Martin v VWA
[2019] VCC 913
•25 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-05613
| ALAN MARTIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 June 2019 | |
DATE OF JUDGMENT: | 25 June 2019 | |
CASE MAY BE CITED AS: | MARTIN v VWA | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 913 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lower back – pain and suffering – pecuniary loss - whether consequences are “very considerable”
Legislation Cited: Accident Compensation Act1985 (Vic)
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; State of New South Wales v Moss [2000] NSWCA 133; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170;
Judgment: Application successful
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms J Frederico | Maurice Blackburn |
| For the Defendant | Mr E Makowski | Thomson Geer |
HER HONOUR:
Preliminary
1 In March 2014, when he was just 23 years of age, Mr Martin suffered an injury to his lower back, whilst moving a heavy mattress base during the course of his employment with the defendant.
2 Mr Martin claims to have suffered serious consequences as a result of this lower back injury, both in respect of his pain and suffering and his loss of earning capacity. In order for Mr Martin to be entitled to claim common law damages, the impairment to his spine must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act1985 (”the Act”).
3 The defendant accepted that Mr Martin suffered a lower back injury at work, but disputed the claim on the basis that the consequences to Mr Martin, both in respect to his pain and suffering and loss of earning capacity, did not constitute a serious injury for the purposes of the Act.
4 Mr Martin and his partner were both called to give evidence and were cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
5 For the reasons which follow, I am satisfied that Mr Martin should be granted leave to commence common law proceedings for both pain and suffering and pecuniary loss damages.
Mr Martin’s life before he suffered his back injury
6 Mr Martin is now 28 years of age, and lives with his partner. He attended Bentleigh Secondary College, but said that he failed year 10, before subsequently leaving school in year 11. Mr Martin said that he struggled at school and found it difficult to complete homework.
7 Soon after finishing school, Mr Martin obtained employment with Australia Post. He said that his job largely comprised sorting envelopes and packages, and sometimes registering items on a computer. Mr Martin said that this job was his first paid employment, and that he was simply happy to be earning money at that stage of his life. Mr Martin left this job after approximately two and a half years, in order to travel around Europe for several months.
8 Upon his return to Australia, Mr Martin’s Mum helped him obtain casual employment with the defendant, with whom she was also employed. The defendant company manufactured and sold orthopaedic mattresses. Mr Martin described his role as customer service, but said that he was essentially required to pick up mattresses and bed bases from a customer’s home, for the purpose of repairing them at the factory, before then returning them to the customer.
9 Mr Martin worked the equivalent of full-time hours in this employment, and sometimes up to 10 or 11 hours per day.
10 Mr Martin said that he had not intended to remain in that job on a permanent basis, he simply needed a job in which he could earn money when he returned from his trip overseas. Mr Martin said that his long-term plan had been to work as either a carpenter or a landscape gardener, as he liked doing things with his hands and being outdoors. Mr Martin explained that his job with the defendant was simply a means to an end, as it would allow him to save money in order to put a deposit on a house, before then undertaking a course in order to move into his chosen trade. Mr Martin said that he had discussed this dream with his partner, his mum and some of his friends, but conceded that he had not made any enquiries as to the course he would need to undertake in order to work as either a carpenter or a landscape gardener.
11 Mr Martin said that he has also suffered from psoriasis and eczema since he was a child, and that both those conditions are aggravated by dusty conditions. In cross-examination, Mr Martin conceded that he had never turned his mind to the potential difficulties he would encounter working as a carpenter in a dusty environment.
12 Prior to suffering his lower back injury, Mr Martin said that he experienced some left shoulder pain, whilst working for the defendant on 13 September 2014. Mr Martin said that he has continued to experience some restriction of movement in his left shoulder since that time, such that he is limited in his ability to use his left arm above shoulder height, and with other awkward movements.
13 In his leisure time, Mr Martin said that he previously enjoyed playing sports especially basketball, soccer, football, running and bike riding. Mr Martin said that, at the time he suffered his lower back injury, he played in a basketball competition in Oakleigh, on a Monday night.
Mr Martin’s lower back injury and its consequences
14 On 3 March 2014, whilst moving a bed base at a customer’s house, Mr Martin experienced pain in his lower back. Later that day, he attended general practitioner, Dr James Kennedy, at Medical One in Moorabbin. Dr Kennedy prescribed Panadeine forte medication and recommended that Mr Martin obtain physiotherapy treatment.
