Matthews v GMR Mechanical Services Pty Ltd
[2017] VCC 1218
•4 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02468
| RYAN MATTHEWS | Plaintiff |
| v | |
| GMR MECHANICAL SERVICES PTY LTD | Defendant |
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JUDGE: | Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 & 7 June 2017 | |
DATE OF JUDGMENT: | 4 September 2017 | |
CASE MAY BE CITED AS: | Matthews v GMR Mechanical Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1218 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Application for leave to recover common law damages – compensable injury to non-dominant left upper limb, pain and suffering and permanent loss of earning capacity conceded - plaintiff under 26 years of age at the time of injury – whether when assessed in accordance with common law principles, the loss of earning capacity met the requirements of section 134AB(38)(e)(ii)
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited:State of New South Wales v Moss (2000) 54 NSWLR 536; Barwon Spinners Pty Ltd & Ors v Podolak & Ors [2005] VSCA 33
Judgment: Leave is granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.H. Mighell QC with Mr R. Ajzensztat | Maurice Blackburn |
| For the Defendant | Mr D. Masel SC with Mr M.K. Clarke | Minter Ellison |
HER HONOUR:
Introduction
1 In this proceeding, the plaintiff, Ryan Matthews, seeks leave pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act), to commence common law proceedings against his former employer, the defendant, GMR Mechanical Services, to recover damages for work-related injury to his left, non-dominant upper limb.
2 The plaintiff was the only witness called.
3 The documents tendered on behalf of the plaintiff comprise two affidavits sworn by the plaintiff on 16 December 2015 and 6 June 2017 respectively; affidavits sworn by his wife, Sharay Slivarich, by Nicholas Kane Bassett and by Paul Coffey, on 6 June 2017, 2 June 2017 and 5 June 2017 respectively; medical reports prepared by treating doctors, general practitioner Dr Rassias and orthopaedic surgeon and hand specialist, Mr Maloney; medical reports prepared by medico-legal specialists, Clinical Associate Prof of Surgery, Mr Behan, consultant in rehabilitation and pain medicine, Dr Clayton Thomas and occupational physician, Dr Horsley; a Vocational Report of Occupational Recruitment Consultant, Mr P Hartley, dated 15 May 2017; an Employment Assessment Report of Human Resources Consultant for Flexi Personnel, Katherine Rintoule, dated 9 May 2017; and a Summary of Taxation document for the financial years ending 30 June 2009 to 30 June 2016.[1]
[1]Exhibit P1, Plaintiff's Court Book (PCB).
4 The defendant tendered an affidavit of a Director of the defendant company, Mark Simmonds, sworn on 6 June 2017; reports of its medico-legal specialists, occupational physician, Dr Burke and specialist in hand surgery, Mr Ireland; and a Vocational Assessment and Labour Market Report and supplementary reports of Occupational Therapist for CoWork Pty Ltd (CoWork), Joanne Bryant, dated 29 December 2016, 25 May 2017 and 31 May 2017 respectively.[2]
[2]Exhibit D1, Defendant's Court Book (DCB).
Background to the application
5 The plaintiff was a refreshingly straightforward witness on his own behalf. He is 29 years of age and married with one child under the age of three.
6 The plaintiff commenced, but did not finish Year 12 at school. His employment activities between leaving school and commencing a four year mechanical plumber apprenticeship with the defendant in about 2008, comprised non-skilled work, such as tree lopping for about two years and work in a plaster factory for about a year.
7 During his apprenticeship, the plaintiff worked full-time, performing most of his work; that is, the installation of heating, cooling and ventilation systems, at large commercial construction sites, mainly nursing homes.
8 On 13 September 2012, whilst engaged in installing ducted air-conditioning in the roof of a nursing home at Phillip Island, the plaintiff fell from a ladder, fracturing his left wrist (the accident). As it turned out, the accident occurred on the last day of the plaintiff’s apprenticeship, after the defendant had confirmed completion of the plaintiff’s apprenticeship, thereby confirming the plaintiff’s eligibility for registration as a plumber. In the plaintiff’s case this meant that pre-accident his earning capacity as a plumber was unrestricted and the plaintiff was free to pursue his ambition to work as a mechanical plumber.
9 The plaintiff’s claim for WorkCover was accepted.
10 An attempt to return to light duties within six weeks of the accident failed. The plaintiff was referred to orthopaedic surgeon and hand specialist, Mr Maloney, after it became apparent that his condition remained symptomatic, despite conservative treatment.
11 MRI investigation in November 2012 revealed fracture of the hamate and triquetrum bones with fluid collection in the distal radioulnar joint (DRUJ). There followed surgical procedures, on 21 December 2012 and on 27 March 2013.
12 Following the second surgery the plaintiff and his then fiancee, now wife, moved to North Queensland. Whilst living in Queensland, and despite ongoing pain, the plaintiff sought, but was unable to find work that accommodated the restrictions imposed by his condition. After returning to Victoria, on 11 March 2014 the plaintiff also underwent cortisone injection into the left wrist.
13 A report dated 1 May 2017 records the treating surgeon’s diagnosis as follows:[3]
…, this gentleman presented with a case of DRUJ instability as a result of foveal detachment of the TFCC. It was complicated by post-operative granuloma formation of the surgical wound, and this required an exploration and debridement of the ECU tendon which also revealed underlying instability. He also had a co-existent problem of a midcarpal clunk which was related to muscle imbalance and weakness not, related to an intrinsic ligamentous deficiency of the wrist.
[3]Exhibit P1, PCB 35.
14 In Mr Maloney’s opinion the injury so diagnosed permanently restricts the plaintiff’s capacity “to undertake any heavy physical activity particularly at height and requiring significant weight bearing through his arms”.[4] The medical evidence taken as a whole supports a finding that the plaintiff is permanently incapacitated in the manner so described. More particularly, treating and medico-legal specialists have accepted that, by reason of the injury, the plaintiff is permanently unfit to return to his pre-injury employment or to work as a mechanical plumber in the future.
[4]PCB 35.
15 Whilst not undergoing active treatment of his condition, as the plaintiff explains in his further affidavit, the wrist condition is a daily source of pain and disability:[5]
[5]PCB 11A-B.
