip Top Bakery delivering bread for six months, and later on for a further period of a year. He worked briefly for two years as an owner driver for Ace Car Freights and as a System Manager for the IM Panels from 1996 to 2008. Most of his work has been working for Bundoora Radiator Services. He worked there on an off over three main periods from 1993 to 1996, 2008 to 2010 and 2012 to the date of the incident in 2015.
Past medical history
26 Generally before his injury the plaintiff appears to have been well. He had a left knee operation in the past and has been concussed twice but without serious consequence.
Personal history
27 The plaintiff told Dr Ingram, psychiatrist, to whom he was referred by his solicitors, that generally his mood had been good in the past, though he had an episode of depression in his mid-twenties following lead poisoning. He was unaware of any family history of psychiatric illness and his physical health had previously been good. His father had been a “career criminal” and his mother had been unable to handle five children and, therefore, as the youngest, he had been raised by his grandparents from an early age and said that he had had an “awesome” childhood, having been very close to his grandparents. He had gone to a technical school where he had been good at maths and “hands on” subjects and he had left after Year 11 and had then usually worked in radio repairs or spare parts. He had married for the first time at twenty-one and this had lasted for six years and he had a 32-year-old daughter from this marriage, though they were no longer in contact. He had married again at the age of thirty and he had two children from this relationship, a daughter twenty-two and a son aged twelve, and he said he had enjoyed being a father and was close to these younger two children. He said he had been a funny, outgoing and friendly person, whereas now he no longer wanted to talk to anyone at all. He felt uncertain about the future and just wanted the problem in his head sorted out.
28 He told Dr Ingram that his marriage had ended after his accident, largely because of the changes in him, and that initially he had spent some months just in bed doing nothing, and also because his personality had changed because of the noise and the effect that this had had on him. Prior to the accident he had gone out on a regular basis and had enjoyed listening to music and working on cars, all of which he had to give up. He was living with his autistic son, though his son’s mother had taken custody of him in February and he had not had access to him since then, though he was trying to regain custody.
29 Dr Ingram reported that the plaintiff had been living with a female friend for about four years, who had acted as something akin to a carer and she had done all the cooking and cleaning and helped look after him. He said that this arrangement had been working out well and he had got on well with this woman. Apart from this, however, he said he had little else in his life. He had sometimes walked down to the beach in the morning and then he would have a sleep during the day, and whilst his son had been with him he had cared for him, though a lot of his time had been preoccupied with trying to minimise the sound in his ear. He had been able to do some gardening and he had also played chess on his phone several times a day, and he had occasionally seen friends, though this had been recently less frequent. He had seen one woman and had an occasional sexual relationship with her, though he said his libido had diminished significantly since the injury and a lot of the time he could not be bothered to make the effort to see her.
30 Dr Ingram reported the plaintiff having said the noise in his ear had been “driving me crazy”. He said that he had felt anxious for a lot of the time and had just wanted some peace, but it had not been possible to achieve, because of the pain. He had episodes two or three times a week that lasted for a few minutes, often precipitated by loud noises, when he experienced palpitations and heavy breathing and his mind racing.
31 The plaintiff had described feeling depressed for most of the time and said that he had only been able to enjoy things sporadically, whereas in the past he had loved life. There had been a significant loss of motivation, and he had lost interest in previous activities and he had been more withdrawn than in the past, and had been tearful nearly every day. He had often felt hopeless as though life had not been worth living, and he had had suicidal thoughts, though had not felt that he would act on these because of his children.
32 His energy levels had generally been reduced and there had been problems with his memory and concentration, and he found it harder to play his chess games than previously.
33 Dr Ingram reported the plaintiff’s main physical problem had been constant noise in the left ear, associated with a loss of hearing. The intensity of the noise had fluctuated and had been better if he had been actively talking to someone, but it had never fully gone away and had been made much worse by loud external noises, such as a motorbike riding by. The only time he had obtained real relief from the noise was if he went snorkelling. He had tried to have special hearing aids that released a noise, which it had been hoped could neutralise his tinnitus, though these had been of little value, but sometimes listening to music had been a distraction.
34 As to his level of activity, the plaintiff told Dr Ingram that a year or so after the accident he had bought a radiator shop that was being sold cheaply, and he had worked at it for one-and-a-half years and had been able to make a little money, but his tinnitus had slowly worsened and he had found it increasingly difficult to concentrate, and in the end he had to give the business away and he had not worked for the last two years.
35 Dr Ingram thought that the plaintiff’s main problem was his tinnitus and it seemed there was not much else to be done to treat it. Psychologically he thought he had become significantly depressed and anxious as a result of the tinnitus and was having difficulty pushing it aside.
36 Dr Ingram thought that in regard to work, the plaintiff’s limitations are largely related to his tinnitus and he thought that if he could find a job that he could cope with from the point of view of his hearing problem, then he would be able to manage work from a psychological perspective.
37 He thought the plaintiff’s prognosis of depression largely depended on the prognosis for his tinnitus.
38 Dr Ingram considered it highly unlikely that the plaintiff would be able to manage any of the jobs listed in the suggested employment report prepared by Recovre as a result of his tinnitus, which would be made worse by external noises, but assuming that his tinnitus was controlled, he would be able to perform them from a physical perspective, and he considered that he would be able to manage them from a psychological perspective, at least on a part-time basis.
Medical Panel
39 A report was provided by the Medical Panel, dated 6 March 2019. The Panel felt that the plaintiff was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood largely in response to his constant tinnitus.
Report from Dr Malcom Baxter
40 Dr Baxter is a Otolaryngologist and in a report prepared for the plaintiff’s solicitor dated 25 May 2020,[31] wrote that he had been provided with:
[31]Exhibit P7.
· Affidavit of plaintiff sworn 10 June 2019
· Medical report from Jamie Priestly dated 26 October 2015
· Audiology report from Richard Anderson dated 3 September 2015
· Audiology report from Diane Smith dated 8 December 2015
· Medical report from Dr Manish Bhasin dated 16 April 2018
· Vocational reports
· Recovre Suitable Employment Report dated 30 August 2019
· Medical Panel Opinion dated 6 March 2019.[32]
[32]Exhibit P6, PCB 21-22.
41 Dr Baxter wrote that since the injury the plaintiff has suffered from intractable tinnitus in the left ear which is continuous and fluctuates in severity, and is akin to “cicadas”. He said the plaintiff had been fitted with masking hearing aids but these had only been of limited help. The noise is something that occupies his mind all the time and he has trouble coping with it. It interferes with his sleep significantly and he only gets three hours a night of sleep. The estimate of sleep reported by Dr Baxter is recounted differently from the account given by the plaintiff to the Medical Panel, which reported that “he is frequently woken by the tinnitus but occasionally can sleep for up to 12 hours”.[33] I see this more as a difference in description than of substance.
[33]Exhibit P9, DCB 24.
42 Mr Baxter reported that the tinnitus interferes with the plaintiff’s relationships because his memory is poor and he cannot concentrate on what people are saying to him because of the noise. He finds that a fan is the best form of masking device. He had apparently attempted going to the country, but this made the tinnitus worse because of the silence. When he is not around a fan, he is best in low-grade ambient noise.
