Maric v Victorian WorkCover Authority
[2020] VCC 1396
•19 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-18-03808
| ZORA MARIC | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3, 4, 7 and 8 September 2020 | |
DATE OF JUDGMENT: | 19 October 2020 | |
CASE MAY BE CITED AS: | Maric v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1396 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – pain and suffering and loss of earning capacity damages
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Nicholson v Victorian WorkCover Authority [2016] VSCA 146; De Bono v Victorian WorkCover Authority [2019] VSCA 85; Johns v Oaktech Pty Ltd [2020] VSCA 10; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Herald & Weekly Times Ltd & Anor v Jessop [2014] VSCA 292
Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Ms A Smietanka | Zaparas Law |
| For the Defendant | Ms M A Hartley QC with Mr D Churilov | Russell Kennedy |
HIS HONOUR:
Introduction and background
1 This is an application for leave to bring common law proceedings pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2 The case before the Court has had a fairly lengthy journey to the point of hearing. At an earlier adjournment application on 5 March 2020, it was said by Senior Counsel for the plaintiff[1] (who it should be noted was not Senior Counsel who appeared at the eventual hearing) that–
[1]Transcript of proceedings Maric v Victorian WorkCover Authority (Judge Millane, 5 March 2020, Transcript (“T”) 1, Lines (“L”) 9-12 and 27)
“This is a very complex case and it’s a novel case. We don’t think the issues that arise in this case have been decided in any Court on any prior occasion;”
and further, that–
“it’s a minefield.”
3 The “minefield” essentially relates to the resolution of two issues.
4 The first is the determination of the issue of the plaintiff’s “income from personal exertion”.
5 The second is the extent to which a Medical Panel Opinion is binding and to be adopted and applied by the Court.
6 At the core of the application is the task of statutory construction. At the heart of this application is the great Australian dream of hard work, home ownership and financial security.
7 Before traversing the “minefield”, briefly by way of background, the plaintiff, Zora Maric, was born in Bosnia in 1965. In 1993, she arrived in Australia, together with her husband and young son. In 1995, she obtained employment with Sakata Rice Snacks Australia Pty Ltd (“Sakata”), where at various times she worked either day or nightshift doing factory work associated with packing products, including rice crackers and popcorn. She remained employed full time with Sakata, save for taking about five months off the Sakata work for the birth of her daughter, until suffering injury to her back in late September 2016. Save for a period on light duties after the injury, she has not worked for Sakata since 28 November 2017.
8 Not long after migrating to Australia, the plaintiff and her husband were lucky enough to purchase a home in Williamstown. Over the years following, they were then engaged in the renovation and development of properties in and around the inner west of Melbourne, starting with the development of the family home, before moving on to various other building projects, including the subdivision of blocks and the building of townhouses (“the property business”).
9 In 2007, there became a legal requirement to hold a building licence for the plaintiff (and her husband) to continue with the property business. It was decided that she was the best person in the family to obtain that licence. To obtain the licence required the plaintiff to pass written and oral examinations, which she did, and she obtained a building licence through the Master Builders Association. She continues to hold that licence. Thereafter, through various entities/accounting structures, she and her husband continued the property business. The plaintiff was involved in various aspects of the business, including planning, liaising with architects, site supervision and also performing manual work on the properties such as tiling, painting and cleaning. From approximately 2013, her then adult son became more involved in the property business.
10 The plaintiff (and her husband) achieved “profit” from time to time from the sale of real estate developed by them. From the taxation returns, that profit was distributed in a number of ways, in different financial years, depending upon accounting advice, including as a dividend, a capital gain, or as a partnership distribution. Some years there were capital losses and some years there was no profit, which reflects the nature of the property development that they engaged in. Whatever was contained in the plaintiff’s taxation return was mirrored ‘50-50’ in her husband’s taxation return.
11 The characterisation of the money that the plaintiff received from the property business is a critical issue to the resolution of this application. For the financial year ended 30 June 2016, she declared a capital gain of $101,265 from the sale of a property at 164 Douglas Parade, Williamstown. For the financial year ended 30 June 2017, she received a partnership distribution of $90,533 referable to the sale of a property at 28 William Street, Newport, which had been sold shortly before she was injured. The plaintiff seeks to rely, in one way or another, upon the capital gain and/or the partnership distribution as “income from personal exertion”. The defendant submits that those payments cannot be taken into account.
12 As mentioned earlier, in addition to the property business, the plaintiff also worked a full-time job at Sakata’s snack food factory. In this application, she claims that on 28 September 2016, she suffered a “serious injury” to her lumbar spine when performing heavy lifting. There is no need to deal with that event in detail as the parties accept that the issue of compensable injury/causation has been dealt with by a Medical Panel Opinion, which I shall discuss in more detail later in these Reasons.
The application and the parties’ contentions
13 This is a serious injury application pursuant to s325 of the Act. The plaintiff seeks leave to commence a common law proceeding in respect to the injury to her lumbar spine. She seeks leave to commence a proceeding for both pain and suffering and pecuniary loss damages.
14 The defendant’s position is that “it does not oppose any application by the plaintiff for a pain and suffering certificate”.[2]
[2]T4, L26-28
15 Therefore, the issue in dispute is, does the plaintiff satisfy the statutory test so as to entitle her to commence a proceeding for pecuniary loss damages?
16 The plaintiff’s case is that, in addition to the money that she earned at Sakata, she was achieving “income from personal exertion” from the property development business. The defendant accepts that as a matter of principle, in a given situation[3] money paid by way of a partnership distribution could fall within the definition of “income from personal exertion” but submits that the plaintiff has failed to discharge her evidentiary onus to prove on the facts of this case that the partnership distribution can be taken into account. The defendant also submits that any capital gain from the property business cannot be taken into account as “income from personal exertion”.
[3]Exhibit D2, paragraph 17
17 A key to the determination of the issues in this application is to decide what was the plaintiff’s “income from personal exertion”. The expression “income from personal exertion” is defined in s325(2)(a) of the Act as:
“income from personal exertion has the same meaning as in section 6(2) of the Transport Accident Act 1986.”