3. Since swearing my previous affidavit, I have continued to suffer from the pain, disabilities and restrictions set out in that affidavit.
4. I continue to do the exercises at home for my wrist and hand that I was taught by the hand therapist. I try to avoid taking pain medication. I use a cream for the swelling and pain. It is called Treadmill. I keep it in my desk at work. I apply it up to three times a day, depending on how painful or swollen my wrist becomes. I don’t see the doctor about my wrist and hand problems because I believe there is not much that can be done to improve my condition.
5. I continue to experience ongoing pain in my left wrist. I feel it across the top of my wrist and down the outside of my hand and the side of the wrist. I get swelling above the scar line. My wrist often clicks when I twist it from side-to-side. My left hand is now much weaker than it was before the injury.
6. My wrist pain is made worse by many basic activities. Lifting heavy items with my left hand aggravates the pain as does twisting my left wrist. Turning taps on or off with my left hand can be painful. If I place weight on my left wrist, my pain increases.
7. Towards the end of a day, my pain gets worse. In fact generally I think over the last couple of years my pain is getting worse.
16 To his credit, this well-motivated plaintiff has, with the assistance of “a mate”, found alternative employment in an administration/sales role with a supportive employer.
17 In August 2014, the plaintiff commenced work with C & S Lightweight. To start with his duties required that the plaintiff be licensed to drive a forklift to pick orders off the shelf. The hours worked, between 7am and 4pm five days per week, have never varied, although the plaintiff said he now spends less time on picking orders and forklift work and more time in office work.
18 C & S Lightweight both installs and distributes (the latter mainly to builders) ‘Hebel’, a concrete panel cladding system.
19 In the second of his two affidavits, the plaintiff describes his duties and the impact of these duties on his condition, and summarises his understanding of his capacity to engage in and sustain employment, other than the employment held by him since 2014:[6]
[6]PCB 11E-F and 11G.
19. … I work as the “office manager” however really my job is a mixture of different tasks including some phone work, some sales work, some invoicing and organising some deliveries. I work full-time. My job is mostly in the office. Some of the work is computer-based but the computer work is broken up by other tasks. This means I don’t have to type for extended periods. Despite this my wrist pain seems to worsen throughout the working day. Activities such as pulling folders on and off shelves aggravate the pain. Sometimes I have to do some lifting in the factory. This aggravates the wrist pain. By the end of each day my wrist is very painful. I haven’t take (sic) time off work because of the pain, even though sometimes I feel that I would like to. I am very reluctant to take time off for pain because my current boss has tried to look after me by giving me the job. I’m trying to cope with the pain at work as best I can.
And
23. I don’t believe I have the capacity to do a job that involves extended periods of computer-based work. Having to type without regular rests or tasks to break up the typing would significantly aggravate the wrist pain. I do not believe I could cope with that. If I didn’t have my current job, I do not know what sort of work I would be able to do. I have limited education. I never finished year 12. Other than my plumbing apprenticeship I have no qualifications for other work. I never finished the apprenticeship as an arborist. I have limited transferable skills. Many jobs require qualifications or experience that I do not have.
20 Under cross-examination, the plaintiff further explained the type of work currently performed by him:[7]
… So I’m in the reception area, so I (handle) all the walk-ins off the street that are looking at the products, I do all the ordering. I organise the deliveries for the - for the truck, I do some invoicing, some sales. I – I handle all the inquiries on the emails, all the phone calls I direct them to where they need to be directed to, the appropriate people.
[7]Transcript (TN) 16.
21 Based on the responses given by the plaintiff during the course of his oral evidence, it was also apparent that the plaintiff:
Ø had acquired some on-the-job understanding of the product installed and distributed by his employer, such that he had some capacity to respond to enquiries about the product’s technical properties.[8] Indeed, the plaintiff agreed that, with a view to developing his career, he was “always going back to the guys in the office” to find out more about the product.[9]
[8]TN 16-17.
[9]TN 21.
Ø Hoped to progress in due course from his current office management role to a sales role, the latter involving on-site teaching of builders about the product, with a view to increasing the distribution and use of the Hebel product.
Ø Based on the experience of a friend, who was in the job for six years before being promoted to a position as a sales representative, the plaintiff believes there is an opportunity for him to progress, but sees this as being “a long way off, it could be four years”.[10] Sales Representatives working for the plaintiff’s current employer take home $950 per week.[11]
[10]TN 18 and 22- 23.
[11]TN 23.
Ø With a view to improving his employment chances, the plaintiff has in the last year made enquiries about undertaking, for example, a business studies course. He has, however, delayed further consideration of this or attempting further studies whilst raising a young child.[12] As I understood the evidence given, the plaintiff has, nonetheless, already discussed this course with his employer, who has indicated that he would assist with the cost to the plaintiff of undertaking this course.[13]
Ø The plaintiff has not also considered alternatives to a career in sales with his current employer in the future, more specifically employment identified as suitable in the first of the CoWork reports dated 29 December 2016. Of the occupations so identified, at hearing the defendant relied on only three: employment as a Sales Representative, as a Maintenance Scheduler/Coordinator; or as a Recruitment Consultant.
[12]TN 19-20.
[13]TN 22.
22 In addition to pain management issues, medico-legal experts from both sides, Mr Ireland for the defendant and Dr Clayton Thomas and Dr Horsley for the plaintiff, each envisage permanent restrictions limiting the plaintiff’s vocational options in alternative employment, expressed as follows:
Ø On lifting up to 15 kg and on activities requiring sustained gripping with the left hand or prolonged use of the wrist in extreme positions of extension or flexion or forearm rotation.[14]
[14]Mr Ireland, DCB 30.
Ø On lifting with the left hand up to 5 kg and on the use of the hand repetitively.[15]
Ø On lifting up to 10 to 12 kg on an occasional basis or repetitive basis; on forceful activities involving the left hand and on repetitive pronation and supination and dorsiflexion and palmar flexion; and on operating machinery with a vibratory component.[16]
[15]Dr Clayton Thomas, PCB 91.
[16]Dr Horsley, PCB 102.
