Marinovic v Contrax Plumbing Pty Ltd
[2010] VCC 1321
•25 August 2010 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT GEELONG
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-07-04807
| JOSIP MARINOVIC | Plaintiff |
| v | |
| CONTRAX PLUMBING PTY LTD | First Defendant |
| and | |
| MIRVAC CONSTRUCTIONS | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 16 and 17 August 2010 |
| DATE OF JUDGMENT: | 25 August 2010 (Revised) |
| CASE MAY BE CITED AS: | Marinovic v Contrax Plumbing Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1321 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – identification of consequences of organic injury to the lumbar spine – application in respect of pain and suffering and loss of earning consequences in a worker under the age of 26 years as at the date of injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC and | Ryan Carlisle Thomas |
| Mr A E A McNab | ||
| For the Defendants | Ms A M Magee | Wisewould Mahony |
| HIS HONOUR: |
1 In this application, the plaintiff seeks leave to commence a proceeding claiming damages for injuries suffered by him in an incident which occurred in the course of his employment with the first defendant on 2 March 2005. It is not in issue that on that date, the plaintiff suffered an injury to his low-back in the form of a lumbosacral disc protrusion at the L5-S1 level and that the injury has resulted in a permanent impairment in the function of the low-back. The primary dispute in this application relates to whether the effect of that impairment has been such as to cause the plaintiff to suffer a loss of earning capacity sufficient to meet the definition of “serious injury” as set out in the Accident Compensation Act 1958 (as amended) (“the Act”). Whilst the defendant also takes issue with the severity of the pain and suffering consequences associated with the injury, this aspect of the matter received very little attention in the course of the application.
2 In the course of the application, the plaintiff gave evidence and was cross- examined. In addition, the plaintiff’s treating general practitioner, Dr M Amirgol, gave evidence and was cross-examined, as did Ms Margaret Leitch, who is a vocational counsellor. Otherwise, the parties relied upon various affidavits and medical reports which appear in their respective Court Books.
3 The plaintiff relies upon two affidavits sworn by him, the first on 9 April 2007 and the second on 8 August 2010.
4 In his first affidavit, the plaintiff deposed to the fact that he was born on 27 November 2007 and that at the time of his injury he was employed by the first defendant as a qualified plumber. He described the effect of the accident upon him, both with respect to pain and suffering and loss of earning capacity, in the following terms:
•
He said that he had a level of pain in his back which was present all of the time and that his pain fluctuated depending upon the activity in which he engaged. He described standing and sitting as aggravating his back pain and said that, whilst he could on some days stand for up to one hour, on other days his standing tolerance may be limited to only ten to fifteen minutes. He described even slight leaning over as causing an increase in his symptoms and said that to manage his symptoms he needed to change his position reasonably frequently. He said that leaning over a sink to wash dishes or leaning over a basin to brush his teeth made his back pain worse, as did his daily exercise routine of walking his dog for approximately half-an-hour.
•
He said that following his injury, he had returned to light duties with the first defendant but that he had subsequently been retrenched. Since his retrenchment he said he had worked on a casual basis for a short period of time as a truck driver for his brother-in-law who conducted a demolition business in Geelong. He said that in this work he had been able to drive for approximately one hour before he had to “stop and get out of the truck to walk around and stretch”. He said that he had been unable “to sit in the seat and tolerate the bumps and rough ride through the body of the vehicle” and commented: “might be able to drive for one or two hours a day at best”.
5 Each of the matters to which I have referred above were not the subject of challenge by the defendants.
6 In his second affidavit, the plaintiff deposed that:
•
He had undergone a pain management course at the Geelong Hospital in May-June 2010 which had taught him the importance of identifying his limitations and working within those limitations;
•
He had received minimal assistance from the defendants’ rehabilitation service and, accordingly, had taken it upon himself to approach the Commonwealth Rehabilitation Service (CRS) in order to gain assistance in attempting to find suitable employment. He said that CRS had paid for him to undergo training for employment in the security industry, that it had funded his obtaining a Certificate II qualification and that he had met the cost associated with commencing his Certificate III qualification. He said that he had been recently offered a job to work as a security officer at the Waurn Ponds Cinema which involved undertaking two 4-hour shifts on a casual basis.