43 Mr Baxter reported that the plaintiff cannot hear much on the left and has trouble with conversation. He cannot use the television and has to use the telephone on the right ear.
44 I observed the plaintiff in the course of the remote e-hearing of the application in which he was cross-examined for more than two hours and he encountered no apparent hearing difficulty. This observation of the plaintiff’s ability is not surprising because his loss of hearing has been assessed as minimal. Indeed Mr Baxter said:
“The hearing loss in itself is relatively mild and the associated tinnitus is the main factor which is causing significant problems for him. Of course, tinnitus is a purely subjective phenomenon which cannot be measured; however, his descriptions seem consistent.”[34]
[34]Exhibit P6, PCB 25.
45 Mr Baxter reported that audiograms were performed in December 2015 by “Melbourne Audiology Centre”, 3 September 2015 by “Zail Hearing Care” and by “Neurosensory” dated 22 January 2019. These studies showed a bilateral high tone sensorineural hearing loss with significant asymmetry, the left being the worst. A further audiogram was arranged by Mr Baxter on 21 May 2020 at the Melbourne Audiology Centre with a different audiologist. This again showed a bilateral high-tone sensorineural hearing loss with significant asymmetry, the left being worse. He had a Type-A tympanogram on the right and Type C on the left.
46 Mr Baxter assessed the plaintiff as suffering acoustic trauma causing ongoing left-side hearing loss and tinnitus. He considered that the plaintiff’s employment with Bundoora Radiator Service was a direct cause of development of his injury and that he has intractable and very disturbing tinnitus on the left ear with hearing loss.
47 Mr Baxter did not believe that the plaintiff’s tinnitus and hearing loss would improve. He observed that hearing loss deteriorates with age and it is likely that because of his injury that this ordinary deterioration will probably progress earlier in the plaintiff than it would normally.
48 When asked to strip away any other physical conditions and/or any psychiatric condition, and whether as a consequence of the plaintiff’s injury on its own he is likely to be precluded or restricted in relation to employment, and if so the extent of the incapacity, and whether the incapacity will continue for the foreseeable future, Mr Baxter considered that because of the injury with the hearing loss and tinnitus, the plaintiff is incapacitated in any employment which will involve exposure to significant noise and this will continue indefinitely.
49 Mr Baxter wrote that the hearing injury with tinnitus precludes and restricts his social, domestic and recreational activities in that he can no longer play his guitar or listen to music, and he finds socialising with friends difficult. There was a somewhat odd reference included in Mr Baxter’s report and it is that “[H]e has not given up on his use of his family’s boat”.[35] Mr Brett submitted I should treat the reference as an error. Ms Tsikaris decried the submission and said if the entry is wrong, then the plaintiff had the opportunity to correct it and he did not. I accept it was not corrected, but it also strikes me that, on balance and contextually, Mr Brett’s analysis of what is written is to be preferred.
[35]Exhibit P6, PCB 25.
50 The plaintiff told Mr Baxter that he did not close his radiator repair shop business because of an inability to cope with noise and that, indeed, it was not particularly noisy and he only worked in the office as opposed to the shop floor, but rather because the business was not a financial success and he closed if after about 18 months. This account is different from that provided by the plaintiff to Dr Ingram. When cross-examined, the plaintiff explained his involvement in the work of the business thus:
“Yeah, because, because I wasn’t doing anything and I'm paying other people to do it, why should I – I wasn’t getting anything out of it myself. I was just paying other people to do my work because I couldn’t do it. Simple as that.”[36]
[36]Transcript (“T”) 43.
51 Despite the differences in accounts, the plaintiff’s evidence that he was paying others to do the work because he was unable to do so is relevant.
52 Mr Baxter commented on the Recovre Suitable Employment Report dated 30 August 2019,[37] which listed the following jobs as suitable employment:
·crossing supervisor
·traffic controller
·meter reader
·picker.[38]
[37]Exhibit D3.
[38]Exhibit D3, DCB 48.
53 Mr Baxter said he had examined the descriptions of the occupations and believed that a crossing supervisor and a traffic controller would both expose the plaintiff to traffic noise, which at times may be quite loud, and adjacent to him, and this would make the work impossible. He considered that work as a meter reader might be satisfactory in itself as it would not be inherently noisy, however, he may be exposed to traffic when driving round to people’s houses to read their meters. With respect to the picker job, which he understood to be a warehouse type of job, he thought that it would depend on the level of any background noise. He thought that if he was to be exposed to forklift noise or other machinery that was noisy, it would preclude him from doing such a job.
54 Despite the very limited circumstances in which Mr Baxter considered the plaintiff might be able to work because of noise, he reported that any occupation would probably be suitable for the plaintiff as long as it did not expose him to loud noises and did not require good hearing but, if he did commence any of these jobs, he should do so on a part-time basis, half time, working up to full time, and he would need to be kept away from loud noises. He said it would not be suitable for the plaintiff to work with hearing protection in the form of earplugs or earmuffs, as these would inevitably make the tinnitus worse whilst he is wearing them and increase his symptoms.
55 Mr Baxter’s report recognised that whilst tinnitus is a purely subjective phenomenon which cannot be measured, nonetheless, he considered the plaintiff’s descriptions as consistent with the condition.
Report from Dr Manish Bhasin
56 Dr Bhasin, general practitioner, prepared a report for the plaintiff at the request of his solicitors dated 16 April 2018.[39] He wrote that the plaintiff first presented to him in relation to a workplace injury on 31 August 2015 and, in addition, the plaintiff had also related that he had been unhappy at his work for several years, and had felt overworked, and that he had been hoping his boss would retire and subsequently he would be able to buy the business. The plaintiff acknowledged this account as true under cross-examination.
[39]Exhibit P3, PCB 10-11.
57 Dr Bhasin also referred to a significant past history of anxiety and depression that had gone untreated.
58 Dr Bhasin saw the plaintiff on 7 September 2015, by which time audiology results showed hearing loss in the left ear more than the right, and hence he was sent to ENT specialist, Mr Jamie Priestly. He was seen by Mr Priestly in October.
59 By December 2015, Dr Bhasin recorded the plaintiff’s epicondylitis of the left elbow had resolved, although his tinnitus still was an issue and he was seeking assistance from Centrelink. He mentioned that the plaintiff’s payments were due to cease from February 2016 and he was planning to go and start his own business or look for a new desk-based job, as he was not going to go back to his old work, as he felt the noise could make his tinnitus worse. Dr Bhasin’s account prefaced the plaintiff having opened his own radiator business.
60 Dr Bhasin said he last saw the plaintiff in January 2016.
Dr Jayatilaka
61 Dr Jayatilaka, general practitioner at the Beach Street Family Medicine Clinic, provided historical medical care to the plaintiff. The plaintiff was cross-examined on certain of Dr Jayatilaka’s clinical notes. These included references to many matters and touched upon his past attendance on a psychologist, separation from his wife, her associated drug use, his poor sleep at the time, and anger and depression. Clinical notes identify that by the end of 2011 the plaintiff was sleeping too much and a Mental Health Plan from August 2012 prepared by Ms Flood, psychologist, referred to the plaintiff’s marital problems. A clinical note of entry from 22 January 2016 reflected the plaintiff expressing an improved ability to manage and a desire to commence his own business, and that he felt generally stable. The plaintiff explained that he tried to have a crack at a business but realised he could not make a go of it.