23 In my view, the plaintiff’s own account of his tolerances when interviewed in May 2017 by Mr Hartley is probably the best indicator of the extent of the restrictions he faces in a workplace environment, especially on lifting and keyboard activities:[17]
[17]PCB 108.
Mr Matthews advised that due to pain and weakness in his left wrist he is limited in a number of activities such as:
· Lifting – about 5 kg with his left hand but not repetitively. No limitation with right dominant hand but bilateral lifting or carrying is also reduced due to the left wrist weakness
· Pulling and pushing – avoids with left hand if possible
· Climbing such as ladders – he can manage occasionally but must use his left hand “the wrong way”
· Crawling and crouching – avoids when possible
· Holding hands up at a computer workstation – he can but must primarily use his right dominant hand
· Grip – he has diminished grip strength in his left hand and described numbness around the wrist area of the left hand
24 Relevantly, Dr Thomas and Dr Horsley also identified the risk over the longer term of the development of osteoarthritis, which both doctors predict will worsen and lead to greater disability with the passage of time.[18] Accordingly, there remains the possibility that the plaintiff’s earning capacity will be further restricted in the future due to the impact of osteoarthritis on the level of pain experienced and on the function of the left upper limb.
[18]PCB 92 and 102 respectively.
25 Each expert mentioned above also comments on the employment options recommended in the first CoWork report. Notably, in this report the Sales Representative job information provided was for a “Sales Representative (Industrial Products) position, coded as “2254-11”, at “Skills Level 1”.[19] The significance of the last mentioned job description will become apparent in due course. However, at this juncture it is appropriate to note that, without more, both Mr Ireland and Dr Thomas believe that the plaintiff is capable of working in the Sales Representative and Maintenance Coordinator positions but not in a position as a Mechanical Plumber. Whilst, Mr Ireland also considered the Recruitment Consultant position unsuitable, he did so on the basis that the plaintiff lacked the training and background to perform the administrative tasks required in this position.
[19]DCB 48.
26 By way of contrast, Dr Horsley, a specialist in occupational medicine, addresses each position without giving unqualified support for the proposition that any of the positions described represent viable alternative employment/career options in the future:[20]
[20]PCB 101-102.
Ø Dr Horsley makes two relevant observations vis-a-vis the Sales Representative position. Firstly, that the plaintiff had “transferred to an office manager role and hopes to move into a sales role in due course” and that this would be with his “current company”; and, secondly, that the plaintiff was aware that his disability “has had a significant impact upon vocational options into the longer term”. In short, Dr Horsley does not rule out the possibility that the plaintiff would, as he hoped to do, progress to a sales role with his current employer, without going so far as to endorse the Sales Representative – Industrial Products position described in CoWork’s first report as a position within the plaintiff’s capacity.
Ø Dr Horsley appears to accept the concern expressed by the plaintiff to the effect that an office based option as a Recruitment Consultant is not appropriate due to the likely prolonged keyboard action required in using a computer and in entering data, which the plaintiff says aggravates left wrist pain. Based on both Dr Horsley’s expertise as an occupational physician and the plaintiff’s evidence of his capacity to perform the duties required of a Recruitment Consultant, I approached the application on the basis that, even with retraining, this position probably isn’t a viable option for this plaintiff in the future.
Ø Dr Horsley gave qualified support to a position as a Maintenance Schedule/Coordinator by indicating that it “may be within” the plaintiff’s capacity, adding that he would require retraining and need to upgrade his skills with a Certificate III or Certificate IV in Scheduling. As my discussion of Mr Hartley’s report shows in due course, there are other sound reasons for rejecting employment as a Maintenance Scheduler as a viable option for this plaintiff in the future.
27 When injured, the plaintiff was earning around $1248 gross per week. In his current role, the plaintiff is paid “around” $950 gross per week; that is to say, around $49,400 gross per annum, working 40 plus hours per week.
28 The plaintiff believes that, but for the injury, he would now be earning much more as a qualified plumber. The plaintiff’s uncontested evidence was to the effect that, before sustaining the injury, he had enjoyed plumbing work and, but for the injury, his employment options included: continuing employment as a plumber with the defendant, in the expectation that his earnings would increase on registration as a plumber and each year thereafter, as he gained more experience; pursuing a career as a self-employed mechanical plumber, in the expectation of even higher earnings; or pursuing work in the commercial construction area as a commercial plumber. I infer from the hours currently worked that, but for injury, the higher earnings to which this well motivated plaintiff refers would likely have included overtime.
29 The plaintiff’s evidence that working in the commercial construction sector under an Enterprise Bargaining Agreement attracts higher rates of pay, finds support in the affidavit sworn by an Industrial Officer employed by the Plumbing and Pipes Trade Employees Union, Paul Coffey, to which a copy of the CEPU – Plumbing Division (Vic) Enterprise Agreement 2016-2017 was annexed (the EBA).[21] In summary, Mr Coffey’s evidence establishes the following matters:
[21]PCB 11L-V.
Ø the EBA is a standard Enterprise Agreement that applies to plumbers including mechanical plumbers working onsite or in construction work in the Victoria.
Ø A plumber, including a mechanical plumber, working a 36 hour week under the EBA in the period 1 March 2017 to 28 February 2018, is paid $2006.41 (not including overtime), with overtime payable at the rate of $92.42 per hour (double time) or $115.53 (double time and a half).
Ø Plumbers’ rates of pay for the same hours will increase under the EBA from 1 March 2018 to 28 February 2019 and from 1 March 2019 to $2082.31 and $2177.31 respectively. Overtime will likewise increase but will be payable in each period at the same rate, that is $95.92 per hour (double time) or $119.90 (double time and a half).
Ø Most construction sites operate on a six-day week, the expectation being that a plumber will work an eight hour day on a Saturday and be paid overtime for the hours worked at the double time rate, whereas the rate for double time and a half is generally paid on public holidays.
Ø It is not uncommon for a plumber working overtime under the EBA to earn between $1800 and $2000 net per week or between about $2560 and $2890 gross per week. In short, earnings of between approximately $133,000 and approximately $150,000 gross per annum are not uncommon.
Ø Based on wage increases obtained under three EBAs over the past 12 years, the expectation is that the wage of a plumber, including a mechanical plumber, will rise between 2% and 4% each year over the course of the next EBA.