18 It is convenient at the outset to set out s6(2) of the Transport Accident Act 1986 (the “TAA”). The section provides:
“income from personal exertion in relation to a person means—
(a)the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and
(b)the proceeds of any business carried on by that person either alone or in partnership with any other person; and
(c)any amount received as bounty or subsidy in carrying on a business; and
(d)the income from any property where that income forms part of the emoluments of any office or employment of profit held by that person; and
(e)any profit arising from the sale by that person of any property acquired by the person for the purpose of profit-making by sale or from the carrying on or carrying out of any profit-making undertaking or scheme—
but does not include—
(f)interest, unless that person’s principal business consists of the lending of money, or unless the interest is received in respect of a debt due to that person for goods supplied or services rendered by the person in the course of the person’s business; or
(g)rents or dividends; or
(h)any employer superannuation contribution.”
19 The plaintiff’s case is put firstly on the basis that the evidence establishes a consistent level of earnings pre-injury from the property development business that are earnings within the definition of “income from personal exertion”, and should be combined with the Sakata earnings to calculate her “but for injury” earning capacity. In a document headed “Plaintiff’s loss of earning capacity calculations”,[4] she sets out the calculations relied on based on her taxation returns to produce “but for injury” earning capacity figures of either $157,611 gross per annum, based on the 2015-2016 financial year, or $146,454 gross per annum, based on the 2016-2017 financial year, when either a capital gain in 2016 or a partnership distribution achieved in 2017 are added to the Sakata earnings.
[4]Plaintiff’s Court Book (“PCB”) 205
20 In the alternative, the plaintiff says it may be appropriate to average the earnings from the property business[5] because those years are “bumpy” and may not most fairly reflect an average of what her pre-injury earning capacity was expressed as a gross figure on an annual basis.[6] Pinning the plaintiff’s Counsel down to the manner in which such averaging could be undertaken was something of a moving target in and changed between the opening of the case and final submission. Ultimately, the plaintiff submitted that the evidence was such as to allow the Court to conclude that such averaging meant that the income from personal exertion via the property business was worth “at least $40,000 - $50,000 to her per annum” or “well in excess of $20,000 per annum”.[7]
[5]T43, L11-13
[6]T15, L14-17
[7]Exhibit D2, plaintiff’s submissions at paragraph 41
21 The defendant disagrees with the submissions of the plaintiff. Its starting point is that as a matter of statutory construction and as a matter of fact, the distributions in the plaintiff’s taxation returns – either the capital gain or the partnership distribution – do not fall within the definition of “income from personal exertion”.
22 The defendant next makes submissions regarding the effect of the Medical Panel Opinion. Firstly, it submits that the plaintiff has an ongoing capacity for work in property management, as per the Medical Panel Opinion, but that her background, experience and skills as a property developer equip her to work in property management at a high level.[8]
[8]T24, L17
23 Next, the defendant submits that the issue as to whether the plaintiff still has a residual capacity for “suitable employment” as a Domestic Builder (Manager) either in the open market or in the family property development business, is a live issue to be determined.[9] In other words, the defendant submits that the Medical Panel Opinion has not conclusively determined the issue of the plaintiff’s “with injury” earning capacity.
[9]Exhibit D2, defendant’s submissions at paragraph 34
The Referral to the Medical Panel
24 Prior to trial, upon a referral from a judge of this Court, a Medical Panel was asked to answer a number of medical questions regarding the plaintiff.
25 Pursuant to a Certificate of Opinion dated 23 May 2019,[10] a Medical Panel answered such questions. Relevantly, the Medical Panel found that the plaintiff had a persistent soft tissue injury of the lower back following a disc protrusion, surgically treated, and that such injury was “materially contributed to by the lower back injury arising out of or in the course of her employment”.
[10]PCB 43
26 Therefore, pursuant to the Medical Panel Opinion, the parties accept that the question of compensable injury/causation is decided and that the Court is bound by that Opinion.
27 The Medical Panel was also asked questions about the plaintiff’s residual work capacity. Relevantly, the Medical Panel answered questions about work capacity as follows:
“In the Panel’s opinion employment as a property manager (residential) would constitute suitable employment for Ms Maric having regard to her compensable lower back medical condition.
In the Panel’s opinion, Ms Maric’s incapacity for her pre-injury employment as a packer is permanent.”
28 In addition, the Medical Panel answered another question about work capacity as follows:
“In the Panel’s opinion Ms Maric has a capacity for full-time hours of employment as a property manager (residential).”
29 The plaintiff, via her Counsel, Mr Tobin SC and Ms Smietanka, indicated that she was aggrieved by the Panel Opinion, but accepted that she was bound by it[11] and, as such, acknowledged that the Panel Opinion means that, for the purposes of the statutory formula, her “with injury” residual earning capacity must be assessed by reference to her having a full-time capacity to work as a property manager. The defendant, via its Counsel, Ms Hartley QC and Mr Churilov, accept that the Panel Opinion is binding for the conclusion that the plaintiff cannot perform her pre-injury employment. However, as mentioned earlier, the defendant does not accept that the Panel Opinion conclusively answers questions regarding “with injury” capacity for “suitable employment”. In other words, notwithstanding the Medical Panel Opinion that property manager (residential) was the only employment identified by the Panel as “suitable employment”, the defendant submits that there is other employment, namely Domestic Building (Manager), that I can take into account, both legally and factually, as suitable employment. I shall return to this issue further in these reasons.
[11]T11, L20-21
Pain and suffering
30 As mentioned, the defendant does not oppose any application by the plaintiff for a pain and suffering certificate; however, before dealing with the contentious issues in this application, it is useful to briefly describe the back injury and her pain and suffering consequences, as the effect of that injury on her does inform as to her current incapacity for work, bearing in mind the need to apply the Panel Opinion.
31 The plaintiff has been troubled by ongoing fluctuating low back pain since suffering injury in late September 2016. After various conservative treatments, she was referred to Professor Bittar, neurosurgeon. He saw her on 30 November 2016 and reported back to the general practitioner that –
“Zora Maric presents with fairly clear-cut left L5 radiculopathy secondary to the L4/5 disc prolapse.”[12]
[12]PCB 76
32 At that attendance, Professor Bittar discussed the possibility of surgery.
33 The plaintiff eventually accepted Professor Bittar’s advice, and on 28 February 2017, she had surgery described as a left L4-5 lateral recess decompression, rhizolysis and microdiscectomy.
34 The plaintiff was reviewed by Professor Bittar on 12 April 2017.[13] At that review, he noted that her leg pain was much better, but her back pain was similar to pre-operative, as expected.
[13]PCB 79
35 A further review took place on 11 May 2017,[14] at which Professor Bittar recommended further investigations and the possibility of a pain management program.