Mr Greg McCracken
62 Mr McCracken, psychologist, furnished a report in support of the plaintiff dated 20 July 2019.[40] He noted that the plaintiff had been referred to him in April 2016 and he had been attending irregular counselling sessions since then. He presented with severe pain in his ear (tinnitus) after a workplace incident and extensive family, workplace and living concerns. In his assessment, including the use of psychometric testing, the plaintiff was suffering from severe depression and anxiety, and this had led to a severe impact on his ability to function.
[40]Exhibit P4, PCB 12-13.
63 Mr McCracken wrote that the plaintiff had attended most, if not all, of the sessions in a highly agitated state due to his intense tinnitus pain and chaotic family/residential/financial/workplace situations. He described that much focus had been directed at attempting to develop skills to self-moderate his emotional state through mindfulness and self-soothing activities. Many of the sessions were held out of doors because the plaintiff reported his tinnitus became unbearable in a small office.
64 Mr McCracken wrote that the plaintiff had experienced a chaotic life and his attendance at sessions had been irregular. He had become homeless and spent much of 2016 uncontactable and away from the area of his practice. He concluded counselling in March 2019 for this reason. At that stage, the plaintiff was still highly agitated and in significant tinnitus pain, homeless, disconnected from supports, and in poverty. His suicidal ideation was significant. Psychometric testing completed at that time involving the DASS and K10 indicated that he was experiencing extremely severe levels of stress, anxiety and depression. He thought he would benefit greatly from ongoing psychological treatment to deal with his psychiatric condition. His treatment plan involved developing his mindfulness skills to allow focus on important events and behaviours and help deal with his tinnitus pain.
65 Mr McCracken considered that the tinnitus pain appeared to be an ongoing source of frustration and exhaustion for the plaintiff.
66 Mr McCracken did not believe that at the last date of his contact with the plaintiff he had a capacity for pre-injury employment. His stress and anxiety provoked an intense anger response which would preclude him from obtaining work. His concentration was poor. He struggled to complete any task he commenced. This contributed to his constant negative thoughts that are manifested in emotional outbursts and social isolation. His condition had led to serious sleep deprivation that compounded his instability.
67 Mr McCracken thought it reasonable to conclude that the injury sustained, and subsequent discomfort, had placed significant pressure on the plaintiff’s capacity to maintain social, domestic and recreational activities.
Dr Leonid Gankin - Beach Street Family Medicine report dated 4 June 2020
68 Dr Gankin is a general practitioner who has had care of the plaintiff, and in a report to the plaintiff’s solicitors date 4 June 2020,[41] wrote that the contents of his report were based on information provided by the plaintiff and other health professionals. He diagnosed left tinnitus and severe hearing loss and severe anxiety and depression second to the injury. He noted that the plaintiff also suffers from poor balance. He said that the plaintiff’s treatment had included being referred to a psychologist, and a review with a psychiatrist. He summarised the plaintiff’s present symptoms to include anxiety and depression and insomnia, which required ongoing counselling. He regarded his prognosis as poor and he did not believe there was a capacity for employment currently, nor for the foreseeable future.
[41]Exhibit P5, PCB 14.
69 Dr Gankin did not believe the list of jobs he had been provided would be suitable employment, as the plaintiff would be exposed to an excessive amount of noise, which would aggravate all of his conditions. He said the plaintiff’s incapacity for employment would last for the foreseeable future. He stated that the plaintiff is restricted in a majority of his daily activities and his social life, and his libido is affected by his injury and condition. He assessed the extent of the effect on the plaintiff as quite significant and believed the incapacity will continue for the foreseeable future.
Dr Stephen Stern
70 Dr Stern, psychiatrist, in a medico-legal report prepared for the defendant and dated 24 August 2018,[42] assessed the plaintiff’s mood as depressed, and that he was often tearful and short-tempered although not physically aggressive to people. He was worried about his future. There had been suicidal thoughts of drowning. He jumped in the water once in 2017. He was not currently suicidal because of the importance to him of his young son. His sleep is disturbed by his tinnitus but he does not suffer nightmares. His memory and concentration were reduced. He is forgetful and he makes mistakes. However, there are no flashbacks of the accident itself.
[42]Exhibit D1, DCB 5-13.
71 At the date of Dr Stern’s report, the plaintiff was living with his son in a rented unit in Crib Point. He was spending his time mainly at home. He occasionally saw friends. He sometimes drives. He was not using public transport and was intolerant of noise. His reported complaints of symptoms were:
“1. Constant tinnitus and reduced hearing in the left ear.
2. Recurrent pain in the left side of the head.
3. Depression and anxiety.
4. Disturbed sleep.
5. Lack of energy.
vi. Reduced memory and concentration.”[43]
[43]Exhibit D1, DCB 7.
72 Dr Stern obtained a history of him hasving endured marital problems in the course of his second marriage in 2012, for which he saw a psychologist six times. Marital problems also occurred in January 2015 because of his wife's alcohol problems, and there were Family Court proceedings involving the custody of their son.
73 The plaintiff presented to Dr Stern in a very agitated fashion. He was very sensitive to sound including the air conditioning in Dr Stern’s rooms. His behaviour was intense. He was unable to relax. He tried to be cooperative and he maintained eye contact. His speech was rapid and rambling. He was easily distracted. The content of his speech was very focused on the effects of the explosion, particularly the deafness and tinnitus. His affect was very depressed. He saw himself as totally disabled. He said he was unable to work and he was uncertain of the future. His confidence was low. There was no evidence of thought disorder, delusions or hallucinations. His orientation was intact, his memory and concentration were reduced. His intelligence and insight were normal.
74 Dr stern diagnosed a psychiatric injury by way of a chronic major depressive disorder with anxiety. He considered the plaintiff’s psychiatric state to be related to the explosion at work on 19 August 2015 and the resultant injuries. His social and leisure activities had been reduced, but his activities of daily living were not limited by psychiatric factors alone.
Mr Hugh Millar
75 Mr Millar in a report dated 27 August 2018[44] prepared for the defendant, but tendered by the plaintiff, commented that as a result of the explosion, he experienced a “cicada” noise-like tinnitus in his left ear, which is a constant distraction and annoyance. The tinnitus affects his sleeping ability and keeps him awake, and he uses a ceiling fan for noise distraction. He does not take any medication.
[44]Exhibit P8, DCB 14-19.
76 Mr Millar said he believed the plaintiff suffers from a hearing loss in the left ear resulting from the accident and that the plaintiff’s balance is also impaired, causing unsteadiness. However, he noted that the plaintiff said he was able to walk normally on a daily basis, several kilometres, and he did not think there existed any physical disability for manual activity. I note that it is not part of the plaintiff’s case that he has a physical disability, beyond his tinnitus, for manual activity.