30 The plaintiff’s evidence that employment in the private sector as a mechanical plumber is better remunerated than his current sales/administrative position finds support in two further affidavits.
31 The first of these, the affidavit sworn by Nicholas Kane Bassett, the owner of Bayside Comfort Solutions, a heating, cooling and refrigeration business in operation for about eight years, provides evidence of the rates currently paid to either mechanical plumbers engaged by the business as subcontractors, or to mechanical plumbers employed by the business.
32 Mr Bassett, who worked as a qualified refrigeration mechanic prior to commencing the business, relevantly deposes to the following matters:[22]
[22]PCB 11J-K.
Ø Subcontractors engaged by his business are paid about $48 per hour, although some are paid at a higher rate. A mechanical plumber engaged as a subcontractor would earn at least $2000 (presumably gross) per week. I infer from this evidence that, as plumbers employed under the EBA on constructions sites do, Mr Bassett’s subcontractors likely work more than 36 hours per week.
Ø Mechanical plumbers employed directly by Mr Bassett’s business are paid wages at an hourly rate of $35 per hour. Based on a 36 hour week these plumbers would earn $1260 gross per week. However, according to Mr Bassett these employees’ gross earnings vary “a lot” depending on “things like overtime”. I infer from this evidence that mechanical plumbers employed by the business, nonetheless, have the opportunity to work overtime.
Ø Mr Bassett was aware from his own experience that plumbers on construction sites work under an EBA, and further that “many mechanical plumbers chose to work under” an EBA because it allows them to earn “a lot of money” and to earn in excess of $100,000 (presumably gross) per annum.
33 The other affidavit, was sworn by the defendant’s Director, Mark Simmonds, at the request of the defendant’s solicitors. Mr Simmonds relevantly deposes to the following matters:[23]
[23]DCB 1-5.
Ø The defendant currently employs a workforce of approximately 16 workers, 12 of whom are plumbers.
Ø Having been asked to provide salary details for his two highest earning plumbers, Mr Simmonds produced payroll activity sheets for the period 1 June 2016 to 31 May 2017. At hearing, the defendant submitted that the wage information disclosed for the highest earning plumber; namely $106,132.46 gross after deduction of $17,450.10 for superannuation and redundancy contributions (the latter amount, it was submitted, was not an amount paid to the employee), represents an appropriate comparator in this case.[24] If correct, the gross weekly rate of pay for the period recorded, was $2041. The plaintiff submitted, without explaining why, that proceeding on the assumption that the redundancy payment is not paid unless and until the employee is made redundant, is incorrect. Therefore, the gross figure is $113,499 per annum or $2182 gross per week. I could not, however, determine from the material before the Court whether or not the redundancy sum is isolated from payment in the manner the defendant claims it is. That said, on either approach, the highest earning mechanical plumber employed by the defendant likely earns more than $2000 gross per week.
Ø Having read an un-sworn copy of Mr Coffey’s affidavit, based on Mr Simmonds’ own experience, “plumbing employers” in the construction industry, who operate under the EBA tend to work on large construction sites and, such work is, in Mr Simmonds’ words: “less consistent than work with a plumbing company such as mine which engages in mechanical services plumbing. The larger mechanical services companies working on Union sites hire and fire based on the work that is available at the time”. Mr Simmonds cites an example of an employee who left the defendant’s company to work on a Union site but was laid off with thirty other plumbers when the job was completed nine months later. According to Mr Simmonds, this former employee remained out of work for three months whilst looking for further work on a site operating under an EBA.
[24]TN 63.
34 Further to the example given above, it is apparent from the provisions of the EBA, as they relate to the types of employment available under the EBA (employees excepting apprentices will be employed either as full-time employees on daily hire or as casual employees) and the basis upon which full-time employees on daily hire may be terminated (on one days’ notice given by either party), that plumbers employed under the EBA may have their employment terminated at short notice.[25]
[25]PCB 11R(i).
35 That said, the evidence adduced by the defendant did not satisfy me that the length of the period of notice or that job security per se, are relevant considerations for the purpose of determining this leave application. Firstly, whilst there may be instances such as that recalled by Mr Simmonds, the former employee’s decision to continue to seek plumbing work on a construction site suggests an ongoing preference for this self-evidently more lucrative working arrangement. Secondly, the anecdotal evidence of Mr Simmonds, such as it was, did not satisfy me that the prospect that employment under the EBA may end when a project is complete, is necessarily a greater concern for a plumber employed under the EBA than for, say, a mechanical plumber engaged as a subcontractor until completion of a specific project/job.
The application for leave
36 Leave was sought under paragraph (a) of the definition of “serious injury” to recover damages for both pain and suffering and pecuniary loss.
37 At hearing, the defendant conceded compensable injury and that the pain and suffering consequence to the plaintiff of the injury was, when judged by comparison with other cases in the range of possible impairments or losses of body function, permanent and fairly described as being more than significant or marked and at least very considerable.
38 The issue for determination was whether, on the evidence, the plaintiff, who was under 26 years of age when he sustained the injury, has suffered a permanent loss of earning capacity of 40% or more when assessed in accordance with common law principles.
39 Section 134AB(38) relevantly provides as follows:
……
(a) The following definitions apply -
……
income from personal exertion has the same meaning as in section 6(2) of the Transport Accident Act 1986;
....
(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder as the case may be, with respect to –
i. pain and suffering; or
ii. loss of earning capacity –
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequences or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
(d) …
(e) Where a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (37), … a court shall not grant leave under subsection (16)(b) on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that –
i. … at the date of the hearing of an application under subsection (16)(b), the worker has a loss of earning capacity of 40 per centum or more, measured (except in the case of a worker referred to in item 1 of Schedule 1A or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f))
and
ii. the worker (including a worker referred to in item 1 of Schedule 1A or a worker under the age of 26 years at the date of the injury) will after the date of the decision or of the hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per centum or more;
(f) for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing –
i. the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is –
A. earning, whether in suitable employment or not; or
B. capable of earning in suitable employment –
as at that date, whichever is the greater, and
ii. 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;
(g) a worker does not establish the loss of earning capacity required by paragraph (b) where the worker has, or would have after rehabilitation or retraining, and taking into account the worker’s capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker’s attempts to participate in rehabilitation or retraining, a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per centum of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred.