15 On 13 April 2014, Mr Martin attended general practitioner, Dr Andrew Mau, at Clayton Road Doctors Clinic in Clayton. Dr Mau provided Mr Martin with Certificates of Capacity, which stated: no repetitive bending or twisting, rest breaks as needed, and no lifting more than five kilograms.
16 On 13 September 2014, Dr Mau arranged for an MRI scan to be taken of Mr Martin’s lumbar spine. It was reported as disclosing no cause for his left leg radicular symptoms. Dr Mau considered there to be an abnormal appearance of the left L5/S1 facet joint, and thought this was related to a combination of a developmental anomaly and a mild degenerative change.
17 Further MRI scans were taken of Mr Martin’s lumbar spine on 23 February 2016 and 15 July 2016, both of which were reported as demonstrating a normal lumbar spine, with no neural compressive lesions.
18 In October 2016, Mr Martin transferred his care to general practitioner, Dr Simon Hillman, at the Eastbound Medical Clinic in East Bentleigh. At that time, Dr Hillman noted that Mr Martin complained of lower back pain radiating down his left buttock and leg. On examination, Mr Hillman noted mildly restricted back movements and lower left lumbar spine facet joint tenderness.
19 In July 2018, Mr Hillman referred Mr Martin to musculoskeletal physician, Dr Victor Wilk. Mr Martin said that Dr Wilk treated him with Dextrose injections into his lumber spine, which did not offer him any lasting relief. Thereafter, Dr Wilk also administered a caudal injection, and later a left L4/5 transforaminal epidural injection. Dr Wilk noted that Mr Martin obtained some improvement in his muscle cramping for about 10 days, following which his pain then returned. Mr Martin said that he has not sought further treatment from Dr Wilk, as he gained no lasting benefit from the injections.
20 In a report dated 5 March 2019, Dr Wilk was of the opinion that Mr Martin suffered a lower back strain on his left side, which involved some referred pain in the sacrum and left leg region, without evidence of radiculopathy. Dr Wilk was uncertain as to the underlying cause of Mr Martin’s pain, but thought that it might be associated with a minor disc bulge seen on his MRI scan at L4/5. Despite expressing some uncertainty as to the cause of the pain, Dr Wilk was of the opinion that Mr Martin’s injury was directly connected with his employment with the defendant in March 2014.
21 Dr Wilk was of the opinion that Mr Martin was only capable of very light, part-time duties, due to his inability to sit or stand for long periods, or perform any manual type work.
22 Mr Martin continues to consult Dr Hillman on a monthly basis. In his most recent report dated 24 May 2019, Dr Hillman was of the opinion that Mr Martin could return to suitable work duties, for 15 to 20 hours per week. Dr Hillman stated that any such duties should not permit lifting over five kilograms, or any repetitive bending or prolonged standing.
23 Mr Martin has also received physiotherapy treatment from Mr Jonathan Harris at the Nepean Physiotherapy Clinic in Hampton East. Mr Martin said that he attends Mr Harris when he can afford to pay for such treatment. Mr Martin said that Mr Harris has spoken with him in relation to the ways in which he can cope with his pain, and has provided him with exercises he can perform at home. Mr Martin said that he understands the importance of remaining active, and that he completes the stretching exercises three times a day at home, and tries to walk on a daily basis.
24 In a report dated 19 February 2019, Mr Harris was of the opinion that Mr Martin had no capacity for his pre-injury employment, but was capable of performing duties which required lifting of no more than five to ten kilograms, for no more than 20 hours per week. Mr Harris also stated that any such employment would need to accommodate Mr Martin’s need to sit, stand and move about as required.
25 Mr Martin continued in his employment with the defendant until June 2015, at which time he resigned on the basis that lifting the mattresses and the bed bases was further aggravating his back injury.
26 Soon after ceasing his employment with the defendant, Mr Martin attended an open day at Holmesglen TAFE. He said that he was interested in a Certificate III Course in Carpentry, Building and Construction. Mr Martin said that he spoke to one of the TAFE instructors about his injury, and was assured that his injury could be accommodated within the course.
27 Mr Martin said that he then commenced the course, but was only able to cope for two weeks. He said that the first week was an induction in Occupational Health & Safety, and that in the second week his teachers began to show the students practical aspects of the course, including cutting wood and chiselling.