77 Mr Millar reported that the plaintiff’s tympanic membranes appeared intact and mobile. Tuning fork testing suggested a significant hearing loss in the left ear with referral of the tuning fork Weber to the right. Pure tone audiometry had been undertaken at the Balance and Hearing Centre with satisfactory responses, indicating a mild bilateral, high frequency, sensorineural loss affecting the frequencies 3-8000cps, significantly worse in the left ear. Tympanometry indicates normal Type-A responses. The hearing disabilities have been calculated according to the 1988 NAL method recorded on the loss of hearing chart.
·binaural loss 7.6 per cent
·monaural loss right 2,9 per cent
·monaural loss left 5.8 per cent.[45]
[45]Exhibit P9, DCB 15.
78 Mr Millar wrote that the pattern of the hearing losses at 3-8000cps in each ear are indicative of acoustic trauma. He thought it likely that the plaintiff would have worked in high-noise levels during his employment career and that would be the cause of the 2.9 per cent loss in the right ear. The additional loss in the left ear he regarded as being due to the acoustic trauma of the explosion. His diagnosis was therefore:
“1. Right ear – industrial deafness.
2. Left ear – industrial deafness with the additional loss due to the acoustic trauma of the explosion.
Thus, the explosive noise has caused an additional 2.9% loss in the left ear (5.8 – 2.9).”[46]
[46]Exhibit P9, DCB 15.
79 Mr Millar said the tinnitus experienced by the plaintiff in the left ear is the result of the acoustic trauma of the explosion, and most likely will be a permanent symptom, which is causing so-called “acoustic shock syndrome” with hyperreaction to the annoyance of the symptom and a degree of hyperacusis.[47]
[47]A disorder characterised by an increased sensitivity to certain frequencies and the volume range of sounds.
Mr Redhead
80 Mr Redhead, in a report dated 14 August 2019[48] prepared for the defendant, but tendered by the plaintiff, addressed the plaintiff’s current symptoms and stated:
“2.1 Current signs & symptoms
He currently suffers constant high-frequency tinnitus in the left ear, which he describes as like cicadas, but also may sound like a buzzing, humming, or ringing. The tinnitus is constant, and has caused insomnia. He finds that the use of a roof fan or radio on low volume for several hours provides some useful masking noise, but his sleep is often only for 3 hours per night. He is sensitive to loud noise, which aggravates his tinnitus. He is unable to tolerate noise in an office environment. He also has problems in a quiet room, when his tinnitus becomes more noticeable. He has noticed that the tone from a guitar open G or A string aggravates his tinnitus especially. He has difficulty with speech discrimination in the presence of background noise. He is not taking medication. He believes that his hearing has become worse since the accident.
He experience problems with balance following the injury. Mr H Millar noted on 27/08/2018 ‘…he is able to walk normally on a daily basis, several kilometres…’. He told me that his balance is normal except when his tinnitus becomes severe, and he then suffers from disequilibrium.[49]
[48]Exhibit P10, DCB 32-37.
[49]Exhibit P10, DCB 33.
81 Addressing the matter of diagnosis and audiology, Mr Redhead wrote:
“Analysis
4.1 Diagnosis
The worker suffers from:
a. bilateral sensori-neural hearing loss, worse in the left ear
b. noise induced hearing loss at 2, 3 and 4 KHZ
c. minor conductive hearing loss in the left ear
4.2 Discussion
…
Audiology
Reliable responses were made at all frequencies. Speech discrimination was consistent with audiogram. He shows that 4-6 KHZ notch typical of noise induced hearing loss. The variations in his hearing loss shown on his different audiograms may relate to the severity of his tinnitus at the time of testing. The conductive hearing loss may have resulted from the blast injury to the left middle ear.”[50]
[50]Exhibit P10, DCB 34.
82 Mr Redhead described the plaintiff’s presenting condition as follows:
“The worker is suffering from bilateral sensorineural hearing loss, noise induced hearing loss, minor conductive hearing loss, tinnitus, and vestibular impairment aggravated by his tinnitus.”[51]
[51]Exhibit P10, DCB 34.
83 In a supplementary report dated 18 November 2019,[52] Mr Redhead commented on the method of testing for tinnitus and its symptoms. The defendant submitted that the report’s relevance was to emphasise the highly subjective nature of a diagnosis of tinnitus, and that in this case, because the plaintiff’s credit was so lacking, I should not be satisfied that he suffers from the condition. I can dispatch that submission very readily.
[52]Exhibit P10, DCB 38.
The diagnosis
84 The universal opinion of the plaintiff and defendant doctors is that the plaintiff suffers tinnitus. I am satisfied that he does. I accept, that unlike a physical injury that can be observed by radiology, the presence of the condition depends on the account of it given by the plaintiff, although, not exhaustively. As I pointed out to Ms Tsikaris in the course of final addresses, Mr Redhead appears to have arrived at his diagnosis not by a mere ready acceptance of the plaintiff’s account, but also because his account of tinnitus may be explicable and consistent with the empirical evidence of the plaintiff’s hearing loss that was occasioned by the traumatic event of injury. A like observation may also be seen in Mr Millar’s reporting.
Serious injury in a pain and suffering case
85 The following principles apply in a serious injury application involving pain and suffering:
a.serious injury means permanent serious impairment or loss of a body function as specified by the statute;
b.an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being “more than significant or marked”, and as being “at least very considerable”.
c.in assessing the seriousness of the claimed impairment consequences, a court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.
86 In Haden Engineering Pty Ltd v McKinnon[53] (“Haden Engineering”), Maxwell P said:
“[T]he weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”[54]
[53][2010] VSCA 69.
[54][2010] VSCA 69 at paragraph [12] citing Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]–[145].
87 The defendant attacked the plaintiff’s credibility concerning the disclosure of his preinjury earnings and the extent to which the effects of the account of his tinnitus impeded his ability to work or to conduct himself socially across a spectrum of areas, thereby, ultimately submitting, that the injury failed to satisfy the statutory test. However, Mr Brett submitted that in broader terms the plaintiff's credit was not successfully attacked otherwise than in reference to certain unaccounted-for cash income.
88 I was invited by Mr Brett, having observed the plaintiff’s demeanour in the course of the remote hearing, to conclude that he was “uncomfortable” as exhibited by the many times he was fiddling with his ear. The plaintiff certainly presented to my mind in an altogether peculiar manner, his answers often enough being problematic, in the sense that he frequently left me with the impression that he was unaware that he had been unresponsive to questions asked of him, and that he had not managed to execute his thought processes into a meaningful answer. In this aspect, I found his presentation similar to the account given by Dr Stern in his report referred to earlier.
89 Mr Brett submitted that the plaintiff was never challenged about the extent of the tinnitus and how it actually impacted his life. Indeed, Mr Brett submitted that Ms Tsikaris had not discharged her obligation under Browne v Dunn.[55] I do not agree with this submission. Counsel for the defendant directly challenged the veracity and extent of the impact on the plaintiff of his tinnitus. Assessing the range of the effects on the plaintiff by cross-examining him, as Ms Tsikaris did, on his deposed capacities to walk distances outdoors, to socialise, to have conducted a business of his own, to drive a car and to attend car shows, is all a direct and fair challenge to the plaintiff’s assertion that the effect on him of the consequences of his impairment are serious in regard to pain and suffering consequences and a capacity to undertake suitable employment.
[55](1893) 6 R 67.