….
40 It was common ground that:
Ø By reason of his age at the date of injury, neither the formula contained in paragraph (f), nor the additional threshold requirement imposed under paragraph (g) of the provision applied to the plaintiff. Essentially, the provision requires that the plaintiff demonstrate a permanent loss of earning capacity of 40% or more that after the date of the hearing, will continue to be productive of financial loss of 40% or more.
Ø When enacting section 134AB(38)(e) of the Act, Parliament contemplated that the Court would have regard to the usual common law position to determine whether a worker, under the age of 26 at the date of injury, had established a loss of earning capacity to the requisite level.
Ø The Court may have regard to the probable income from personal exertion, which the plaintiff would have earned but for the injury over his probable working life without being constrained by any notion of “suitable employment” as defined by section 5 of the Act. The Court can, for example, take into account whether particular employment to which the plaintiff might be suited in the future is available.
Ø The Court must assess all the evidence to determine the scenario that most fairly reflects the worker’s earning capacity.
41 The parties acknowledged the broad utility to the task of determining loss of earning capacity, of the various principles identified by His Honour, Heydon, JA in State of New South Wales v Moss and summarised as follows: [26]
[26](2000) 54 NSWLR 536, as expressed in paragraphs [64], [66], [69], [71], [72] and [87] respectively.
i. Evidence of past economic loss is some, though not conclusive evidence of reduced earning capacity.
ii. It is generally desirable to have precise evidence of what a plaintiff would have been likely to earn before the injury and what he is likely to earn after it.
iii. Where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work the plaintiff can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgment and assessment on a percentage basis or otherwise of the value of the lost capacity.
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 is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities not proof of probabilities.
v. The mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum.
vi. The task of a court is to form a discretionary judgment by reference to not wholly determinative criteria within fairly wide parameters.
42 In this case, the defendant submits that:
Ø The evidence of past economic loss is not conclusive evidence of continuing permanent loss of earning capacity, which will be productive of financial loss of 40% or more.[27]
[27]Principle i.
Ø Both sides have adduced evidence of likely gross earnings before and after injury, which must be assessed. [28]
[28]Principle ii.
Ø Whilst there is evidence of a significantly disabling injury that precludes a return to employment working as a plumber or mechanical plumber, the injury does not disable the plaintiff from achieving his goal of progressing from his administrative role to working as a Sales Representative or from working in alternative occupations, as for example, in Maintenance Scheduling or Recruitment Consultancy.[29]
[29]Principle iii.
Ø Whilst the task of calculating the damage to the plaintiff’s capacity to carry on various careers involves an estimation of possibilities not proof of probabilities, in this leave application the plaintiff must satisfy the Court that permanent loss of earning capacity will be productive of financial loss of 40% or more.[30]
Ø Self-evidently, this is not a damages case.[31] The plaintiff must, nonetheless, establish a loss of earning capacity to the level required by the Act and, on the evidence, the plaintiff has not done so.
[30]Principle iv.
[31]Principle v and vi.
43 More specifically, the defendant submits that once freed of the requirements imposed by sections 134AB(38)(f) and (g), and by applying the correct approach to calculating this, on the evidence, the plaintiff has not established loss of earning capacity to the requisite level. I will explain the approach advocated by the defendant in due course.
44 It is submitted on behalf of the plaintiff, that the Court should find that the work currently performed by the plaintiff probably reflects his future loss of earning capacity and, on the evidence, the plaintiff has met the requirements of the Act.
Evidence of loss of earning capacity
45 It is appropriate to make two observations at the outset. Firstly, when considering the occupations in which the plaintiff might exercise his restricted earning capacity in the future, each consultant, whose evidence is contained in the reports summarised below, applied the definition of “suitable employment” contained in section 5 of the Act. The latter defines employment and work for which a worker is currently suited (whether or not the work is available) by reference to specific criteria.
46 Secondly, the consultants did not have access to current medical reports tendered at hearing. For instance, both Ms Bryant and Mr Hartley appear to have considered a range of historical reports, including reports obtained by the defendant from medico-legal expert, occupational physician, Mr Burke. Whilst one report dated 19 July 2013 was tendered on the basis that the defendant’s counsel intended to refer to one paragraph of the report during final submissions, this never eventuated. More importantly, Ms Bryant also relies on a later report of Mr Burke dated 19 November 2013. The latter apparently contemplated that the plaintiff might decide to return to his pre-injury trade as a mechanical plumber in the future. Current medical evidence does not, however, justify Ms Bryant’s addition of “Mechanical Plumber” to her list of suitable alternative employment options in December 2016.
The Vocational and Labour Market Evidence
47 These comprise the CoWork reports authored by Ms Bryant and tendered by the defendant, and the report of Mr Hartley tendered on behalf of the plaintiff.
48 I was not satisfied that, in this case, less weight should be afforded Mr Hartley’s evidence, despite the efforts of the defendant’s counsel to establish an unfavourable comparison between Mr Hartley’s earlier work as a qualified social worker and Ms Bryant’s training and expertise in occupational therapy. Moreover, I could not be satisfied from reading their reports that Ms Bryant’s expertise in occupational therapy somehow explains the divergence of opinion between these consultants.
49 The short point to be made at this juncture is, that by reason of long-standing experience, in Mr Hartley’s case, among other things, 18 years working in the occupational rehabilitation industry, and in Ms Bryant’s case, among other things, 14 years practice in occupational rehabilitation, I considered both witnesses qualified to express opinions about vocational options for the plaintiff and to proffer and analyse, as they each did, Labour Market information.
50 In any event, as it turned out, the defendant sought to rely on wages information produced by Mr Hartley. Ultimately, and importantly for the purpose of the approach advocated by the defendant to determining whether the plaintiff has established a permanent loss of earning capacity productive of a financial loss of 40 % or more, as my discussion of their reports below show, these witnesses disagree on which classification of a Sales Representative and whether employment as a Maintenance Scheduler/Coordinator represent, as the witnesses then understood their task, “suitable employment” under the Act.