28 Mr Martin could not recall the exact hours or days that he attended the course, but believed it was close to full-time hours. He said that he struggled in the initial week, as it involved prolonged periods of sitting, and that in the second week, within 30 minutes of commencing the hands-on tasks such as sawing and chiselling, he realised that the physical demands of the course were beyond him. At this point, Mr Martin said that he permanently dropped out of the course.
29 Mr Martin then decided to undertake a Certificate IV Course in Business Administration, at Swinburne University, in the hope of gaining some business skills that he could later apply to carpentry. Mr Martin said that this course went for approximately six months, and that at times he struggled with the prolonged periods of sitting in class, as well as the content of the course. Mr Martin said that he persisted with the course, however, and successfully obtained the Certificate.
30 In August 2017, Mr Martin obtained casual employment with Optus, as a sales representative in its Northland store. He worked in this position for approximately three to four months, with hours fluctuating between 5 and 15 hours per week. For the period 29 August 2017 until 16 October 2017, Mr Martin earned $2,066 gross, at a base rate of $21.01 per hour.
31 Mr Martin said that he had a 90 minute commute to and from work each day, and that this prolonged period of sitting in his car aggravated his lower back pain, which was then further aggravated by the prolonged periods of standing whilst at work. Given the distance he was required to travel each day, Mr Martin requested a transfer to the Optus store at Chadstone Shopping Centre which was refused. Mr Martin said that he ultimately left this employment, as he felt it was inconsistent with his lower back injury. He said that he also had some difficulties with his manager, whom he said had tried to intimidate him at times. He denied that he ceased his employment with Optus due to any difficulties with management. Since 2017, Mr Martin has undertaken voluntary work at a Red Cross store in Carnegie. He said that he has worked up to 15 hours per week in this store, but that he currently works just five hours per week. Mr Martin said that the work is very light, in that it involves steam ironing clothes, and placing price tags on items. Mr Martin said that he is fortunate to have a supportive manager, who offers him flexibility in having regular breaks, on an as-needed basis. Mr Martin said that this employment was consistent with his physical restrictions, but denied that he could do such work on a full-time basis.
32 Mr Martin said that he has applied for numerous jobs, both as a requirement of his Centrelink benefits, as well as his desire to obtain paid employment. These jobs are either part-time or casual positions. Mr Martin said that whilst he has had a few interviews, he has been unsuccessful in all of his job applications, save for the position he obtained with Optus.
33 Mr Martin continues to obtain Certificates of Capacity from Dr Hillman. His most recent certificate dated 10 April 2019, stated that Mr Martin suffered from lower back and left leg pain, and that he was capable of undertaking suitable employment for 15-20 hours per week.
34 Mr Martin said that he suffers constant lower back pain, which radiates into his left leg, down to his ankle. He also said that he experiences tingling and numbness in his left leg. Mr Martin said that sitting or standing for long periods of time causes him increased pain, and that he lies down for 30 to 40 minutes during the day, as this is the only way in which he can obtain some relief from his lower back pain.
35 Mr Martin said that he often takes Advil medication in the evening to help him sleep. Mr Martin conceded, however, that he is not sure how much the Advil actually helps, but that he takes it, simply in the hope that it will give him a good night’s sleep. Mr Martin said that he regularly wakes at 3:00 to 4:00 am, due to lower back pain, and that he has to get out of bed for a couple of minutes, to stretch his back. Mr Martin said that when he wakes in the morning, he does not feel refreshed.
36 Mr Martin said that he can perform light household duties, such as vacuuming and packing the dishwasher. He also said that he is able to go shopping and can carry the light groceries.
37 Mr Martin said that he no longer plays basketball, soccer or football. As a result, he said that he has lost contact with some of his friends and that at times, he feels very isolated.
38 Mr Martin said that his relationship with his partner has been adversely affected because of his back pain, and his uncertainty surrounding his future. Mr Martin said that while he still lives with his partner, they are not currently intimate with each other.
39 Mr Martin’s partner, Ms Johnson, gave evidence as to the impact Mr Martin’s lower back injury has had upon him. Ms Johnson confirmed that, prior to suffering his injury, Mr Martin had discussed his future plans to work as a builder with her. Ms Johnson also confirmed that Mr Martin’s sleep is interfered with, and that he performs only a limited number of household tasks. Ms Johnson said that their relationship had been affected, due to Mr Martin’s lower back injury.