90 In my judgment, what is more to the point, is that having accepted the plaintiff suffers tinnitus, whether it is of a nature and extent as to meet the statutory test for serious injury by way of pain and suffering consequences and, if it does, does it also, and separately, meet that test for a loss of earnings claim?
91 Reverting for a moment to Haden Engineering, Maxwell P set out a useful, but non-exhaustive, list of ordinary activities which may be affected by a “very considerable” injury and they include:
·Sleep.
·Mobility.
·Cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication).
·Capacity for self-care and self-management (concerning which the definition of ‘disability’ in the Disability Act 2006 could be applied, as an impairment which reduced a person’s capacity for self-care, self-management, mobility or communication); performance of household and family duties.
·Recreational activities.
·Social activities.
·Sexual life.
·Enjoyment of life.[56]
[56]Haden Engineering [2010] VSCA 69 at [16].
92 The plaintiff’s affidavit was unfortunately quite out of date and the extent to which it addressed these areas of relevance was relatively skimpy, although not without some helpful detail. Mr Brett said that, in any event, the affidavit’s lack of currency was of no moment because nothing had changed for the better for the plaintiff, a state of affairs the plaintiff had deposed to at the commencement of the hearing.
Substantial organic basis or not
93 In Meadows v Lichmore Pty Ltd[57], Maxwell P saw no error in law in the rule of practice or convenience developed in such an application as this as follows:
“ As a result, so the respondent submitted, serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic pain and suffering consequences relied on. If the answer to that question is affirmative – and, of course, if the pain and suffering consequences satisfy the statutory criterion – then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not – or cannot be – answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”[58]
[57][2013] VSCA 201 (‘Meadows’) and see also: Jovceva v Transport Accident Commission [2019] VSCA 105 at [54]; Sheridan v Victorian WorkCover Authority [2019] VSCA 54 at [70]; and Carbone v Toyota Motor Corp Australia Ltd [2017] VSCA 249 at [108].
[58]Meadows [2013] VSCA 201 at [21]-[22].
94 I am satisfied for the reasons that follow that the plaintiff has satisfied the first step. Although Mr Brett agreed with the defendant that the plaintiff suffers psychiatric issues and limb (c) of the application was disavowed at the commencement of the hearing, he submitted that the Court is permitted to take into account the fact that the plaintiff’s present tinnitus causes him a great deal of distress and has caused him anxiety and depression as part of the consequences of the physical injury of acoustic trauma. Mr Brett further emphasised that there is an absence in the medical material of a suggestion of psychological contribution by way, for example, of a perception of tinnitus. However, Mr Brett accepted that there would appear to be a psychological input into the plaintiff’s ongoing distress, however, the psychological input is largely due to the tinnitus, and the plaintiff had deposed to affected sleep and to constant, but fluctuating, pain triggered by a variety of unexpected sources.
95 Mr Brett referred, by way of example, to observations by Mr McCracken, and most recently the report of Dr Gankin who describes the plaintiff as suffering:
“… Left tinnitus and severe hearing loss, severe anxiety and depression second to the injury. Craig also has poor balance.
Craig’s treatment has included being referred to a psychologist, and a review with psychiatrist. Craig’s present symptoms include anxiety and depression, insomnia which require ongoing counselling, Craig will also require DBT skills training.
Craig’s prognosis is currently poor.
Craig has no capacity for employment currently and for the foreseeable future.
It is of my opinion that Craig is unable to perform his pre-injury duties due to his poor balance, his loss of hearing and his poor concentration.”[59]
[59]Exhibit P5, PCB 14.
96 I accept Mr Brett’s submissions. In addition, to the extent the plaintiff attributes his diminished ability to concentrate to his tinnitus, in my judgment, the attribution makes sense.
97 Mr Brett also relied on the opinion of Mr Redhead that:
"The symptoms of tinnitus are extremely variable. The sound may be located to one or both ears, or may be located anywhere within the head or body … The sound may be described as ringing, buzzing, clicking, rushing, whooshing, crickets, insects, cicadas, ‘like running water’, thumping, pulsation, or any other sound or combination of sounds. It may be intermittent or constant. It may be increased by exposure to noise or music, or other environmental conditions. It is often aggravated by stress. It may cause insomnia or psychological disturbances.
…
Tinnitus may cause no debilitation at all, or it may cause a variety of hearing disturbances or psychological conditions. Many people can ignore the sound. Some people develop significant difficulty in understanding speech, and others may develop mild, moderate, or severe psychological problems resulting in anxiety and depression … .”[60]
[60]Exhibit P10, DCB 38.
98 The Medical Panel observed that:
“… He said that although he drives well, he finds it difficult when he has the windows down because of the noise. He said he now does not cope with any noisy crowd which makes him anxious. Despite this, he is reasonably comfortable in a supermarket or a cafe with a woman when socialising. At times he enjoys socialising and has a number of women interested in a relationship with him.”[61]
[61]Exhibit P9, DCB 24.
99 Mr Brett submitted that in order for the plaintiff to satisfy the test for serious injury for pain and suffering, he “doesn't have to be in a wheelchair - - - and he doesn't have to have no life”.[62] That, with respect to senior counsel, is a self-evident observation.
[62]T133.
100 Mr Brett relied on the inability of the plaintiff to return to the work he had been doing on and off since 1986. The loss of ability to work is a factor that can inform a plaintiff’s loss of enjoyment of life, or loss of amenity.[63]
[63]See: Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at [35]; Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67 at [38].
101 Mr Brett also urged me to be satisfied that basically everything the plaintiff undertakes, he needs to do so with some consideration as to whether he is likely to be exposed to noise and particularly to unexpected noise, and that this is a direct consequence of the organic physical injury to his ear, by way of the acoustic trauma, and for all these reasons the consequences satisfy the statutory test for pain and suffering consequences.
102 I have very carefully considered the submissions of the parties. I am satisfied that the consequences of the impairment to the plaintiff’s hearing is permanent, and I am satisfied that the impairment is more than significant or marked and is at least very considerable, and thus satisfies the statutory test of “serious” in the sense required. I have reached this conclusion, having regard to the following mix of competing considerations:
·Although the plaintiff can still drive he is limited to periods of time of up to an hour at a time. This inevitably limits the range of freedom the plaintiff has.
·The plaintiff is self-sufficient in his personal care.
·The plaintiff is largely independent in his activities of daily care and he can shop.
·The plaintiff is able to undertake regular walks of some distance from his home to the beach.
·The plaintiff can snorkel. The fact that snorkelling affords relief to some extent, by masking the interference of his tinnitus, cannot blind the fact that it is a pursuit from which he derives pleasure or that the reason he has not snorkelled recently is, as he said, because the weather has not been conducive to it.
·He can still play chess on his phone.
·His social life is limited, although, as he explained, he is able to on occasions catch up with women friends at cafes, and he is comfortable doing so despite the intrusion of his tinnitus.
·He has been able to garden in the past and the lack of doing so in recent times has been due to his residential relocation and not his tinnitus.
·He can attend the occasional car event, something in which he has always held an interest.
·His capacity to work in the pursuit in which he has spent the better part of his adult life is non-existent. He now has no capacity for work in noisy environments, such as radiator repair shop floors, and is trained and experienced in little else.