51 Ms Bryant says that a Sales Representative – Industrial Products, coded/classified as 225411 and employment as a Maintenance Scheduler/Coordinator do. Mr Hartley disagrees. Without accepting that any of the positions identified by Ms Bryant represent suitable employment Mr Hartley, nonetheless, explains that, as between the two positions, the less well remunerated Sales Representative – Building and Plumbing Supplies position, coded as 611311, is more in keeping with the plaintiff’s work and skills profile.
52 I have already mentioned in passing the report submitted by Ms Bryant in December 2016. This report contains Ms Bryant’s assessment of the plaintiff’s vocational options and her recommendations for alternative employment; whereas her much shorter reports, submitted in May 2017, either respond to Mr Hartley’s comments on occupations so recommended or provide additional information about income a Sales Representative could expect to earn in the current labour market.
53 The plaintiff has identified a long-term vocational path in sales, a path along which he hopes to progress further with his current employer. The plaintiff, nonetheless, understands that to do so will require him to undertake further education/training. It perhaps goes without saying at this juncture that, a vocational interest is only one factor in determining the extent of the plaintiff’s loss of earning capacity.
54 Both vocational assessors discuss courses and any further training required for this well-motivated plaintiff to progress to a Sales Representative role or to an alternative career.
55 Based on the evidence and submissions made, I was satisfied that Mr Hartley’s assessment of the plaintiff’s vocational opportunities is to be preferred. In my view, Mr Hartley’s assessment of factors the plaintiff’s counsel aptly described as the positive and negative vicissitudes faced by this plaintiff in the foreseeable future, represents a more balanced assessment of these opportunities. My reasons for so finding are summarised in the paragraphs that follow.
56 Firstly, the discussion of the plaintiff’s transferable skills in Ms Bryant’s first report is somewhat limited and appears to treat as transferable skills, for example, the plaintiff’s pre-accident skills in plumbing.
57 By way of contrast, Mr Hartley’s report contains an in-depth audit (with commentary) of the plaintiff’s skills under separate headings for skills and training, soft skills, vocational skills and transferable skills. Moreover, whilst Mr Hartley’s understanding of the plaintiff’s capacity best accords with the current medical assessment of this, more specifically, Dr Horsley’s assessment, as mentioned, Ms Bryant, no doubt influenced by the earlier medical evidence of Mr Burke, treats the plaintiff’s pre-accident skills in plumbing as transferable skills and proceeds on an incorrect assumption; that is to say that the plaintiff may yet decide to return to his pre-accident work as a plumber.
58 Secondly, both consultants discuss the possibility of the plaintiff working as a Sales Representative and the suitability of employment as a Maintenance Schedule/Coordinator in the future. As my discussion of their reports below shows, based on my understanding of the evidence as a whole, I was satisfied that Mr Hartley’s view that the less well-remunerated position of Sales Representative – building and plumbing supplies is more in keeping with the plaintiff’s work and skills profile; his rejection of the position of Maintenance Schedule/Coordinator as an appropriate option for this plaintiff; and the reservations he expressed about the plaintiff’s employment future with another employer, are justified.
Sales Representative opportunity
59 To start with, allowing for the plaintiff’s vocational interest in developing a sales role, as mentioned, in her first report Ms Bryant recommends a full-time position in technical sales: Sales Representative – Industrial Products, 2254-11, Skills Level 1.
60 Based on Ms Bryant’s report and the table produced by Mr Hartley, from August 2015 this position paid an average gross weekly sum of $1345 to workers in the 25 to 29-year-old age bracket; or $1527 to workers in the next age bracket, 30 to 34-year-olds. The position, so Ms Bryant reports, would require the plaintiff to obtain a Certificate III or IV in Business Management.
61 As Mr Hartley correctly notes, the plaintiff “hopes” to undertake further study to enhance his employability and retention with C & S Lightweight, a distributor of Hebel products and “has mooted working as a sales representative once he gains sound product knowledge and further skills”.[32]
[32]PCB 119.
62 As Mr Hartley says, various areas of study involving, for example a Certificate IV in Business Sales, a Certificate IV in Business Administration followed by a Diploma in Business Administration or a Certificate IV in Logistics, “would be highly beneficial” to the plaintiff’s current role; or to relevant Sales Representative positions (for which, the plaintiff does not currently have “discrete demonstrable skills or experience”); or to other less well remunerated positions, as, for example; working as a General Clerk/Office Administrator (531111); working as an Order Clerk (591117); or, working as a Dispatching and Receiving Clerk (59211).
63 That said, the reservations Mr Hartley expresses about the plaintiff’s capacity to meet the requirements of the better remunerated position as a Sales Representative in Industrial Products and his employability should the plaintiff lose his current employment in the future (in my estimation employment that might properly be characterised as “protected”) should not and cannot be underestimated. As Mr Hartley explains:[33]
[33]PCB 117.
· The plaintiff does not have the expertise/training to work in this position. The coding for Sales Representative (Industrial Products) is for a specialised field of work in which sales representatives are required to have a high level of specialist product knowledge, usually at a Degree level, which explains the Skill Level 1 rating.
· Rather, allowing for the type of product with which the plaintiff presently works as well as his work and skills profile, the plaintiff is probably best suited for work as a Sales Representative – Building and Plumbing Supplies role, coded as 611311, Skill Level 4. In other words, the knowledge the plaintiff has acquired of the Hebel product so far best suits him to the less well remunerated Sales Representative position with his current employer should the plaintiff successfully complete further vocational training.
· The average gross full-time weekly Australian wage for a Sales Representative varies according to the age brackets represented in a table appended to Mr Hartley’s report and adopted by both sides. I note that, based on this table and the plaintiff’s evidence, the current rate of earning of $950 net per week for a sales representative employed by C & S Lightweight, is more readily reflected in the rates paid for a position coded as a Sales Representative – Building and Plumbing Supplies in the 25 to 29 or the 30 to 34 year old age brackets.
· Subject to successful retraining, access to an automatic vehicle and a restriction on carrying heavy product for the purpose of demonstration, the role of Sales Representative is within the plaintiff’s capacity in the long-term. As my discussion of the submissions made in due course shows, when combined these additional factors further reduce the possibility of employment as a Sales Representative in either of the positions considered by the vocational assessors.