•
He believed he retained a capacity, at most, to work for fifteen or twenty hours a week over a sustained period, stating that ideally he would be able to have a day off in between working days in order to recover.
•
Whilst undertaking his apprenticeship, he had developed skills in the installation and fitting of central heating and air conditioning but that he wanted to work as a plumber on commercial construction sites “because the money was very good” and it was for this reason that he had commenced employment with the first defendant. He said that it had been his intention to have a long and fulfilling career as a plumber; that he had intended to continue working on commercial building sites but that he also held the aspiration of one day commencing his own plumbing business.
•
He continued to suffer from constant low-back pain which was aggravated by activities such as bending, lifting, twisting or stooping. He said that the pain radiated into his buttocks and at times into his right leg and calf and that he suffered every day from pins and needles in his heel and in the sole of his foot. He described his ability to stand, sit or walk for lengthy periods as being restricted and said that his pattern of sleep was poor. He said that during the night he was often woken by pain in his buttocks and low-back and that he was required to sleep with a pillow between his legs. He said that at times his pain affected his physical relationship with his wife.
7 The evidence given by the plaintiff in his second affidavit to which I have referred was largely unchallenged.
8 In the course of his viva voce evidence-in-chief, the plaintiff said that:
• He effectively did not sit his Year 12 examinations because he knew he was going to be a tradesman. He said that his father and both his brothers were tradesmen, that he thought he would give plumbing a go and that “I liked it”. • Having completed his apprenticeship which involved working in central heating and air conditioning, he commenced looking for work on construction sites because “the money was better so I wanted to – yeah, work on construction sites”. • He needed to take medication in the form of two tablets of Endep 50 at night and also employed Panadeine Forte when he suffered flare-ups of his symptoms. He said that this occurred on average three times a month. 9 In cross-examination, the plaintiff:
•
confirmed that he was a registered plumber but had not applied to become a licensed plumber. He said however that he thought he was capable of completing the tests necessary to attain that position. He agreed that overtime was not necessarily available in the construction industry and that the availability of overtime varied from job to job.
•
said that he had ceased employment as a truck driver with his brother-in- law because the work was very difficult for him to undertake on a full or part-time basis but the fact that the business had gone quiet was also a factor in his ceasing employment.
•
said that that he possessed virtually no computer skills and that the vocational assessor at CRS had identified security work as work which he might be capable of and it was on the basis of that recommendation that he had undertaken his Certificates. He described having completed the core components of his Certificate III and said that he did not intend to complete his Certificate III unless his Certificate II qualifications were not adequate to generate employment within his capabilities. He agreed however that he would like to complete his Certificate III and move into a managerial role if that suited his restrictions, and that he had the option of doing training in control room work, dog training and undertaking cash- in-transit work. When asked whether he might be able to manage managerial work, the plaintiff responded:
“Well, my back’s giving me troubles. It doesn’t matter what, every day I’m in pain. It’s one of those things where – I’ve never been a manager; I don’t have the experience of being a manager, and if I was able to do that, I don’t think I would be capable, because I’m a tradesman. But like I said, if it was suitable with my restrictions I, yes, would give it a go.”
• said that whilst initially he had not been able to tolerate the drive from Geelong to Melbourne without taking rest breaks, that by employing the techniques he had been acquainted with in the course of his rehabilitation both at Cedar Court and at the Geelong Hospital, he was now able to make that journey without a break. He agreed that he would be able to travel from his residence to Geelong or to Waurn Ponds in order to work. 10 It was put to the plaintiff that a number of doctors had opined that he may be capable of working for more than fifteen to twenty hours a week. The plaintiff disagreed with this, maintaining that he thought his capability was between fifteen to twenty hours a week and that his general practitioner agreed with this.[1] He agreed that he was keen to find work and to be re-trained and that he was waiting with the expectation that he would commence work as a security guard at the Waurn Ponds Cinema. He was asked whether he would be able to undertake static security work which involved looking at a television screen, and responded:
“As long as I could get up and stretch and go for a walk or whatnot, sit
down, yep.”