[14]PCB 80
36 A final review with Professor Bittar took place on 10 April 2018 where, amongst other complaints, the plaintiff recorded ongoing back and left leg pain.[15] In a report of 23 April 2018 to her solicitors,[16] Professor Bittar commented that:
“Her prognosis is guarded. She has sustained a serious injury to her lumbar spine and despite undergoing technically successful surgery, she remains significantly symptomatic.”
[15]PCB 84
[16]PCB 82
37 After that final review, Professor Bittar also expressed the opinion that her prognosis was poor.
38 In her affidavit material, the plaintiff sets out the ongoing symptoms in her lumbar spine and restrictions for various domestic, social and recreational activities. She was not challenged about her evidence of the effect of her injury. There is no need to set out her evidence about her pain and restrictions in any detail, other than to note that they are ongoing, with no suggestion of resolution. Regardless of the position adopted by the defendant, there is no doubt that her ongoing pain post surgery, together with restrictions for domestic, social and recreational activities, including the inability to do the hands-on aspect of property development – such as tiling, painting and the like, which was something that the plaintiff enjoyed – amounts to a “serious injury” for pain and suffering.
Pecuniary loss – the statutory framework
39 In order to succeed in her application for pecuniary loss serious injury, the plaintiff must establish that:
(i) her loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, were fairly described as being at least “very considerable”; and
(ii) she suffers a loss of earning capacity of 40 per cent or more, measured as set out in s335(2)(f); and
(iii) she will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
40 A failure by the plaintiff to establish any one of these three matters will require the dismissal of her application to commence a proceeding claiming damages for pecuniary loss.[17]
[17]De Bono v Victorian WorkCover Authority [2019] VSCA 85 at paragraph [48]
41 The parties agree, and I accept, that I am bound by the Opinion of the Medical Panel that the plaintiff’s compensable low back injury, as identified by it as a persistent soft-tissue injury of the lower back following a disc protrusion, surgically treated, is such that she is permanently incapacitated for her pre-injury employment as a packer at Sakata. Equally, it can be extrapolated that she is incapacitated for any similar manual employment, and neither party sought to argue otherwise. In my opinion, there can be no doubt that the loss of her pre-injury employment and her permanent incapacity for similar employment causes loss of earning capacity consequences that are “at least very considerable”.
42 The first “minefield” issue to be resolved is has the plaintiff satisfied the statutory formula as set out in s335(2)(e) and (f)?
The “income from personal exertion” analysis
43 Before moving to analyse the issue as to the calculation of the plaintiff’s “without injury” and “with injury” earning capacity, I wish to record the helpful written submissions provided by Counsel for both the plaintiff and the defendant, being exhibits P2 and D2 respectively. I asked for written submissions and marked them as exhibits in light of Counsels’ comments as recorded in paragraph 2 of these Reasons. I have taken the written submissions, together with the oral submissions, into account in the preparation of these Reasons, but for the sake of brevity will only refer to them to the extent necessary. I have also taken into account all of the tendered material and the oral evidence but again, for the sake of brevity, will only refer to that evidence to the extent that is necessary.
44 Firstly, there is no dispute that the plaintiff was employed by Sakata as a packer and that her earnings in that employment are to be taken into account as “income from personal exertion” within s6(2)(a) of the TAA. For the financial year ended 30 June 2016 (the full year immediately preceding the date of injury of 28 September 2016), she had gross earnings of $56,346 from Sakata. In the three-year ‘window’ before injury, she earned an average of $54,969 from Sakata, which is the figure the parties agree is an appropriate assessment of her “but for injury” earnings from Sakata. Therefore, I adopt the agreed figure of $54,969 as the starting point of the assessment of her “but for injury” earnings.
45 The second and critical question to be resolved is whether, in addition to the agreed Sakata figure, any of the ‘money’ from the property business she declared in her taxation returns in the three years before injury can be characterised as “income from personal exertion” and added to the Sakata earnings, to then be used in the measuring exercise as per the statutory formula in s325(2)(e) and (f).
The property business – Income from personal exertion?
46 The starting point is the plaintiff’s evidence of her involvement in the property business as contained in her affidavits. In her first affidavit sworn 2 May 2018, she gave evidence that:
“My husband and I had since our migration engaged in renovation of homes and then selling the homes. We usually did this with homes that we lived in for a period of time. I was actively involved in this work in the planning stages together with hands on tasks and the supervising of tradesmen. I found this activity to be both profitable and fulfilling.
In 2007 to be able to continue with this work, especially upon properties that we did not live in, it was necessary to have a qualified licensed builder. As I was the person most suited to obtain this licence I completed a three-month course in Clayton with the Master Builders Association and obtained the licence.
Since obtaining the licence my husband and I through a partnership between us and a company structure arranged by our accountant continued to do renovation work and building. This was profitable and it was expected to continue to be profitable. Unfortunately, since my injury I have been unable to continue to undertake any of the physical work that I once did in relation to this activity and I have thereby lost significant income to date and will continue to lose income in the future by reason of my permanent incapacity to undertake manual duties.”[18]
[18]Plaintiff’s affidavit sworn 2 May 2018, PCB 27-28, at paragraphs 22-24
47 Next, in her second affidavit sworn 5 December 2018, she said, of her involvement in the property business:
“From about 2007 until I injured myself in September 2016, my involvement in the business involved planning projects, organising and supervising contractors and hands on building work.
In terms of planning and organising contractors, I primarily did this via telephone. Our family run business wasn’t a sophisticated set up and it was small. We generally had one project on the go at a time. We were generally not involved in big projects which required drawing up complex projects and liaising with prospective purchasers. I would liaise with the council, architects, engineers and contractors via telephone.
I didn’t need to know how to use a computer or have administrative skills to manage our family business. We engaged an accountant who was responsible for preparing the various tax returns. I would prepare the quarterly BAS which was simple. It involved filling out a precedent form and I submitted these by post. I could also pay invoices by cheque. I would occasionally send a fax. I do not have good computer skills and I would generally not use a computer to run the business as there was no need. I do not have any formal qualifications, training or work experience in administration. My spoken English is conversational and fine to get by, but it is not sophisticated. I can read and write basic English, but my spelling is not great. If there was something that required email or administrative skills, I would ask my son to do this.
From about 2013, my son became more involved in the town planning side of the business. He began to use emails to communicate and manage the town planning whereas I had done things over the phone.