Medico-legal evidence
40 Mr Martin’s solicitors arranged for him to be examined by consultant physician in rehabilitation medicine, Dr David Murphy. In his report dated 22 March 2019, Dr Murphy detailed Mr Martin's history and progress since suffering his injury in March 2014. Dr Murphy was of the opinion that Mr Martin had suffered a soft tissue injury to the lumbar spine, and that he had elements of piriformis syndrome and thoracolumbar junction syndrome. Dr Murphy considered the nature of the injury to be consistent with moving a mattress, and with Mr Martin’s persistent problems.
41 Dr Murphy was of the opinion that Mr Martin was unable to return to his pre-injury duties, but that he was capable of performing alternative employment, with the following restrictions:
- not to lift more than five kilograms or to lift, bend, twist, stoop or squat repetitively;
- not to sit, stand or walk for more than 30 minutes at a time;
- not to work in confined spaces, up ladders, or stairs, or be exposed to repetitive jolting of the lumbar spine.
42 In a supplementary report dated 29 May 2019, Dr Murphy was of the opinion that Mr Martin could commence at 15 hours per week in suitable employment, and that he could then progress his hours on a graduated basis. Dr Murphy was ultimately of the opinion, however, that given Mr Martin’s current physical situation, it would be difficult for him to work more than five hours per day, five days per week, or a total of 25 hours per week.
43 Mr Martin’s solicitors also arranged for him to be examined by neurosurgeon, Dr Ales Aliashkevich. In a report dated 18 March 2019, Dr Aliashkevich detailed Mr Martin’s background and the treatment he had received for his lower back injury, including the medical imaging. On examination, Dr Aliashkevich observed a diminished left ankle jerk and a restricted range of movement in Mr Martin’s lumbar spine, together with moderate tenderness in the lumbosacral region, without muscular guarding or trigger points.
44 Dr Aliashkevich diagnosed Mr Martin as suffering chronic and refractory lower back pain and left leg pain, together with chronic pain syndrome, central sensitisation and suspected left L5\S1 facet arthropathy.
45 Dr Aliashkevich was of the opinion that as a consequence of Mr Martin’s lower back injury, he should be restricted to the following activities: no lifting and carrying weights over five kilograms; no regular or vigorous pushing/pulling; no using heavy tools; no repetitive or sustained turning and twisting; no driving over 30 minutes; no stooping, bending, kneeling and crouching; no plumbing steps or ladders; no walking on uneven ground; no prolonged sitting, standing or walking over 30 minutes; no tolerating static postures for longer than 15 minutes; no exposure to vibrational jarring forces; and no repetitive or sustained bending to reach below the knees.
46 Dr Aliashkevich did not consider Mr Martin capable of returning to his pre-injury employment. He was of the opinion that Mr Martin was limited to performing suitable light work for no more than 20 hours per week. Notwithstanding this opinion, however, Dr Aliashkevich expressed concern as to whether or not Mr Martin would be able to maintain such modified employment in a reliable, consistent and productive manner.
47 Mr Martin also sought to rely upon a medico-legal report obtained by the defendant from Dr Graeme Doig, dated 22 March 2018. In his report, Dr Doig expressed his opinion that whilst Mr Martin had initially suffered an intervertebral disc protrusion at L4/5, which appeared to have subsequently resolved in follow-up imaging, he still suffered from chronic back pain and stiffness as a result. Dr Doig was of the opinion that Mr Martin’s prognosis was guarded and that he was restricted to lifting no more than 10 kilograms, with limited bending and twisting and the need for breaks from prolonged sitting, standing and driving.
48 The defendant arranged for Mr Martin to be examined by general surgeon, Mr Michael Troy. In his report dated 17 June 2016, Mr Troy diagnosed Mr Martin as suffering a persistent soft tissue strain to the left L5\S1 facet joint on the adjacent left sacroiliac joint. As at that time, Mr Troy was of the opinion that Mr Martin was not fit to perform his pre-injury duties and hours, but that he was fit to perform modified duties with some lifting restrictions.
49 The defendant then arranged for Mr Martin to be examined by occupational physician, Dr Majid Rahgozar. In his report dated 9 March 2017, Dr Rahgozar expressed his opinion that Mr Martin appeared to have suffered a muscular-ligamentous injury, which had subsequently resolved. Accordingly, Dr Rahgozar was of the opinion that Mr Martin was fit to perform his pre-injury duties and hours.