[1] Transcript (“T”) 38
11 The plaintiff described his pain as being stabilised and said that, in his opinion, there had not really been an alteration in his level of pain since his injury.
12 It was put to the plaintiff that he would be able to work in the plumbing industry within a service department of a plumbing supplies store. He said that he would be unable to undertake that work as his experience of the duties required of that occupation was one which involved assisting tradesmen in loading their trucks with purchased items which often involved heavy lifting. He was asked whether he could manage a job of this type if no lifting was involved, and responded:
“I am not a people person, I’m a tradesman. So it would be a bit hard with no experience to sell stuff to somebody if you’ve never done it before. It would be very hard I think. I think I need a lot of training before.” (sic)
13 The plaintiff was cross-examined as to the statement made in his affidavit that, but for his injury, he would be earning between $80,000 and $100,000 per annum and said that he based that evidence upon the income he was earning at the time at which he was injured and responded:
“… I know friends at the moment now that are on a lot more than that
that are plumbers.” (sic).
14 In re-examination, the plaintiff said:
•
That the two pain management programs which he had undertaken had not made any difference to his level of pain or to the number of hours that he could work.
•
That working in Melbourne was beyond his capabilities if it involved him driving from Geelong to Melbourne every day, and that his tolerance for both sitting and standing was between thirty and forty minutes, after which time he developed intense pain. He described the activity of sitting as being a greater problem for him than standing. He said that in undertaking his training for security work, he did all the aspects of the course other than the –
“… physical stuff. You know, holds and arm bars and stuff like
that I didn’t do, because of my back.”
15 The plaintiff was asked whether, if his work as a security guard required him to restrain someone, he would be able to cope with that activity, to which he responded “no”. He said that on completion of his studies with Hume Security, he had been offered a job with that company but he was unable to take the position as it required him to work in eight-hour shifts.
16 I found the plaintiff to present as a most impressive young man for the following reasons:
•
At the age of twenty-four, he had suffered an injury which had prevented him from working in his trade and had imposed significant consequences upon him, both with respect to pain and his ability to tolerate activity. Notwithstanding the above, the plaintiff had returned to light duty employment with the first defendant, subsequently attempted work as a truck driver and finally, with little assistance from his WorkCover rehabilitation provider, made contact with CRS and re-trained as a security operative. In my opinion, this conduct bears testament to the plaintiff’s character.
•
Further, the fact that no medical practitioner who has either treated the plaintiff, or examined him for the purpose of this application, has taken issue with the plaintiff’s description of his level of symptoms or his capacity for activity, attests to the accuracy of the evidence given by him as to his level of symptomology.
•
Finally, I had the opportunity of observing the plaintiff over the course of two days whilst he gave evidence and sat in Court. Throughout that time, the plaintiff’s need to change his position whilst sitting and to move from a sitting and standing position was completely consistent with the evidence given by him as to his tolerance for those activities.
17 In these circumstances, and in the context of the fact that in cross- examination the defendants took little issue with the plaintiff’s evidence as to his level of symptoms or his tolerance for sitting, standing, walking or driving, I accept the plaintiff’s evidence upon those issues.
The Medical Evidence
18 The plaintiff’s general practitioner, Dr M Amirgol, has provided six medical reports, the most recent being 2 August 2010, in which he expressed the opinion that the plaintiff was fit “to work within his light duty restriction for fifteen hours per week at this stage”.
19 Dr Amirgol gave viva voce evidence in the course of the proceeding. During cross-examination, he expressed the opinion that whilst he agreed with the proposition that any return to work program which involved suitable duties for the plaintiff should commence with the plaintiff attempting to work between fifteen and twenty hours per week, he did not accept that the plaintiff had a capacity to work for up to thirty hours per week. Dr Amirgol said that upon the completion of his rehabilitation program, the plaintiff felt more confident in his ability to self-manage his pain by implementing the strategies that he had been taught and that the plaintiff wanted to start working. He accepted the position that the plaintiff possessed a capacity to work in the plumbing industry if he was not required to handle heavy weights and that he may have a capacity for truck driving but not on a full-time basis.