A big part of my involvement with our family run business was hands on physical work. For the last 20 years I have been employed with the defendant full time. I would work night shift. When our development company had an active project, I would often head over to the site after finishing my night shift to open the gates. I would then sleep and return to the site later that day. I would supervise, organise and direct tradespersons. We did not have projects on every year. There was often a wait between projects while we were in the process of obtaining relevant permits from councils. If we were in the midst of an active project, I could be onsite most weekdays. On site, I did various building work such as flooring, painting, tiling, paving and landscaping as well as using various tools and machines. I would also clean and clear the sites. This hands-on work involved climbing ladders and stairs, walking on uneven ground, shoveling, working around scaffolding, carrying and lifting heavier items, working in bent positions and standing for hours at a time. I also used to drive to Bunnings and various hardware stores in my Ute to buy supplies. I used to love it.”[19]
[19]Plaintiff’s affidavit sworn 5 December 2018, PCB 31-32, at paragraphs 5-9
48 In her second further (third) affidavit sworn 8 November 2019, she gave evidence that:
“As explained at paragraph 24 of my affidavit of May 2018, the building and renovation work that I have done has been through a partnership as well as a company. The partnership is my husband and I (Z Maric and M Maric in my tax returns). The company is Williamstown Developments Pty Ltd (‘the company’). I am a Director of Williamstown Developments Pty Ltd. The only other director is my husband. I am also a shareholder in that company. My husband is the only other shareholder.
The company always develops the properties. Sometimes the properties to be developed are purchased by the company, sometimes they are purchased by the partnership, depending on whether the partnership can get finance to purchase the property, and also depending on the size of the project. The larger the project, the more likely the property will be purchased by the company.
In the financial year ending 30 June 2014 I was paid $23,500 by Williamstown Developments Pty Ltd as a franked dividend.
Similarly, in the financial year ending 30 June 2015 I was paid $13,570 by Williamstown Developments Pty Ltd as a franked dividend.
In the financial year ending 30 June 2016 a property at 164 Douglas Parade, Williamstown, which I helped to develop through the family property development business, was sold. It was sold on 5 November 2015 and it settled on 29 January 2016. That property had been purchased in the names of myself and my husband in around 2002. Subsequently we demolished the old house on the property and built two town houses on it. One of the town houses got sold in around 2006. The other one we rented out for some years, then lived in for some years, before selling it in November 2015. As part of the development of that property, I performed numerous physical duties including flooring, tiling and painting, placing cladding on the walls, landscaping, cleaning, supervising some sub-contractors and also managing the project. This sale resulted in a net capital gain to me of $101,265 in that financial year. My husband also received a capital gain of $101,265 for that year from that project.
Since I injured myself in September 2016, I have not done any work for Williamstown Developments Pty Ltd or the partnership M Maric and Z Maric. This includes physical work as a builder and on site, or planning and supervising work. The only task I have performed since September 2016 is signing applications for building permits and related documents, as I am the only one in the family who has a building license. It is for this reason that I have maintained my building license.
In the financial year ending 30 June 2017 I received a distribution of $90,533 from the partnership. This was income received because of the sale of a property at 28 William Street in Newport which resulted in a profit. We bought that property in around 2013, in the names of myself and my husband. We rented it out for about one year. In 2014 and 2015 we demolished the house and built two town houses on the property. Myself and my adult son performed most of the physical work on that job, except for tasks that had to be performed by licensed contractors, such as electricians or plumbers, and framing work that was performed by carpenters. The work I performed on this property included partial lock up work, external tiling, external painting, landscaping, fixing architraves and skirting inside, cleaning, site and safety duties, and extensive supervising and managing the project (and any rectification works that had to be completed). Works on the Newport property finished around January 2015. We then lived in the property for around one year. The property was sold on 5 August 2016 and settled on 5 September 2016. I received this distribution of $90,533 because of the work I had done in the development of the property before I was injured.
In respect of all of the houses that my husband and I have built or renovated, I was never paid a salary or wages for the work that I performed. The way that I was remunerated for my work on these properties was by receiving payments when the houses were sold. The amount of the payments that I received reflected the fact that I had been heavily involved in the planning of these developments and the actual building work.”[20]
[20]Plaintiff’s affidavit sworn 8 November 2019, PCB 118-120, at paragraphs 2-9
49 In the course of the evidence in this case – both affidavit and oral – reference was made to a number of properties purchased, developed, sold or renovated in the course of the property business. The properties referred to, together with some relevant transcript references, were as follows:
(i) 164 Douglas Parade, Williamstown – developed between 2002-2006.[21] Lived in for a period as the plaintiff’s principal place of residence,[22] then sold 5 November 2015;[23]
[21]T108
[22]T154, L11-16
[23]PCB 199
(ii) 28 William Street, Newport – purchased 2013. Property subsequently demolished and two townhouses constructed. One sold 5 August 2016;[24]
[24]T135-138; T214: PCB 199
(iii) 42 Newcastle Street, Newport – purchased 2013 and lived in as the plaintiff’s principal place of residence since 2016;[25]
[25]T8; T135
(iv) 96 Wilkins Street, Newport – purchased in 2015.[26] In 2018, the subject of an application for a planning permit to develop the property, which was subsequently rejected and the development has not proceeded.[27] The property continues to be rented out.
[26]T9, L8
[27]T98-99
(v) 28 Johnston Street, Newport – this property was created as a consequence of the subdivision of 42 Newcastle Street. It was developed in 2019 and sold in the last financial year;[28]
[28]T9; T92-96; T148; T233
(vi) 34 Truman Street, South Kingsville – property developed and sold in 2009 and 2010;[29]
[29]T8
(vii) Watts Street, Spotswood – purchased in 2007 and sold in 2012;[30]
[30]T8
(viii) Freeman Street, South Kingsville – developed in 2007 and sold in 2009/2010;[31] and
(ix) 3 Stapley Crescent, Altona North – property not owned by the plaintiff but renovation being undertaken through the property business.[32]
[31]T20
[32]T9
50 Pausing. The evidence in this case paints a picture of a person who was not afraid of hard work. She was active in many aspects of the property business in both a planning/organisational manner, but also in a hands-on manner. It is also worth keeping in mind she also had a full-time factory job at Sakata.