50 Most recently, the defendant arranged for Mr Martin to be examined by orthopaedic surgeon, Mr Michael Dooley. In his report dated 20 November 2018, Mr Dooley considered it possible that Mr Martin had sustained a small disc prolapse in the work incident, but did not consider the constancy and intensity of his ongoing pain and stability to be explainable on the basis of an organic injury. From an orthopaedic point of view, Mr Dooley accepted that Mr Martin suffered some ongoing intermittent lumbar spine pain, which he attributed to a soft tissue injury suffered in the work incident.
51 Mr Dooley was of the opinion that Mr Martin was unable to return to any work which involved regular heavy lifting, bending and manoeuvring. Instead, Mr Dooley was of the opinion that Mr Martin had the physical capacity to carry out light physical work and clerical duties, and noted that Mr Martin was working around 15 hours per week at that time. Mr Dooley considered it imperative to his overall well-being that Mr Martin return to suitable work on a full-time basis.
Mr Martin’s credibility and reliability
52 I considered Mr Martin to be an impressive witness, who gave evidence in a simple, straightforward and credible manner. He was matter of fact in relation to what he could and could not recall. On many occasions, when he was not certain about something, he simply answered as such. By way of example, when asked about which basketball team he was playing in at the time he was injured, Mr Martin said:
“I don't remember - again, I don't want to say something if I don't, like, completely remember it correctly. So the team, what it was called, all of that, I'm not 100 per cent sure.”
53 I did not consider such an answer to be evasive. I considered Mr Martin to be a co-operative witness, who was keen to ensure he gave honest and accurate evidence.
54 I consider Mr Martin has been motivated to retrain and obtain employment consistent with his lower back injury. When he considered the building course he enrolled in to be too physically demanding, he decided to undertake a business course, which he then successfully completed. Whilst I accept that his passion does not lie in retail sales, Mr Martin obtained employment with Optus and gave it a “red hot go”, in the hope that such work would be consistent with his lower back injury. Unfortunately for Mr Martin, he had difficulties in such employment, both due to the location of the shop and his standing tolerances.
55 I consider it commendable that Mr Martin is continuing to undertake volunteer work with the Red Cross, whilst he continues to apply for paid employment.
56 On the whole, I have no hesitation in accepting Mr Martin’s evidence in its entirety.
Mr Martin’s lower back injury
57 The defendant challenged this claim, in part, on the basis that Mr Martin does not suffer from a persisting organic lower back injury. The defendant submitted that any pain Mr Martin suffers is a psychological reaction, which cannot be considered in an application for a physical injury, under s134AB of the Act.
58 In the Court of Appeal decision of Meadows v Lichmore Pty Ltd[1], it was held that, once the court has accepted there is a substantial organic basis for the claimed impairment, the plaintiff does not need to disentangle the physical contributions from any psychological contributions.[2]
59 Over the five years since suffering his injury, Mr Martin has seen a number of medical practitioners, each of whom have offered a range of medical opinions as to the cause of his lower back pain.
60 At the outset, Dr Kennedy diagnosed musculoskeletal back pain, involving strain and muscle spasm.
61 Whilst Dr Chau provided Mr Martin with Certificates of Capacity in the period in which he treated him, he did not offer an opinion as to his impairment or clinical state.
62 His subsequent and current GP, Dr Hillman, diagnosed Mr Martin as suffering lumbar spine facet joint injury.
63 Dr Wilk considered Mr Martin to be suffering strain to one of the lower lumbar discs, associated with secondary muscle spasm in the sacral region. Although Dr Wilk queried the cause of the pain, he ultimately related the injury to Mr Martin’s employment with the defendant.
64 Dr Murphy diagnosed Mr Martin as suffering a soft tissue injury to the lumbar spine.
65 Dr Aliashkevich diagnosed chronic lower back pain with suspected left L5/S1 facet joint arthropathy.
66 Mr Troy diagnosed a persistent soft tissue strain to the left L5\S1 facet joint on the adjacent left sacroiliac joint.
67 Mr Dooley diagnosed either a small disc prolapse or a soft tissue injury.
68 Only Dr Rahgozar was of the opinion that Mr Martin had suffered a musculo-ligamentous injury, which had subsequently resolved. Dr Rahgozar offered no explanation as to the basis of his opinion or his reasoning as to when and how this injury resolved. I therefore gain little assistance from his opinion.