20 In re examination, when asked to opine as to:
•
The plaintiff’s likely capacity for suitable employment in terms of hours per week, Dr Amirgol said:
“From the beginning till now my opinion was at the least [indistinct] with the courage that he has to be given the chance to try 4 or 5 hours a day with adequate time breaks in between to test him and then to start initially at 15 hours per week based on his tolerance if he can tolerate it.”
• The probability of the maximum hours per week that the plaintiff was likely to be able to work in the foreseeable future, Dr Amirgol expressed the opinion that this would be limited to fifteen to twenty hours. 21 The plaintiff had been under the care of Mr Michael Vagg, a specialist in rehabilitation and pain medicine. In reports dated 19 September 2008, 24 October 2008 and 8 January 2010, Dr Vagg described the plaintiff as presenting with discogenic pain with probable nerve root impingement of the S1 nerve root, in treatment of which Dr Vagg administered a sequence of medial branch nerve blocks which he said had failed to influence the plaintiff’s level of pain. Dr Vagg said that he had referred the plaintiff to the Pain Management Unit at the Geelong Hospital for participation in an intensive cognitive behaviour course. He said that this program was significantly different to the program which the plaintiff had previously undergone at Cedar Court, in the course of which a program of functional restoration had been emphasized. He opined that as at June 2009, the plaintiff was –
“… fairly disabled by pain and had sufficiently restricted sitting and
standing tolerances to render him unfit for paid employment.”
22 In a further report dated 2 August 2010, Dr Vagg opined that:
“Having conferred with the team who worked with Josip during his Impact Program,[2] I am able to confirm that we support the assessment of the occupational medicine doctor who assessed that your client would be medically capable of working part-time for 15 to 20 hours per week in suitable employment.”
[2] The rehabilitation program to which the plaintiff had been referred at the Geelong Hospital
23 In a report dated 6 July 2007, Mr W H Huffam, an orthopaedic surgeon, expressed the opinion that the plaintiff possessed the capacity for suitable employment which did not require him to undertake any heavy lifting or stress his back in a bent position. He noted that the plaintiff had passed his Year 12 and had gained a trade qualification, and that –
“… he should have a capacity for further training and abilities to work in
an occupation which will put less stress on his back.”
24 Mr Peter Wilde, an orthopaedic surgeon, examined the plaintiff on two occasions: 12 February 2008 and 5 August 2010. At the time of his most recent examination, Mr Wilde opined that the plaintiff had sustained a lumbosacral disc injury in the course of his employment with the first defendant and that the effect of this injury had been to preclude him from continuing his employment in his trade as a plumber. He opined that the plaintiff possessed a work capacity for sedentary or light duties and that, although he had few transferrable skills, he had a capacity to work as a truck driver providing he was not required to load or unload transported goods.
25 In his report of 12 February 2008, Mr Wilde described the plaintiff as a person who did not exaggerate his physical findings and said that he had obtained a history from the plaintiff that:
(i) He was able to walk only up to one kilometre, to sit for half an hour and to stand for half an hour; and (ii) He could not manage car journeys which exceeded one hour.
26 Given that Mr Wilde accepted this history as accurately representing the plaintiff’s capacities in this regard, I do not find his opinion that the plaintiff was fit for work as a truck driver to be convincing.
27 In his second report, Mr Wilde expressed the view that the plaintiff had a capacity to perform suitable employment in security work commencing with a four-hour shift, two days per week, and building up to eight hours over four months. In this regard, I understand Mr Wilde to be expressing an opinion that the plaintiff had a potential capacity of working in the vicinity of sixteen hours in suitable employment per week and that his condition was largely stabilised.
28 Dr Robyn Horsley, an occupational physician, examined the plaintiff on 18 October 2007. She obtained from the plaintiff a history as to his sitting, standing and driving tolerances which was very similar to that to which the plaintiff had deposed in his affidavits and that which was obtained by Mr Wilde.[3] Dr Horsley expressed the opinion that the plaintiff had a capacity for appropriate work which involved the following restrictions:
[3] Namely, that the plaintiff’s tolerance for each of these activities was between forty-five and sixty minutes.