51 In cross-examination, the plaintiff confirmed that she had completed an extensive course to obtain her licence as a qualified builder, and that it had provided her with all necessary knowledge needed to work as a qualified builder.[33] Amongst other things, in order to obtain the building licence, she had to demonstrate competency to a professional standard in a range of building-related activities such as permits, contractual arrangements, safety, managing subcontractors, planning and the like.[34] She agreed that she was the best person within her family to get the building licence, “Because I was more like doing this job on the building site than my husband, and I more understand English than him”.[35]
[33]T45, L20-22
[34]T62, L6-12
[35]T80, L12-16
52 Initially she bought properties in her own name with her husband, and then at some point in time they received accounting advice that led to a range of other vehicles through which to do the property development.[36] She confirmed in cross-examination that she had acted in accordance with her accountant’s advice about business structures, the names under which they operate, and how money passes from a company to her.[37]
[36]T81, L14-16
[37]T81, L18-23
53 The plaintiff accepted as a broad proposition that there was a development cycle to property development. In particular, she accepted when it was put to her in cross-examination, that as the property work became more sophisticated, it might take two or three years from the beginning of the concept until the property was sold or otherwise rented out.[38] She accepted that insofar as managing the flow of money, sometimes there would be a lot of money going out and not much coming in, but it would sort itself out over time as properties were sold.[39]
[38]T82, L13-21
[39]T83, L4-9
54 The plaintiff was asked questions relating to her taxation returns. She conceded, via her Counsel, that the taxation returns were prepared on the advice of her accountant as to appropriate arrangements.[40] She further conceded via her Counsel that as a director or a trustee in relation to certain companies, she had a theoretical legal entitlement to control funds.[41] Her evidence regarding her taxation returns and how funds had been distributed in the returns was that she relied on the advice of her accountant.[42]
[40]T125, L16-18
[41]T152, L9-15
[42]See as an example T83, L23
55 The property business was effectively a second job for the plaintiff. She was not challenged about the extent of her involvement in it. It was more than just a hobby or “flipping” the family home. It is clear, from the various taxation returns for the entities involved with it, that it became a relatively sophisticated business with a substantial turnover.
56 The difficult question to answer is what, if any, “income from personal exertion” the plaintiff derived from the property business. However, the fact it may be a difficult or even a novel question, does not relieve me of the obligation of examining the whole of the evidence and answering the question upon a consideration of the evidence.[43]
[43]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [67]
57 The starting point is the expression “income from personal exertion” as defined in s6(2) of the TAA. In respect to the property business, the plaintiff ultimately relied upon s6(2)(b) and (e) of the definition.[44]
[44]Exhibit P2, paragraph 10
58 In respect to the expression “income from personal exertion” in s6(2) of the TAA, in Nicholson v Victorian WorkCover Authority,[45] the Court of Appeal considered the construction of s6(2)(a). The parties did not take me to any other authority on point. In Nicholson, it was noted that “the task of statutory construction must begin and end with a consideration of the statutory text”,[46] and in the present case, neither party sought to argue otherwise.
[45][2016] VSCA 146
[46]Nicholson (ibid) at paragraph [19]
59 Turning firstly to the issue of the capital gain as disclosed in her 2016 taxation return, the plaintiff submits that the capital gain falls within the definition contained in s6(2)(e) because, on a plain reading of the legislative provision, she received profit from the sale of a property that had been acquired by her “for the purpose of profit-making by sale”. In particular, she submits that “income received by way of capital gain is not specifically excluded (such as income by way of dividend) from the definition of ‘income from personal exertion’”. She says that a capital gain squarely fits within the definition of either the proceeds of a business, or profit arising from the sale of any property acquired by the person for profit-making. Also, the Act does not make reference to income tax legislation and is not concerned with the manner in which ‘profit’ presents itself on a taxation return (save for the types of profit it specifically excludes). In this case, the plaintiff had developed two townhouses, sold one and then later sold the other. She says the fact that the income is achieved by way of capital gain does not deprive it of being considered “income from personal exertion”.[47]
[47]Exhibit P2, paragraph 15(a)
60 I do not accept the plaintiff’s submissions regarding the capital gain. Firstly, the capital gain arose from the sale of 164 Douglas Parade, Williamstown (“Douglas Parade”). The evidence discloses that Douglas Parade was purchased in the names of the plaintiff and her husband in 2002. After purchasing that property, the plaintiff (together with her husband) demolished the house on it and built two townhouses on the land, one of which was sold in 2006.[48] The remaining townhouse was rented out until 2010, when the plaintiff and her family relocated there and lived in it as the principal place of residence. The second townhouse was then sold in late 2015.[49] In cross-examination, the plaintiff conceded that she did no development work on Douglas Parade after 2006, and if in fact the property increased in value after that date, it was her luck due to the rising property market.[50] This evidence is confirmed by her accountant, Christopher Dodson, who, in a letter explaining the operation of the property business and the various people and entities associated with it, acknowledged that the capital gain related to the ownership of the property.[51]
[48]T108
[49]PCB 119, paragraph 6
[50]T120
[51]PCB 193
61 Bearing in mind that the plaintiff bears the overall evidentiary burden, I am not persuaded that Douglas Parade was acquired by her for the purpose of profit-making by sale or from the carrying on or carrying out of any profit-making undertaking or scheme. The evidence is unclear as to whether that part of Douglas Parade, being the townhouse that was not sold until 2015, was in fact always intended to be the family home/principal place of residence, noting that she lived there between 2010 until the sale of it in 2015.
62 Earlier in these Reasons I set out in full the relevant evidence regarding the property business as contained in the plaintiff’s affidavits. In her third affidavit, at paragraph 6, she says that she helped develop Douglas Parade through the family property development business before it was sold in November 2015. It could be inferred that the property had been purchased to be developed for profit, but equally, it could be inferred it had been developed to at some point be her principal place of residence. There is no direct evidence as to why the decision was made to sell the property in November 2015. There is no direct evidence of any ‘personal exertion’ by the plaintiff in regard to Douglas Parade in the three years before she was injured. In short, on the evidence, the plaintiff has failed to discharge her evidentiary burden to satisfy me that the Douglas Parade sale in 2015 was in fact a sale of property acquired for the purpose of profit-making by sale.
63 In closing submission, the plaintiff also asserted, that “the evidence is clear” that the amounts in her taxation returns in the several years prior to injury were amounts from the operation of the property business. I reject that submission insofar as it relates to the capital gain. The genesis of the property business was the plaintiff (and her husband) developing, improving, or subdividing land on which the family home was located for sale. It is not clear whether Douglas Parade is anything other than an example of the sale of the family home, which would not come within s6(e) of the TAA, notwithstanding a capital gain was realised upon the sale.