· Without further study, should the plaintiff’s current employment cease Mr Hartley believes that the plaintiff’s employability in general will be reduced and his ability to “gain reasonable remuneration” could decline.
· The plaintiff does have a work capacity for primarily administrative duties on a full-time basis.
Maintenance Scheduler/Coordinator
64 Ms Bryant believes that as a trade qualified mechanical plumber with good interpersonal skills the plaintiff is suited to the occupation of Maintenance Scheduler/Coordinator (Entry Level), specifically working in mid-sized companies. It appears that this position did not readily fit into an occupational classification code and, as a result, Ms Bryant used the coding classification for a Maintenance Planner (3129-11, Skill Level 2).
65 The position described, Ms Bryant explains, would involve developing maintenance planning and schedules and coordinating and monitoring the maintenance of all plant equipment (and building repairs). The position also requires further training; that is a Certificate III or IV and that the plaintiff register his qualification to work with the Victorian Building Authority. The average gross weekly remuneration is currently $1609, or when extrapolated over a year, $83,668.
66 Mr Hartley’s reasons for rejecting this position as an option for the plaintiff are summarised in the following points:
· Whilst completion of business management training “would be beneficial for such work”, without trade registration and licensing the plaintiff has no relevant background upon which to base any application for this employment.
· Of particular significance is the fact that the plaintiff has no experience and skills for this work. Among other things, he does not possess the minimum qualification specified in the government training guides as a Diploma in Engineering – Technical; or, as demonstrated by a copy of a current advertisement for a Maintenance Planner/Scheduler produced by Mr Hartley, the requisite tertiary qualifications, trade background and breadth of experience.
· The three examples of jobs Ms Bryant provides, do not demonstrate the level of responsibility, qualification or experience required to gain the high level of remuneration relevant to this employment option, which when averaged over all age groups, Mr Hartley identified as being $2534 gross per week. For instance, Mr Hartley describes the first position advertised as an administrative role for a workshop controller; the second position, as primarily a human resources management role with some maintenance scheduling; and the third position as an office-based administrative and logistics role.
67 Further to the above, I considered it unlikely that, with his modest educational achievements and lack of any qualification, background or experience to equip the plaintiff for this type of employment, the plaintiff, who says he intends to remain with his current employer, would surrender the support and security this full-time employment provides, for the great uncertainty of even attempting the higher studies required for alternative employment in the future as a Mechanical Scheduler.
Ms Bryant’s further evidence
68 Leaving to one side for the moment, Ms Bryant’s tendency to speculate, the substance of her responses to the opinions expressed Mr Hartley and my comments as such, are summarised in point form as follows:
· Enquiries made by Ms Bryant reveal that with the payment of a fee, the plaintiff could register as a master plumber with the Victorian Building Authority. Apparently taking this step would justify a skills classification of Skill Level 3 and qualify the plaintiff to work in the position of Maintenance Planner/Scheduler. I was not, however, satisfied that evidence that the plaintiff may still register as a mechanical plumber adequately addresses the range of concerns expressed by Mr Hartley and summarised above.
· Evidence that two members of the plaintiff’s immediate family work as Sales Representatives does not, in my view, add to or detract from the arguments advanced by either side.
· Evidence that the plaintiff is well motivated and that his currently, very supportive employer is willing to contribute to the plaintiff undertaking further studies is relevant. That said, such evidence must be weighed alongside evidence of other factors that currently, and may in the future, restrict the plaintiff’s physical earning capacity and, it follows, his vocational opportunities. These factors include the plaintiff’s medical restrictions and the possibility that deterioration in his condition over time will impact his earning capacity.
· Ms Bryant’s further evidence regarding the income a Sales Representative could expect to earn in the current labour market was not evidence on which the defendant relied in final submissions. Accordingly, I did not also consider this evidence.
The Employment Assessment/Recruitment Evidence
69 The plaintiff also relies on the reports of employment agency, Flexi Personnel, prepared by Ms Rintoule. Notably, the defendant:
Ø Accepts that, Ms Rintoule, who, among other things, describes herself as a Human Resources Consultant with extensive experience in human resources and recruitment, is qualified to give expert evidence on matters of recruitment.
Ø Does not assert that Ms Rintoule is not qualified to give expert evidence, as she does in her first report, concerning: the plaintiff’s potential earnings had the plaintiff remained in his pre-injury employment; the current earnings of a mechanical plumber; the potential earnings in the positions identified in Ms Bryant’s first report; and the current hourly rate for employment in a light sedentary position.
Ø Does not cavil with the proposition that Ms Rintoule is qualified to give expert evidence, as she does in her second report, of potential earnings/wage information for a mechanical plumber working on a commercial building site. The latter information essentially confirms Mr Coffey’s evidence of the earnings available under the EBA.
70 The substance of the objection made was to various statements made in Ms Rintoule’s first report in which Ms Rintoule essentially repeats medical evidence relating to the plaintiff’s capacity and offers opinions on matters that, as at the date of hearing, were no longer in contention.
71 For instance, it may very well be that, as the defendant submits, Ms Rintoule’s views, expressed as “opinions” on matters relating to: the plaintiff’s physical capacity; and, despite the plaintiff’s positive attitude, his capacity to maintain his current employment status in the future, are not within her field of expertise or training. That said, medical and other evidence relating to the plaintiff’s capacity and recited by Ms Rintoule, is relevant to determining this application, as is Ms Rintoule’s evidence given from a recruitment perspective.
72 Ms Rintoule was qualified to give evidence, as she did, that recruitment opportunities for this plaintiff in the future are limited due to the permanent restrictions on the use of his left upper limb. This evidence reinforces the relevant concern about the availability of specific career paths for this plaintiff.
The evidence of wages paid
73 The evidence of gross income, as at the date of hearing, whether in the current administrative/sales position; or in alternative work as a plumber or mechanical plumber, or in work as a Sales Representative, is as follows:
Ø Based on the plaintiff’s evidence, he currently earns around $49,400 gross per annum in a sales/administrative position.
Ø Based on Mr Simmonds’ evidence, the defendant’s top earning mechanical plumber currently earns no less than $106,132 gross per annum.