ƒ avoidance of over reaching; ƒ avoidance of pushing and pulling; ƒ avoidance of lifting items greater than 12 to 15 kilograms on a
permanent basis;
ƒ avoidance of lifting items of 10 to 12 kilograms on a repetitive basis; ƒ avoidance of working in awkward and confined spaces; ƒ avoidance of repetitive bending and lifting; ƒ avoidance of static forward flexion involving the lumbar spine; ƒ avoidance of sitting for periods greater than forty-five to sixty minutes
without changing posture;ƒ avoidance of static standing for greater than forty-five to sixty minutes
without changing posture;ƒ avoidance of walking for greater than forty-five to sixty minutes; ƒ avoidance of repetitive stair climbing; ƒ avoidance of repetitive ladder climbing.
29 Dr Horsley expressed the opinion that the plaintiff was permanently incapacitated for work as a plumber and that whilst, at this time, his capacity for work would lie between fifteen and twenty hours per week in suitable duties, she qualified this statement, opining that –
“… with conditioning he may well be able to increase his hours. His ability to increase his hours will be determined by the response to the pain management program.”
30 With respect to the opinion expressed by Dr Horsley in this regard, it was the plaintiff’s evidence that, having completed his pain management programs, he did not feel that that those programs had made any difference to the number of hours which he could work.[4] The plaintiff’s evidence in this regard was consistent with the evidence of Dr Vagg and the team at the Geelong Hospital who conducted the plaintiff’s most recent rehabilitation program, namely that the plaintiff –
“… would be medically capable of working part-time for 15 to 20 hours
per week in suitable employment.”
[4] T 52
31 There was no suggestion that in making this statement the opinion was qualified as referring to an initial capacity which might be the subject of improvement. In the circumstances, taking into account the plaintiff’s evidence and that of Dr Vagg that the plaintiff has completed two rehabilitation programs[5] with little improvement in his capacity to tolerate activity, I am satisfied that I should interpret Ms Horsley’s opinion that the plaintiff presently possessed a capacity to work in suitable employment for a period of between fifteen and twenty hours per week as representing her opinion as to his permanent capacity.
[5] The first being at Cedar Court (which emphasized physical re-conditioning and which Dr Vagg commented achieved fairly indifferent results), and the second of which involved cognitive training (which Dr Vagg opined had “the best risk benefit analysis” for the plaintiff)
32 Associate Professor R Bittar, a neurosurgeon, undertook a medico-legal assessment of the plaintiff on 21 May 2010. He expressed the opinion that:
•
The plaintiff was unable to sit or stand for more than thirty minutes without experiencing a deterioration in his pain levels and that he possessed a capacity to walk for up to forty-five minutes on flat ground before requiring a rest, and that these restrictions were likely to persist for the foreseeable future;
•
The plaintiff had lost any capacity to undertake his pre-accident work and that this incapacity was permanent;
•
The plaintiff had a capacity to perform suitable employment in which he would experience a number of restrictions, predominantly involving sitting, standing, walking, bending, lifting, pushing and pulling. He opined that whilst he would expect that initially the plaintiff could only work part- time in suitable employment, it was likely that he would be able to work up to six hours per day, five days per week if an appropriate position was found.
33 Whilst I find the opinion of Professor Bittar that the plaintiff has a permanent capacity for only part-time work to be well-founded, I am of the opinion that the plaintiff’s general practitioner, together with Dr Vagg and the assessment team at the Geelong Hospital, are in a superior position to opine as to the maximum hours per week which the plaintiff is likely to tolerate in future employment, namely, between fifteen and twenty hours per week, and I prefer their evidence on this issue.
34 Mr Michael Shannon, an orthopaedic surgeon, has examined the plaintiff on behalf of the defendants on five occasions between September 2007 and 20 May 2010. On each occasion, Mr Shannon took no issue with the fact that the plaintiff’s symptoms were organically-based or that his condition had essentially stabilised. It was Mr Shannon’s opinion that the plaintiff, throughout the period of his examinations, possessed a capacity for light physical work with restrictions upon prolonged or repetitive bending or heavy lifting.