64 Further, I prefer and accept the submission of the defendant that capital gains are ordinarily “income from property”, which is the antithesis of “income from personal exertion”, particularly in circumstances where, at the risk of repetition, there is a lack of clear evidence that the Douglas Parade property was purchased solely for profit-making.
65 There is a further difficulty for the plaintiff seeking to rely on the capital gains as “income from personal exertion”, namely the requirement in s325(2)(f)(ii), which provides that –
“the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been 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.”
(My emphasis).
66 The capital gain contained in the plaintiff’s 2016 taxation return, on any view of the evidence, relates to development done to Douglas Parade between 2002 and 2006, and certainly does not relate to anything done after 2010, when it became her principal place of residence. On those facts, I do not consider that taking the capital gain into account does “most fairly reflect” the plaintiff’s earning capacity had the injury not occurred, even though it was realised in her 2016 taxation return.
67 I am fortified in my conclusion that it does not “most fairly reflect” her “but for injury” earning capacity by the fact that, in the relevant three years before she was injured, the plaintiff was involved in redevelopment of the property known as 28 William Street, Newport (“William Street”) which was purchased in around 2013,[52] rented out for “about one year”, demolished, and then developed into two townhouses. One or the other of those townhouses was sold in August 2016 and settled on 5 September 2016, after the plaintiff had lived in it for approximately one year. The evidence tends to the conclusion that William Street was a property purchased for development and sale for profit, and that the plaintiff applied personal exertion to the development of William Street, including while she was living in Douglas Parade and working full time at Sakata.
[52]PCB 119
68 Therefore, even if in a particular factual scenario, a capital gain could fall within the expression “income from personal exertion” as defined in s6(2)(e) of the TAA, based on the evidence before me I reject the plaintiff’s submission that I can rely on the capital gain as disclosed in her 2016 taxation return for the purposes of measuring her “but for injury” earning capacity.
69 However, the partnership distribution disclosed in the plaintiff’s 2017 taxation return may be in a different category. As already mentioned, the defendant accepts as a matter of principle that a partnership distribution can, on an appropriate factual and evidentiary basis, be within the expression “income from personal exertion” as defined in s6(2)(b) of the TAA.
70 William Street was developed as part of the property business in the three years before the plaintiff was injured. On a plain reading of s6(2)(b), a partnership distribution falls within the definition as “the proceeds of any business carried on by that person either alone or in partnership with any other person”.
71 The defendant’s challenge to the plaintiff relying upon the partnership distribution is, in effect, based on the submission that it was not a partnership distribution as such – notwithstanding that was how it was characterised by her accountant for taxation purposes – but was a “distribution of funds which was considered to be most favourable for taxation purposes at the time”.[53]
[53]Exhibit D3, defendant’s submissions at paragraph 23
72 The defendant concedes that “there is no suggestion with regard to any of the accounting that there is anything improper”.[54]
[54]T195
73 The defendant submits that “[t]he only issue that the defendant raises in relation to the accounting is that there is an artificiality about it for the purposes of this Act, we understand that for the purposes of taxation constructs and entities and distribution of money around groups of companies”,[55] and that “[s]o personal exertion on her evidence had nothing to do with the allocation, and even if it did, there is no evidence about how and to what extent and what the impact of that allocation is to any amount that should be attributed to the plaintiff”.[56]
[55]T195
[56]T197
74 Pausing there, it is worth remembering that the determination that I must make as to the plaintiff’s “income from personal exertion” is for the purposes of a gateway provision, based on the whole of the evidence. It is not an assessment of damages and, in the end, it is a matter of judgment for the purposes of a gateway provision.[57]
[57]Yirga-Denbu v Victorian WorkCover Authority (supra) at paragraph [89]
75 In that regard, I repeat my earlier conclusion that the plaintiff was involved in a genuine business of property development. It can safely be described as a second job in addition to the Sakata employment. That business involved, amongst other things, the development and the sale of William Street. The proceeds from that sale were distributed to the plaintiff by way of a partnership distribution, based on the advice from her accountant. It is not suggested that there was anything inappropriate or improper about the accounting advice or the distribution by way of partnership return. It is hard to see then on a plain reading of s6(2)(b) of the TAA how that distribution is not properly “income from personal exertion”. Indeed, the proceeds from the sale of William Street could also be said to fall within the definition in s6(2)(e), although that was not how she put her case.
76 Therefore, I conclude that the partnership distribution in the 2017 taxation year does fall within the definition of “income from personal exertion”. However, again bearing in mind that I am dealing with a gateway provision, and in circumstances where I accept that the plaintiff was “employed” in the property business and exercising her ‘capital asset’ in that business,[58] even if it does not, strictly speaking, fall within the relevant definition – which is not the conclusion that I have come to – it is still evidence I can take into account for the purposes of the statutory formula, to determine the gross income that she was capable of earning from personal exertion for the purposes of s325(2)(f) of the Act.
[58]The Herald & Weekly Times Limited & Anor v Jessop [2014] VSCA 292 at paragraphs [53]-[55]
77 I accept the submission on behalf of the plaintiff that, pre-injury, she was someone “who was very willing and able to exercise her ‘capital asset’”.[59]
[59]Exhibit P2, paragraph 24: see The Herald & Weekly Times Limited & Anor v Jessop (ibid) at paragraphs [53]-[55]
78 Accordingly, I take the 2017 partnership distribution into account as “income from personal exertion” or alternatively evidence of the plaintiff exercising her “capital asset”; namely income that she was capable of earning from personal exertion. But in circumstances where William Street was developed over three years, it is not appropriate, in my opinion, to allow the total amount of the partnership distribution to “most fairly reflect” the plaintiff’s earning capacity from property development in any one year. I reject her principal submission that I should take the entire partnership distribution into account. I accept her alternate submission that it is appropriate to average it over three years, to produce income from personal exertion, expressed as a gross annual figure, of $30,177. Based on the whole of the evidence, I find $30,177 gross per annum to “most fairly reflect” the plaintiff’s “but for injury” earning capacity from the property business, to be applied in the measurement required by statutory formula.