69 Having considered all of the evidence, I am satisfied that Mr Martin suffered a mechanical lower back injury during the course of his employment on 3 March 2014, and that his lower back pain has persisted since that time. I am also satisfied that there is a substantial organic basis to this back injury, such that it is appropriate to assess the consequences of Mr Martin’s lower back impairment, in his claim under subparagraph (a).
Mr Martin’s claim for loss of earning capacity as a consequence of his lower back impairment
70 To succeed in his claim for loss of earning capacity as a consequence of his lower back impairment, pursuant to ss134AB(38)(e)(i) of the Act, Mr Martin must establish that he has a loss of earning capacity at the date of the hearing of forty per cent or more. Further, he must establish, pursuant to ss38(e)(ii) of the Act, that 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.
71 As Mr Martin was under 26 years of age at the time he suffered his lower back injury, the assessment of his forty per cent loss is not to be referenced to his income from personal exertion in the three years before and three years after the injury (as it would be if he was over 26 years of age.[3]) Instead, the assessment is to be made by reference to common law principles. That is, the court may “have regard to the probable income from personal exertion which the worker would have earned but for the injury over the worker’s probable earning life.”[4]
72 As to the common law principles which should guide me in the assessment of Mr Martin’s loss of future earning capacity, both parties referred me to the New South Wales Court of Appeal decision in State of New South Wales v Moss.[5] That case involved the assessment of loss of earning capacity of a plaintiff injured in a science experiment at school, when she was fourteen years of age. Heydon JA (as he then was) identified the following principles:
(i) the plaintiff’s individual circumstances, such as background, intelligence, drive and personality may be relevant.[6]
(ii) evidence of past economic loss is some, though not conclusive evidence of reduced earning capacity;[7]
(iii) it is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what [the plaintiff] is likely to earn after the injury;[8]
(iv) the compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in the estimation of possibilities, not proof of probabilities;[9]
(v) the task of the [court] is to form a discretionary judgment by reference to not wholly determinate criteria within fairly wide parameters.[10]
73 In his closing submissions, Mr Mighell also submitted that ss134AB (38) (g) of the Act does not apply in circumstances where Mr Martin was under the age of 26 at the time he suffered his work injury. I note that in the circumstances of this case, where Mr Martin had made attempts at retraining, the defendant made no submissions to the contrary.
74 In the financial year 2013-14, Mr Martin received a gross annual income of approximately $45,572. This compromised a small component of WorkCover payments, for the period of time during which Mr Martin was initially off work due to his lower back injury. However, in circumstances where such weekly payments were paid at 95% or less of his pre-injury average weekly earnings, I am satisfied that this figure is a fair assessment of Mr Martin’s pre-injury earnings. This annual income equates to an average gross weekly wage of $876.
75 At common law, however, such earnings are not determinative of Mr Martin’s future earning capacity. I accept Mr Martin’s evidence that he took his job with the defendant, simply to earn some money after returning from overseas travel. I accept that he intended to save money for a deposit on a home, before moving to a trade.
76 I am satisfied that Mr Martin had difficulties at school, and that his future job prospects were likely to involve using his hands. He had demonstrated these manual skills is in his employment with Australia Post, and then later with the defendant. I accept that in the years after finishing school, whilst still young, Mr Martin had not firmly committed to the career he would ultimately pursue.
77 I accept Mr Martin’s evidence, that when he saved enough money, he intended to move into building, or possibly landscaping. I am satisfied that Mr Martin wanted to pursue a career which involved the use of his hands and in which he was outdoors.
78 Mr Martin said that he wanted to be a carpenter, however, in cross examination, he acknowledged that he had not turned his mind to the suitability of that trade, given his dust allergy and subsequent left shoulder injury.
79 Even if I am not satisfied that carpentry was likely to be a suitable trade for Mr Martin, in assessing his loss of earning capacity, I need not consider his potential earnings in just that one occupation.
80 Mr Martin’s efforts to undertake study after his injury, satisfies me that, if not for his lower back injury, he would ultimately have done some further study, to improve his skills and earning capacity.