35 It is submitted on behalf of the defendants that Mr Shannon’s opinion, that the plaintiff is presently fit for full-time restricted employment, is persuasive given the number of opportunities which Mr Shannon has had to consider that issue. I note however that at no time in obtaining a history from the plaintiff did Mr Shannon seek to obtain any information as to the plaintiff’s tolerance for sitting and standing. Having regard to the significant restrictions from which I am satisfied the plaintiff suffers in this regard, and the obvious impact of those restrictions upon the plaintiff’s capacity for full time employment, I find the opinion expressed by Mr Shannon, as to the plaintiff’s capacity to perform full- time work, as being unpersuasive, and I prefer and accept the assessments made by the plaintiff’s treating general practitioner and Dr Vagg in this regard.
36 Ms Margaret Leitch, an occupational therapist and vocational counsellor, has provided a number of reports dated 29 October 2008; 6 November 2008; 15 June 2010 and 5 August 2010. In each of these reports, Ms Leitch considered the employment positions which it had been suggested, on behalf of the defendants, the plaintiff possessed a residual capacity to undertake. In examining those positions, Ms Leitch considered the activities involved in each occupation on the basis of the Australian and New Zealand Standard Classification of Occupations. Having undertaken that analysis and, taking into account the plaintiff’s physical capacity as described in the medical reports with which she had been briefed,[6] Ms Leitch expressed the opinion:
[6] Which reports I am satisfied provided an accurate description of the plaintiff’s capacity for activity which was consistent with my findings in this regard
• That given the plaintiff’s employment history and functional capacity, he did not possess the capacity to perform each and every duty involved in those occupations. • That notwithstanding any re-training which he may undertake, each of the suggested jobs did not represent work which the plaintiff was capable of performing. 37 In the course of viva voce evidence given by Ms Leitch, she said that whilst it was appropriate to consider the ability to place someone in work which allowed them to participate in a graduated return to work, it was her experience that such positions were only available if a worker was returning to his or her pre-injury employer, or if a new employer was receiving a financial incentive under a WISE scheme. She said that in “the real world” employers sought employees for either full or part-time positions and that they expected applicants for those positions to be fit to work the hours advertised upon commencing employment.
38 When Ms Leitch was taken to the various medical reports which opined that the plaintiff, in suitable employment, may require the opportunity to change posture, to have extra rest breaks or to self-pace his work, Ms Leitch opined:
“There are also features that aren’t usually available when securing a
commercially viable occupation in the open labour market.”[7]
[7] T 138
39 While Ms Leitch accepted the opinions of the various medical practitioners who had expressed the view that the plaintiff was fit for light duties, the approach which Ms Leitch took to her analysis was to compare the range of duties required in the specific occupations listed in the Australian and New Zealand Standard Classification of Occupations and to map those duties with the physical capacity retained by the plaintiff. Having undertaken that process, Ms Leitch concluded that, notwithstanding any retraining he may undergo, the plaintiff was likely to be permanently unfit for work which was available to him in the open labour market.
40 Whilst I considered that there was both substance and commonsense in the evidence given by Ms Leitch, I am not persuaded that there is no job that the plaintiff would be fit to undertake on a part-time basis working no more than twenty hours per week, having undergone suitable re-training.
41 I make this finding primarily on the basis of the assessment I made of the plaintiff as being a person who is genuine in his statement that he wishes to find some area of work which he is capable of undertaking, and is determined to do so. When this evidence is considered in the context of the plaintiff’s young age and the action he has taken to date to rehabilitate himself and to find work which he may be capable of undertaking on a part-time basis, I am satisfied that the plaintiff is unlikely to rest until he succeeds in finding part- time work which he is fit to undertake.
The Calculation Required by Section 134AB(38)(e) of the Act
42 In undertaking the assessment required pursuant to the provisions of s.134AB(38)(e) of the Act, I am required to ignore the provisions of sub- paragraph (f) of that section, having regard to the plaintiff’s age as at the date of his injury. In these circumstances, the plaintiff must establish that:
• As at the date of the hearing, he has a loss of earning capacity of forty per cent or more; and • He will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of forty per cent or more. 43 In this respect, Counsel for each of the parties made reference to the Second Reading Speech as to the Accident Compensation (Common and Benefits) Bill, in which it was said, in respect to the analysis required by the Act, that the “the usual common law position prevails”.