79 In conclusion, the plaintiff’s “but for injury” earning capacity is arrived at by combining the agreed Sakata earnings of $54,969 gross per annum with the property business earnings of $30,177 gross per annum to produce a total amount of $85,146 gross per annum. On the evidence, I conclude that this is the appropriate figure to use to measure her “income from personal exertion” as most fairly reflects her “but for injury” earning capacity.
What is the Plaintiff’s “with injury” residual earning capacity?
80 Sixty per cent of $85,146 is $51,088. Therefore, if the plaintiff’s “with injury” earning capacity is $51,088 or more, then she fails to demonstrate the requisite 40 per cent loss.
81 The plaintiff’s submissions on this point put succinctly are that the Medical Panel has decided the issue of her “with injury” residual work capacity,[60] and that her “with injury” earning capacity should be $45,395 as per the Flexi Personnel report,[61] being the wages of a “inexperienced property manager”. If I accept that submission, then the plaintiff demonstrates the requisite 40 per cent loss and leave must be given to commence a claim for pecuniary loss damages.
[60]Exhibit P2, paragraphs 31-32
[61]3 October 2019, PCB 36
82 Therefore, it is necessary to focus instead on the defendant’s submissions in opposition to the grant of leave.
83 Firstly, the defendant submits that the evidence discloses that the plaintiff is a sophisticated property developer, consistent with holding a building licence, and is an intelligent and resourceful woman with requisite skills and a wealth of relevant knowledge[62] and as such I should adopt a figure for a more senior or experienced Property Manager (Residential), namely the figure in the CoWork supplementary report of 23 January 2020 of $88,868.[63] Of course if I adopt this higher figure, then the plaintiff does not have the requisite 40 per cent loss, when it is combined with the agreed Sakata earnings.
[62]D2, paragraph 50
[63]DCB 95
84 It is convenient at this point to mention the defendant’s submission in respect to the credit of the plaintiff. That submission is essentially contained in paragraphs 60-62 of the defendant’s written submissions.[64]
[64]Exhibit D2
85 As has been said many times before, including by me, in cases of the present kind, the credit of the applicant will often be critically important.[65]
[65]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109 at paragraph [87]
86 Firstly, my overall impression of the plaintiff in the “witness box” was of a truthful witness giving a fair account of events in her life that had occurred before and after her injury. She was generally responsive in cross-examination. She made appropriate concessions, particularly when cross-examined about the fact that it was good luck she achieved a capital gain between 2010 and 2015 for Douglas Street. I consider that I am able to rely on her evidence. I accept there were some inconsistencies as set out in the defendant’s written submission but it is relevant, in my opinion, to remember that she does have limitations in respect to the English language, which is not her first language. She gave the majority of her evidence in English but there were occasions when she needed to resort to the interpreter to understand questions put to her. I accept the submission that there must be an allowance for that.[66] I do not consider this to be a credit case. I do not consider the inconsistencies to be particularly significant when considered as part of the whole of the evidence and having had a chance to assess her demeanour in the witness box.
[66]T231
87 It should not be forgotten that the plaintiff was born and educated in Bosnia, with eight years of primary schooling and four years at business technical school. After leaving school, she married and worked in a small grocery shop until war broke out in Bosnia. She then lived for a while in Serbia before she migrated to Australia as a sponsored migrant. As far as I can tell on the evidence, her one and only pay-as-you-go employment in Australia was at the Sakata factory. She worked at Sakata during different periods on either day or nightshift until she was injured, save for maternity leave. She has very little formal education. I accept her evidence that she cannot use computers. I accept her evidence that she has relied on assistance from family – more recently her son – and from professionals such as real estate agents and accountants for the more complicated tasks associated with the property business.
88 To some extent she is the classic success story of a person who, despite a limited education and language barriers, was able to achieve the great Australian dream through hard work and endeavour. However, with the benefit of having heard and seen the plaintiff in the witness box, it is entirely a different thing, in my opinion, to transfer those skills to the formal role of a Property Manager (Residential). It is relevant, that the plaintiff’s own rental properties have been managed for her by real estate agents. Again, bearing in mind the nature of a gateway provision, I conclude that the appropriate figure to attach to the plaintiff’s “with injury” residual earning capacity as a Property Manager (Residential) is the figure in the Flexi Personnel report of $45,395. If that was the end of the matter, then the plaintiff would demonstrate the requisite 40 per cent loss.
Returning to the issue of the Medical Panel Opinion
89 There is agreement that the Medical Panel Opinion is binding in respect of issues to do with compensable injury/causation, an inability for the plaintiff to return to her pre-injury employment and a residual work capacity as a Property Manager (Residential).
90 Section 313 of the Act provides that for the purposes of determining any question of matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel:
(a) is to be adopted and applied by any court, body or person; and
(b) must be accepted as final and conclusive by any court, body or person.
91 The issue that the defendant submits arises in this case, is the extent to which the opinion is to be adopted and applied and the extent to which it must be accepted as final and conclusive.
92 Pausing yet again, it was, of course, open to either party to have sought clarification or judicial review of the Medical Panel Opinion and I am conscious that it is beyond my power to conduct such review.
93 In written submissions, as developed in oral submissions, the defendant submits that:
“In question 7(a) the Medical Panel was asked to opine as to what employment would constitute ‘suitable employment’ for the plaintiff … The Medical Panel gave its answer pertaining to the employment as a property manager (residential), however, scrutiny of its reasons confirms that as part of its deliberation the Medical Panel had approached its task by only considering the plaintiff’s fitness for pre-injury employment as a packer and her fitness for employment as a property manager (residential), showroom sales assistant/consultant (kitchens and bathrooms), display home consultant (new homes) and real estate sales consultant (residential).”
94 The defendant, in submission, identifies that the Panel Reasons specifically referred to the vocational assessment and market analysis report dated 5 December 2018 prepared by CoWork Pty Ltd which had identified the latter employment options.[67]
[67]PCB 53-54
95 Of course it is the Medical Panel’s answers to the questions as set out in the Opinion which are to be adopted and applied and which must be accepted as final and conclusive.
96 In Yirga-Denbu,[68] the Court of Appeal dealt with the admissibility of the reasons of a Medical Panel. The Court therein stated that there was force in the proposition that, to the extent that the Panel reasons contained admissible evidence about a fact in issue, the reasons were capable of being admitted into evidence and ultimately they were admissible because they contained admissible evidence.[69] However, relevantly in Yirga-Denbu, the Court said it doubted that to admit the reasons to aid the understanding of the answers given by the Panel was a correct basis upon which to admit such reasons.