81 In such an assessment, I am in part guided by the hourly rates of potential jobs Mr Martin would have been likely to undertake, if not for his lower back injury. Mr Martin relied upon the Flexipersonnel Report, commissioned by his solicitors, as to the following hourly rates:
§ Carpenter, base award rate at entry level of $ 22.04 per hour. However, on the open market, the average hourly rate is $41.19. Based on a 38 hour week, the gross weekly wage would be $1,565.
§ Landscape gardener, base award rate at entry level of $19.47 per hour. However, on the open market, the average hourly rate is $30.40. Based on a 38 hour week, the gross weekly wage would be $1,155.
82 I am satisfied that as a consequence of his lower back injury, Mr Martin is restricted in the work that he can undertake. Specifically, he cannot pursue work as either a carpenter or landscaper. I am satisfied that it is probable, if not for his injury, that Mr Martin had the capacity to earn in excess of $1,155 per week. Therefore, in order to be entitled to claim pecuniary loss damages, Mr Martin must satisfy me that he is incapable of earning more than $693 per week, on a permanent basis.
83 Mr Martin has demonstrated a capacity to work in retail sales, although I am satisfied that such capacity is limited by his sitting and standing tolerances, and the need for his job to be a reasonable distance from his home.
84 I also satisfied that Mr Martin can work a maximum of 20 hours per week in suitable employment. I have come to this conclusion, after having accepted Mr Martin’s evidence that he suffers constant lower back pain, which is aggravated by prolonged sitting and standing, and for which he needs to lie down during the day to ease his pain. I note that at both Optus and the Red Cross, Mr Martin has never worked more than 15 hours per week. Mr Martin had to resign his employment with Optus, due to increasing back pain, and is currently working only five hours per week at Red Cross. In order for Mr Martin to attend employment on a reliable and consistent basis, I consider it unrealistic for him to work more than 20 hours per week.
85 A restriction in working no more than 20 hours per week, is consistent with the medical opinions provided by Dr Hillman, Mr Harris and Dr Aliashkevich. Dr Murphy was somewhat optimistic that Mr Martin could work up to 25 hours per week, however, his opinion was subject to Mr Martin graduating his working hours from 15 hours per week. Given my acceptance of Mr Martin’s evidence that he struggled to cope with the hours he performed in the four months he worked at Optus, I do not consider it realistic for him to graduate his hours in the manner in which Dr Murphy proposed,
86 The defendant’s vocational assessor, Ms Nikki Burden of Recovre, suggested four jobs as being consistent with Mr Martin’s claimed restrictions. These included retail assistant, customer service (call centre worker), rental salesperson and general clerical worker. Given my finding that Mr Martin can work no more than 20 hours per week, the hourly rates, of any of these four occupations, are such that Mr Martin suffers the requisite 40 per cent loss in his earning capacity.
87 I am satisfied that this loss of earning capacity of forty per cent or more is permanent. Mr Martin suffered his injury five years ago, his symptoms have been relatively consistent throughout that period and there is no prospect of improvement.
88 Once a threshold of 40 per cent reduction in capacity has been met, it is still necessary for me to consider whether the consequences to Mr Martin meet the “very considerable test”.[11]
89 Given my acceptance that Mr Martin’s lower back injury restricts him to, at best, only part-time work, the pecuniary disadvantage to him is so great that I consider his loss of earning capacity can be described as very considerable.
90 As Mr Martin has satisfied me that he suffers a serious injury in respect of loss of earning capacity arising from his lower back injury, it is not necessary for me to consider separately his pain and suffering consequences.[12]
91 I am satisfied that Mr Martin suffers a serious injury to his lower back, and that the consequences are such that he should be granted leave to commence proceedings for pain and suffering and loss of earning capacity damages.
92 I will make the consequent orders.
[1][2013] VSCA 201
[2][2013] VSCA 201 at [21]
[3]Section 134AB (38)(f) Accident Compensation Act 1985 (Vic)
[4]Second Reading Speech on the Accident Compensation (Common and Benefits) Bill, in the Legislative Assembly on 13 April 2000, The Honourable R Cameron, Minister for WorkCover, at 1003
[5][2000] NSWCA 133
[6][2000] NSWCA 133 at [62]
[7][2000] NSWCA 133 at [64]
[8][2000] NSWCA 133 at [66]
[9][2000] NSWCA 133 at [71]
[10][2000] NSWCA 133 at [87]
[11]s134AB(8)(c) Accident Compensation Act 1985 (Vic)
[12]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
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