·The capacity to play his guitar for recreation and pleasure has been lost.
·There has been an adverse change to his sleep, such that whereas in the past his anxiety and depression appears to have resulted in him sleeping too much, he is now suffering intrusions to his sleep and obtaining too little of it. The diminution in uninterrupted sleep, and its effects on a person by way of pain and suffering, was well explained in Haden Engineering in which Maxwell P said:
“ It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. Mr McKinnon often experiences multiple painful awakenings in the course of a single night. As his counsel submitted, that is properly to be regarded as constituting a very considerable diminution in Mr McKinnon’s enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”[64]
[64][2010] VSCA 69 at [45].
103 I accept the plaintiff’s sleep is disturbed on a recurring basis and that so long as he labours from tinnitus, he can expect his sleep to remain interrupted. In other words, on the evailable evidence, this will be permanent.
104 He has experienced a loss of libido.
105 In assessing the overall impact of the injury on the plaintiff, I have had regard to the position as summarised by the court in Ellis Management Services Pty Ltd v Taylor[65]:
“… After all, it is to be remembered that when assessing pain and suffering consequences one needs to have regard to the whole of the individual (background, abilities, skill sets and the like), not merely some worker of average or uniform characteristics.”[66]
[65][2013] VSCA 326 (‘Ellis’).
[66]Ellis [2013] VSCA 326 at [52] per Osborn and Beach JJA.
106 I also regard it as consistent with Dwyer v Calco Timbers No 2,[67] that when assessing what has been lost and retained as a result of a compensable injury, for a person who has little to lose to begin with, the loss of a little can be more than significant or marked and at least very considerable when adjudged objectively and according to range. I regard the plaintiff as someone for whom the consequences of the injury in terms of its consequences for pain and suffering are apt to meet such a description.
[67][2008] VSCA 260.
107 The plaintiff was taken by the defendant’s counsel to the clinical record of attendances for medical care on his treating general practitioners. He was asked why he ceased attending Advantage Medical. He said that because there is no “magic pill”, he saw no reason to continue attending. He was also quizzed about the many attendances in which no reference was made to his tinnitus. I think the nature of the condition has been sufficiently revealed in the medical evidence as to be unresponsive to conventional treatment and, in any event, the efforts that the plaintiff has made to date have failed to yield results. Therefore, I am not disturbed by the lack of complaint recorded in many of the clinical notes. I do not regard this particular application as one in which the absence of clinical records is telling.
108 For the reasons expressed, I am satisfied that the plaintiff suffers from a serious injury.
Loss of earnings
109 The plaintiff seeks leave to bring a damages claim, not only for pain and suffering, but also for loss of earning capacity. Where a plaintiff asserts that he has sustained a serious injury by reference to a loss of earning capacity, he must additionally show that, at the date of the decision on whether to grant leave or to issue a certificate, he has sustained a loss of earning capacity of 40 per cent or more and that he will, after the date of the decision, continue to permanently have a loss of earning capacity which produces a financial loss of 40 per cent or more.[68] The requirements for the two 40 per cent or more tests prevail in addition to the narrative test. Thus, in order to determine whether the plaintiff has sustained a 40 per cent loss of earning capacity, the Court must determine the plaintiff’s pre-injury and post-injury earning capacity and determine whether there is a 40 per cent loss due to the injury.
[68]Section 325(2)(e) of the Act.
110 In determining loss of earning capacity, paragraph (f) of s325(2) requires a comparison to be brought between the gross income which the worker is either earning or capable of earning in suitable employment at the relevant time, “whichever is the greater”, with the gross income which the worker is earning or capable of earning from personal exertion “during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred”.
111 In Hayhill Pty Ltd v Hodge,[69] it was said that the measurement of the claimed loss of earning capacity, as prescribed, necessitates a comparison of two matters:
(a)the gross income the worker is earning or is capable of earning in suitable employment at the date of the hearing (referred to in some authorities as “after injury earnings”); and
(b)the gross income that the worker was earning or was capable of earning “‘during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred’” (again referred to in some authorities as “without injury earnings”).[70]
[69][2006] VSCA 194 (‘Hayhill’).
[70]Hayhill [2006] VSCA 194 at [2] per Chernov, Nettle and Redlich JA.
112 In Acir v Frosster Pty Ltd[71], (“Acir”) J Forrest J summarised a number of principles relevant to the performance of the exercise required to measure loss of earning capacity as was expressed in s134AB (38)(f) of the Accident Compensation Act 1985 (the current statutory language not being different). These are:
·First, and importantly, s134AB (38)(f) is a gateway provision which either precludes or permits a worker to bring a claim for damages for loss of earning capacity. It is a part of the serious injury process, not that of assessment of damages. It does not involve any determination (interim or final) of actual loss of earning capacity sustained by the worker. Second (and a corollary of the first proposition), in determining without injury earning capacity, the Court is not required to make an assessment, at this stage, of loss of earning capacity, as in a claim for damages. Rather, it compares the worker's earning capacity, as defined, with the statutory formula for the assessment of after injury earnings (considered subsequently). Third, the fixing of the gross income which most fairly reflects the earning capacity is a limited enquiry not to be confused with that made in a damages claim. It is confined to those matters which go to the practical exercise of that capacity, not its diminution by outside events. In that regard I have in mind those matters referred to by the Minister in the Second Reading Speech, namely, increases/decreases in wages and other employment opportunities.
·The exercise is not to determine loss of earning capacity – which is a damages issue, but, rather, to focus on earning capacity in a limited context.
·Fourth, the subsection does not mandate a mathematical assessment of without injury earnings, such as a formula based upon the earnings of the worker over a particular period prior to the injury or at the time of injury. Rather, it requires the Court to fix a figure which “most fairly reflects the worker's earning capacity” without injury.[72]
[71][2009] VSC 454. Subsequently endorsed by the Court of Appeal in the Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292 (‘Herald’).
[72][2009] VSC 454 at [171]-[174].
113 In Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop,[73] the Court of Appeal identified the matters required to be taken into account in calculating the without injury earnings as required by s134AB (38)(f)(ii). The Court said:
“… for the purposes of s 134AB(38)(f)(ii) of the Act, a worker's earning capacity represents a capital asset which, when exercised, produces income from personal exertion. It follows that a worker's ability to earn income through personal exertion depends on the nature and quality of the worker's capital asset and his or her capacity and willingness to use it to earn income. Thus, the worker's physical and mental capacities to work are relevant, as are the type of work the worker is able to perform, the remuneration for that work and the hours that the worker is willing to work.”[74]
[73][2014] VSCA 292.
[74]Herald [2014] VSCA 292 at [53] per Neave, Kyrou JA and Ginnane AJA.
114 It is no doubt trite of me to observe that the facts of each case and the manner in which the worker presents his case will influence which factors are relevant to the application of s325(2)(f)(ii) of the Act and their relative importance.