[68]Supra
[69]Yirga-Denbuv Victorian WorkCover Authority (supra) at paragraph [62]
97 In the case before me there does not appear to me to be any ambiguity in the answers to the questions given by the Medical Panel. That alone is sufficient to reject the defendant’s submission that the issue of work capacity was still a live issue notwithstanding the Panel Opinion.
98 The Reasons may to some extent inform as to how the Panel arrived at the answers in the Opinion expressed by it. I interpret those Reasons to indicate that the Panel was alive to consider, in its words, “the relevant aspects of the definition of ‘suitable employment’ in the legislation and her physical limitations due to her lower back condition”.[70] True it is that the Panel specifically referred to the CoWork report and the jobs therein as identified by the defendant, but that needs to be taken in context – namely that the Panel had various materials and submissions before it, some of which are not in evidence in the matter before me – being a consideration by the Panel of the plaintiff’s residual work capacity. There is nothing in either the Opinion or the Reasons to support a submission that the Panel only considered the four jobs in the CoWork report so as to leave the issue of work capacity as a live issue beyond those four jobs. I reject the submission that it is either necessary or appropriate for me to scrutinise the Reasons, in order to understand and more particularly, in order to adopt and apply as final and conclusive the Panel Opinion. To do so would, in effect, be to undertake a task of judicial review, which is beyond my power. I do not accept either legally or factually that scrutiny of the Medical Panel’s Reasons is appropriate or enlivens me with the ability to go beyond the answers in the Panel Opinion.
[70]PCB 53
99 For the sake of completeness and to fully deal with the defendant’s submissions, even if I am wrong about the application of the Medical Panel Opinion, the ultimate outcome is no different. The defendant submits that notwithstanding the Panel Opinion, “the question of whether employment as a domestic building (manager), and/or her current involvement as a domestic building (manager) in the family business, constitutes ‘suitable employment’ for the plaintiff … and remains a live issue for the Court to consider/determine”.[71]
[71]D2, paragraph 34
100 Dealing then with what the defendant submits – contrary to what I have decided – is a “live issue” as to whether employment as a domestic building (manager) and/or the plaintiff’s current involvement in the family business constitutes suitable employment, her evidence is that apart from some limited, part-time, light duties for a total of a few weeks, she has not worked at Sakata since on or about 28 November 2017.[72] Her evidence is that because of worsening lower back pain, she could not cope with the packing duties. Her unchallenged affidavit evidence is that in respect to the property business, “since my injury I have been unable to continue to undertake any of the physical work that I once did in relation to this activity”.[73] Further, the plaintiff’s affidavit evidence is “[s]ince I sustained my injuries in 2016, I have had to largely give up my role in the business. My son has stepped in.”[74] The plaintiff’s evidence in that regard is corroborated by the affidavit of her son, Rade Maric. In his affidavit sworn 5 December 2018,[75] he notes that since 2013, he has largely undertaken the administrative and bookkeeping duties with the family business. He notes becoming more involved in the business since 2013 and that “[a]fter my mum injured herself in September 2016, she has been unable to be hands on and physically involved in the development business”.[76]
[72]PCB 22
[73]PCB 28
[74]PCB 32
[75]PCB 33
[76]PCB 34
101 Returning to the plaintiff’s evidence, in her third affidavit sworn November 2019, she says further that:
“Since I injured myself in September 2016, I have not done any work for Williamstown Developments Pty Ltd or the partnership M Maric and Z Maric. This includes physical work as a builder and on site, or planning and supervising work. The only task I have performed since September 2016 is signing applications for building permits and related documents, as I am the only one in the family who has a building license.”[77]
(sic).
[77]PCB 119
102 In circumstances where I accept that the credit of the plaintiff has not been impugned, I accept her evidence that other than limited, passive involvement through the holding of the building licence, she has ceased work in the family business. I accept that but for being injured, she intended to continue in the business. I conclude that she has ceased work in the property business because of her back injury. In support of this conclusion, I note the opinion of Professor Richard Bittar, her treating neurosurgeon, that when he last saw her in September 2018, the plaintiff did not have the capacity:
“… to perform suitable employment, including her pre-injury employment with Williamstown Developments where she worked as a registered builder … Specific limitations that would prevent her from performing these duties are those described in Answer to Question (5). These will continue for the foreseeable future.”[78]
[78]PCB 199
103 A similar opinion is expressed by Dr Peter Andrianakis in his report dated 25 January 2020.[79] It is unclear from that report when he last saw the plaintiff but it appears to be some time after a review by the neurosurgeon, Mr Drnda, in November 2018.[80] In any event, in circumstances where there is no suggestion that her condition has improved in recent times, Dr Andrianakis states that –
“Because of her ongoing lower back pains and leg weakness despite treatment with surgery, physiotherapy and pain management, she remains unfit for work.”[81]
[79]PCB 200
[80]PCB 203
[81]PCB 203
104 The opinions of Professor Bittar and Dr Andrianakis, who have treated the plaintiff over several years, is that she has no residual capacity for “suitable employment”. Bearing in mind the extent to which their opinion is inconsistent with the Medical Panel Opinion that the plaintiff can now work in property management, I accept their opinion with that qualification. I conclude that the plaintiff is unfit and in fact is not working in property development. As such, the ‘live issue’ – if it exists – is determined against the defendant.
Summary
105 Following on from the previous paragraph, I conclude that the plaintiff’s “with injury” capacity is limited to the work as identified by the Medical Panel as a Property Manager (Residential).
106 The materials are replete with comments regarding the plaintiff’s limited education, lack of computer skills and how she has relied upon others, even when pursuing a successful property business. All of those factors are such that, taking a broad approach for the purposes of a gateway provision, I conclude that the figure that the plaintiff is now “capable of earning in suitable employment” is the figure suggested by Flexi Personnel of $45,395 gross per annum. As set out in these Reasons, the plaintiff’s “without injury” figure is $85,146[82] and therefore $45,395 is less than 60 per cent and the plaintiff has demonstrated the requisite 40 per cent loss.
[82]At paragraph 67 of these Reasons
107 Therefore, I conclude that the plaintiff has suffered a “serious injury” for both the pain and suffering and pecuniary loss consequences and I grant leave to her to commence a proceeding for both heads of damages.
108 The “minefield” has been navigated.
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