44 Both parties approached the analysis required by s.134AB(38)(e) on the basis that, notwithstanding the fact that the plaintiff sustained his injury in excess of five years ago, I should take into account the income presently available to a registered plumber.
45 In this respect, the defendants contend that the appropriate figure is $1,250.28 per week, being the EBA rate, excluding any overtime or allowances as at 1 March 2010.
46 I note however:
• That the gross weekly earnings for a twenty-six year old air conditioning and mechanical services plumber are presently $1,419.00 per week; • That prior to his injury, the plaintiff, notwithstanding his training in the area of central heating and air conditioning, had chosen to work upon commercial construction sites because of the greater income available to him in that work; • That the plaintiff’s evidence that it had been his intention to maximise the income available to him as a plumber and that this had motivated his decision to work within the commercial construction industry, is not in dispute. 47 In these circumstances, I accept the submission put on behalf of the plaintiff that it is likely that, but for his injury, the plaintiff would be earning no less than the income available to an air conditioning and mechanical services plumber, namely, $1,419.00 per week. When this figure is converted to a gross weekly wage and reduced by 40 per cent, a gross figure of $851.40 is generated and I am satisfied that this figure should be employed as the plaintiff’s present gross income but for his injury pursuant to s.134AB(38)(e) of the Act.
48 In assessing whether the plaintiff has a loss of earning capacity of forty per cent or more and whether he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of forty per cent or more, I must fix a figure which appropriately represents the plaintiff’s current earning capacity in suitable employment.
49 Whilst the defendants point to the evidence of Mr Shannon that the plaintiff would be fit to undertake the duties required of a branch sales assistant within the plumbing industry, I find Mr Shannon’s assessment of the duties involved in that activity to be shallow and largely uninformed as it contains no analysis of the plaintiff’s capacity to undertake each of the duties involved in that work or of the plaintiff’s tolerance to standing or sitting. Having regard to the plaintiff’s evidence, which I accept, of his experience of the duties required in work of that type, which involved heavy lifting, when combined with the evidence of Ms Leitch, I am satisfied that the plaintiff does not possess that capacity.
50 The suggestion that the plaintiff might find a position as an area sales manager seems to me largely farcical, having regard to the plaintiff’s level of education, his experience in the workforce and his physical limitations. The fact that the plaintiff would not be regarded as a suitable candidate for employment as a showroom assistant,[8] having regard to his lack of experience in a sales environment or as a sales consultant in respect of exclusive bathroom products[9] given his absence of any experience in sales or customer service, reinforces my view in this regard.
[8] Defendants’ Court Book (“DCB”) 7
[9] DCB 11
51 Whilst in a document entitled ‘Summary of Loss of Earning Capacity’ (the summary) provided to me by the plaintiff with the consent of the defendants, the gross weekly wage available to a fast food cook; a gas fitter; a traffic controller; a truck driver; a sales assistant; an Almak driver, and security officer is set out, I am satisfied that the plaintiff does not, and will not, possess the capacity to work as a fast food cook; a gas fitter or a truck driver; having regard to his sitting, standing, bending and driving tolerances. I accept however, that the range of incomes which is available in the occupations listed in the summary, represents the range of income which the plaintiff might attract in work which he is physically and intellectually capable of after he has successfully completed any re-training available to him. Having regard to my finding that the plaintiff’s capacity to undertake suitable employment will be permanently limited to working for no more that 20 hours per week, by reason of the fact that employment in any of those occupations would generate an income which would be productive of a financial loss of 40 per cent or more for the plaintiff when compared with the income which I have found represents his current income earning capacity but for his injury, I am satisfied that the plaintiff has made out his entitlement to commence a proceeding claiming damages in respect of the loss of earning capacity suffered by him by reason of the injury suffered in the course of his employment with the first defendant.
52 Having made this finding, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for both the pain and suffering and economic loss consequences of the injuries suffered by him in the course of his employment with the first defendant.
53 I will hear the parties as to the precise form of the orders sought and upon the issue of costs
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