115 The actual hours worked by a worker and his actual earnings are not always the best evidence of his earning capacity for the purposes of subparagraph (ii) of s325(f) of the Act. They will be the best evidence under the first scenario – “the gross income ... that the worker was earning” – but they will not necessarily be the best evidence in relation to the other three scenarios. Under those scenarios, the Court is required to fix a representative figure for earning capacity which may take into account the amount of income earned, but will not necessarily equate to that amount. In Acir, J Forrest J summarised the position as follows:
“In most cases, the inquiry will be relatively simple; the wage at [the] time of injury will be established (scenario (a)) and generally, as the Second Reading Speech makes clear, the only other question will be determining whether, pursuant to scenario (c), there has been an increase or decrease in wages and the prospects of promotion. However, at times, scenarios (b) and (d) may need to be considered, such as, where it is necessary to examine the capabilities or capacity of the worker in terms of wages which could have been potentially earned or were prospectively available post-injury (eg, if he or she was not working full-time at the time of the injury).
The essence, then, of the inquiry is to fix a figure which 'most fairly' reflects the earning capacity of the injured worker, absent the subject injury.. .”[75]
[75]Acir [2009] VSC 454 at [166].
Without injury earnings – unreliable
116 The exercise in determining the plaintiff’s without injury earnings was not simple or straightforward. Mr Brett sought to circumvent the unreliability of the plaintiff’s evidence about earnings prior to injury and after injury on the basis that the plaintiff has no capacity for suitable employment and hence the issue is moot.
117 In his affidavit the plaintiff deposed to his earnings. He said his working hours with the defendant were Monday to Friday from 8.00am to 4.30pm, for which he was paid a net weekly wage of $700 plus superannuation, and that he had been provided with a work ute. However, he also said he was paid $300 cash on a weekly basis. The plaintiff said he could not remember if he declared the amount of $300 cash in hand paid by his former employer to the Australian Taxtion Office.
118 In the course of his evidence, the plaintiff also disclosed income generated from the business “Hastings Radiators” he commenced in about mid May 2016 following the cessation of his employment with the defendant. He said he had two employees in that business, one whom he described as a casual driver and another who was apparently his daughter’s boyfriend, and whom he said he both paid, although one of the two “was just cash in hand like everyone in that industry”.[76] The business was operated by the “Mansfield Family Trust”, the trustee being “Hastings Radiator Services Pty Ltd” of which the plaintiff is the sole director.
[76]T28.
119 The income of the business for the financial year ended 30 June 2017 was $151,869. There were booked expenses of $183,000 leading to an operating loss of $31,163. Wages, however, accounted for a mere $12,241. The plaintiff said his daughter and her boyfriend lived on the premises and their rent was taken out, presumably from his wage, although he did not disclose the amount for rent, and hence the amounts deducted from the wages. He merely said, “it’s the industry that everything is cheaper for cash. Simple as that”.[77]
[77]T30.
120 Ms Tsikaris suggested to the plaintiff that the truth was that the low wages disclosed were indicative of him undertaking the bulk of the work for “Hastings Radiators” throughout 2017. He denied this was so.[78] Ms Tsikaris put to him that the alternative inference is that he was not reporting to the taxation office the cash in hand paid to staff and was under-reporting their wages. The plaintiff declined to answer counsel’s question.
[78]T30.
121 The plaintiff’s reported taxable earnings for the year ended 2015 was $23,517. He deposed in his affidavit that he was paid $700 net per week. This would represent an annual wage of $36,400 and, therefore, a greater amount than $23,517. The amount of $700 per week was exclusive of the amount of $300 the plaintiff deposed to receiving weekly as cash in hand.
122 The plaintiff said that “there was times where I wasn't on the books as well, for whatever reason”[79] and that his former employer “took a while to put me on, and then at one point he took me off because I think he had something going on with his daughter and son, or whatever. I'm not a hundred per cent sure on that”.[80] Payroll records produced in the hearing were not continuous.[81]
[79]T38.
[80]T38-39.
[81]Exhibit P11.
123 In the 2014 taxable year the plaintiff disclosed income of $26,730. He also said under cross-examination that the cash in hand the defendant paid to him varied. He said:
“ Sometimes it had varied in the way of - if I worked a Saturday I got good money, I got 200 plus for a Saturday in my hand, and if I did any backyarders[82] after hours through him, then just - just depended on what kind of week, but basically the 300 was pretty standard.”[83]
[82]By which he meant jobs done on his own premises.
[83]T39.
124 He was asked about the receipt of any cash payments while conducting his own business and he agreed there were times when he was paid in cash but he did not report it as income.
125 In addition to the disclosed sales of $150,000 in the financial year 30 June 2017, the business undertook additional jobs paid for in cash and also undisclosed to the taxation office. The plaintiff estimated the frequency of cash jobs as a daily occurrence, with their value varying from $5 to $5,000. He said a $5,000 job might involve the replacement of a radiator in a large vehicle or a piece of machinery, and that he had “a couple of good customers with chicken farms” and on whose generators and trucks he worked. He said he would travel to the customers’ sites with one or other of his employees. He said that as well as the farming machinery repairs, he would do work on machinery at wineries.
126 He was asked what percentage of revenue the business generated was cash in hand and if it equated to as much as half and he said, “Yes, pretty much, I'm not sure, yes, but, probably lower than that but it was – it was okay”.[84]
[84]T41.
127 He was asked if he agreed that if the reported earnings to the tax office were $150,000, and up to half the work was cash in hand, the actual earnings generated in his business could have been in the order of $300,000. He said he couldn’t say and that he “Didn't take a great – a great deal of notice”.[85]
[85]T41.
128 Arguably, the plaintiff’s business was in fact, if not on paper, a profitable enterprise, and if, as the plaintiff testified, he was not doing the bulk of the work, it would appear there was little reason to have sold it. The plaintiff said, “you've still got [to] concentrate and be there and whatever else, yes, you can't run a business without being there and I did find it extremely hard that's why I had enough, just physically unable to do it”.
129 The plaintiff was asked if he could explain why some doctors had reported that he gave up the business due to it being unprofitable. He said he “couldn't spend the time there and I was – by one o'clock I was back in bed and you can't run a business like that and to get reliable staff and that just makes it hard, doesn't it, yes”.[86]
[86]T42.
130 The Medical Panel noted the following:
“Mr Mansfield said he did not return to work at Bundoora Radiators as when he proposed making a WorkCover claim, his boss’s son threatened him; for a time he tried to run his own radiator business in Hastings which he closed in December 2017 as he did not make a good income and his son was refusing to attend school.”[87]
[87]Exhibit P9, DCB 23.
131 He said he could not remember giving the evidence to the panel. He said that he was unable to do any of the work and he was “paying other people to do it, why should I – I wasn’t getting anything out of it myself. I was just paying other people to do my work because I couldn’t do it. Simple as that”.[88]
[88]T43.
132 The plaintiff’s reliability and honesty in the reporting of his financial affairs ultimately led to a submission on behalf of the defendant that he could not be relied on as an honest witness.
133 Payroll records from the employer for the week ending 8 February 2013 to week ending 16 January 2015 reveal wages paid to the plaintiff on a weekly basis of between $810 and $817 per week. That would on an annualised basis equate to somewhere between $42,120 and $42,484. Ms Tsikaris disputed reliance being placed on the wage records produced from the employer because she said the “actual wage details do not support a pre-accident average of $40,000. They disclose earnings around the vicinity of $27,000 per annum.”[89] Mr Brett did not ultimately contest the without injury earnings. He submitted that the plaintiff has no remaining earning capacity. He said, nonetheless, that: “[i]f there's a concession that there's $27,000, I'm not going to argue with that, Your Honour.”[90] He added, “We argue that the residual earning capacity is – we say if he was earning $1 a week and is no longer capable of earning 60 cents, then that's going to be our position. But I'm happy to accept $27,000”.[91]
[89]T90.
[90]T90.
[91]T90.
134 I am not willing to treat the plaintiff’s questionable disclosure of income to the authoritries as a sufficient and probative basis for me to conclude otherwise about his diminished capacity for earning money by selling his labour.
135 Mr Brett submitted that if the plaintiff has a capacity for eight hours a week work in suitable employment then he easily meets the 60 per cent test on the lesser of the revealed earnings.
Suitable employment
136 The phrase “suitable employment” is defined by s3 of the Act in the following terms:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—
(i)the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker's pre-injury employment;
(iii) the worker's age, education, skills and work experience;
(iv) the worker's place of residence;
(v)any plan or document prepared as part of the return to work planning process;
(vi)any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether—
(i) the work or the employment is available; or
(ii)the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education.”
137 I was not addressed on the definition of suitable employment by either party and it is perhaps explicable that the definition did not take prominence because of the plaintiff’s primary submission that he has no capacity for any employment and the defendant’s that he does.
138 The defendant contended that at least the plaintiff has a capacity for the identified positions of a picker or a meter reader.
139 I am not convinced that the proposed suitable employment of a crossing supervisor is suitable employment for which the plaintiff has a capacity. It obviously requires standing in areas of traffic, being exposed to unexpected traffic noises, and being in a position where concentration is paramount. The nature of the plaintiff’s incapacity precludes him from the job. Similar criterion applies as to exclude the job of a traffic controller as suitable employment because it is a role in which the incumbent is also entrusted with significant responsibilities that require the capacity to concentrate and not be distracted, and is, by its nature, a job in which the holder is exposed to variable traffic noise.
140 The work of a meter reader would necessitate the plaintiff being out and about in all sorts of weather. He would also need to drive to a central point and be able to walk distances of up to 15 kilometres a day. The plaintiff can drive for up to an hour. I don’t see his restricted driving as an impediment to the job. I am not satisfied that the plaintiff’s evdeince of walking from his home to the beach is comemnuarte with a capacity to walk to the upper estimate for the job. Mr Brett suggested that the job would bring with it exposure to not just noise associated with weather, but the risk of exposure to barking dogs. Frankly, that element of the submission rings somewhat hollow because, of course, the plaintiff runs like risks of exposure to barking dogs every day when he goes walking or attends cafes, but that he manages to navigate.
141 The plaintiff was questioned about the position of the job of a picker and agreed he could perform it based on the description put to him. Mr Brett observed that although the duties are performed inside a factory environment where, according to the Recovre report, there is a “relatively quiet environment where there is no machinery noise”,[92] there are some forklifts that operate nearby although “no hearing protection is required in picking and packing areas”.[93] Mr Brett submitted that it could be taken as a given that some forklifts are noisy.
[92]Exhibit D3, DCB 65.
[93]Exhibit D3, DCB 65.
142 In my judgment, and more to the point than the risk of an occasional stray barking dog that might be encountered for one job, or an unexpected loud motorbike, or a noisy forklift in a factory associated with another job, is as Mr Brett submitted, the plaintiff’s presentation, which I am satisfied is that of someone who struggles with concentration, who struggles with insomnia, both of which affect his capacity to work as a whole. It is one thing to pick and choose in everyday life if one will shop or will go for a walk, and to be able to elect not to do so, because, for example, of disrupted sleep or the acute intrusion of inner ear noise, but it is quite another to choose not to attend work in a job that requires consistency and reliability.
143 I am satisfied that the plaintiff has proved that he has no capacity for suitable employment. On that basis, the plaintiff is entitled to a certificate for a loss or earnings.
144 In the event I am wrong in my finding, then I would be satisfied that, if the plaintiff has a capacity for suitable employment in either such job, it is for no more than four hours a day on two non-contiguous days. Of the jobs relied on by the defendant, the plaintiff’s earnings in each, for a maximum of eight hours a week, would also admit of the requisite loss of earnings percentage. Let me explain.
Associate Professor Umberto Boffa
145 In a report dated 20 August 2019[94] prepared for the defendant, Associate Professor Boffa observed that the plaintiff’s employment history and occupational training are limited, although his literacy capacity and computer literacy are adequate. He did not believe that the plaintiff required the imposition of any physical restrictions in undertaking employment, but that he would be limited in hours he can work with adequate concentration because of the “visually incapacitating tinnitus”.[95] He wrote how the plaintiff would be able to work limited hours in a quiet environment, preferably outside in the wind, such as a crossing supervisor. He was unable to nominate particular jobs, workplaces or employers for the worker.
[94]Exhibit D2, DCB 39-42.
[95]Exhibit D2, DCB 41.
146 He assessed the plaintiff with capacity for suitable employment of four hours on two non-contiguous days per week, in duties in which he is experienced and trained.
147 In his second report of assessment of the plaintiff dated 23 December 2019,[96] Associate Professor Boffa stated:
“… the worker requires no physical restrictions but should be limited in hours worked, commencing with 4hour shifts on two non-contiguous days per week with slow graduation to fulltime hours over 12 weeks and preferably in an in-door role.”[97]
[96]Exhibit D2, DCB 43-46.
[97]Exhibit D2, DCB 45.
148 It is not apparent from Associate Professor Boffa’s second report why his opinion altered, although, he observed that:
“… He has significant fear/avoidance to ambient noise and may benefit from concurrent behaviour therapy and other low risk evidence-based modalities such as repeated transcranial magnetic stimulation and complementary medicines such as Ginkgo biloba.”[98]
[98]Exhibit D2, DCB 45.
149 I am not satisfied by appropriate qualified evidence that there are treatments to improve the plaintiff’s condition and Associate Professor Boffa’s opinions of certain modalities of treatment have not found their way into any opinion of specialists in the relevant field of expertise who have examined the plaintiff and that were put before the Court in evidence.
150 I am not satisfied that a sufficient path of disclosed reasoning has been identified by Associate Professor Boffa for the suggested work hardening over a period of twelve weeks, with the result of the plaintiff then being able to obtain full-time hours’ capacity in the suitable employment of picker. Therefore, apart from his suggested alternative modalities and the use of herbal supplements, it is not at all evident that the plaintiff’s “visually incapacitating tinnitus”[99] referred to in his first report, as a basis to limit the plaintiff to four hours a day on two non-contiguous days has been overtaken.
[99]Exhibit D2, DCB 41.
151 Mr Brett pointed out that the plaintiff has tried masking his tinnitus with hearing aids, but without success. He submitted that the plaintiff’s condition is intractable, it is permanent and it is not susceptible to treatment. I accept that is a fair summary.
152 I am satisfied that the plaintiff has established a loss of earning capacity of 40 per cent or more and that it is permanent, and that the same is serious, both in its consequences to the plaintiff and when judged according to range as that test is applied in law.
153 Accordingly, I grant the plaintiff leave for both pain and suffering and loss of earnings.
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