Ø Based on the table produced by Mr Hartley, the average weekly full-time Australian wage as at August 2015 (extrapolated over a year) in the 40 to 44 year age bracket was for:
I. A Sales Representative – Industrial Product, $86,112 gross per annum.
II. A Sales Representative – Building and Plumbing Supplies, $72,280.
III. An Air Conditioning and Mechanical Services Plumber, $79,612.
Ø Again based on the table produced by Mr Hartley (and in part on Ms Bryant’s evidence), the average weekly full-time Australian wage as at August 2015 (extrapolated over a year) in the 30 to 34 year age bracket was for:
I. A Sales Representative – Industrial Product, $79,404 gross per annum.
II. A Sales Representative – Building and Plumbing supplies, $66,924.
III. An Air Conditioning and Mechanical Services Plumber, $79,352.
Ø Based on the evidence of Mr Coffey, under the EBA and using the current rate of pay for the period 1 March 2017 to 28 February 2018, a plumber working on a commercial building site can earn between about $133,120 gross per annum and $150,280 gross per annum. As mentioned, Ms Rintoule’s evidence, in her recruitment specialist’s capacity, provides support for this evidence.[34]
[34]PCB 147B.
Ø Based on the evidence of Mr Bassett, a mechanical plumber engaged as a subcontractor by his business earns at least $104,000 gross per annum.
Ø Based on the evidence of Ms Rintoule, effective in Australia from 24 March 2017, an experienced plumber can earn up to $127,378 gross per annum.
74 As can be seen from the gross annual wage figures set out above, leaving to one side for the moment the difference experience may make to the rate at which a mechanical plumber is paid, depending on whether a mechanical plumber is self-employed or employed on commercial sites by a business or under the EBA, the current rates of pay vary from $79,352 gross per annum to more than $150,000 gross per annum.
75 As earlier mentioned, the plaintiff, who was employed on commercial construction sites at the date of injury, gave evidence to the effect that working in the commercial construction areas as a commercial plumber had been a career option.
Submissions
76 Based on the evidence as a whole, and for reasons which will become apparent in due course, I adopt in substance the submission made on behalf of the plaintiff; namely that:
Ø But for the injury, the plaintiff would have attempted to pursue a career as a self-employed mechanical plumber or a mechanical plumber working in the commercial construction area, the latter either with a private employer or on a commercial site under an Enterprise Bargaining Agreement.
Ø The plaintiff’s current employment in what may be properly described as an “Office Manager” role, involves a mixture of administrative and sales tasks, probably more so administrative tasks. The latter does not, however, involve prolonged keyboard activity.
Ø With more experience and a better understanding of the Hebel product, the plaintiff “hopes” to progress in his current, supportive employment to full-time employment in sales, which he says presently pays $950 net per week. As mentioned, this rate of pay is consistent with a sales role in plumbing and building supplies. I infer from this evidence that a sales position in industrial products is not likely available with this employer either now or for the foreseeable future.
Ø The plaintiff has limited education. His only qualification is having completed a plumbing apprenticeship and his transferable skills, as carefully considered by Mr Hartley, are limited.
Ø Current medical evidence confirms that the plaintiff is permanently unfit to return to employment as a plumber, or take up any form of alternative employment that also depends on the use of a fully functional left upper limb. This evidence addresses the requirement of “permanency” under section 134AB(38)(e)(ii) of the Act; that is to say, the evidence establishes that the plaintiff’s loss of earning capacity is likely permanent.
Ø Doctors have explained the restrictions on the plaintiff’s capacity. However as already mentioned, I am satisfied that the plaintiff’s own evidence of the limits on lifting or on keyboard work and so on in his current administrative/sales position should be afforded considerable weight in determining the extent of the plaintiff’s capacity at the date of hearing and for the foreseeable future.
Ø The extent of the plaintiff’s loss of earning capacity should be measured by comparing his capacity without injury with his current capacity at the date of hearing. This approach makes allowance for the positive and negative vicissitudes the plaintiff may experience over a residual working life spanning some 30 years or more. Positive vicissitudes might include the possibility that the plaintiff can earn more in a full-time sales role, whereas negative vicissitudes might include the likelihood of deterioration in the wrist condition and the impact of this on the plaintiff’s capacity for work, or his limited recruitment opportunities should the plaintiff lose his current position.
Ø On the basis that, as he says, the plaintiff would probably have pursued a career as a self-employed mechanical plumber working on commercial building sites, but for injury the plaintiff’s earnings in this type of work would be at least $104,000 gross per annum; that is $2000 gross per week.[35]
[35]See Mr Bassett's affidavit.
Ø Alternatively, even without allowance for the increments for which the EBA provides into 2020, the range of the plaintiff’s possible earnings as an employee mechanical plumber (either with a private employer or under the EBA) is between $79,352 and $133,120 gross per annum. In this regard I have used the lowest of the estimates provided by Mr Coffey to allow for the possibility that, for instance, the higher amount of $150,280 gross per annum is paid to a more experienced plumber. However, as it stands, having regard to any of the gross earnings mentioned the plaintiff’s loss of earning capacity exceeds the statutory threshold.
Ø The options for alternative employment recommended by Ms Bryant are probably not suitable, having regard to particularly the evidence of Mr Hartley and Dr Horsley.
77 In summary then, but for the injury, the plaintiff would likely have had the capacity to earn between $2000 in $2890 gross per week. The extent of the plaintiff’s residual capacity is probably best measured by reference to his gross earnings in his current employment in sales/administrative duties. Using this approach, the loss of earning capacity is both permanent and probably will continue to be productive of a financial loss of 40% or more.
78 Based on the evidence as a whole, the plaintiff satisfied me that he will, after the date of hearing continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more
79 It is, however, necessary to explain my reasons for rejecting the defendant’s submission, the underlying premise being that the plaintiff’s residual capacity should be measured by comparing his potential peak earnings in alternative employment in the future with the without injury earnings of a mechanical plumber at the date of hearing.
80 In this regard, the defendant submitted that when dealing with a worker under the age of 26 at the date of injury, the Act “commands us” to adopt the following approach to determining whether after the date of the hearing the worker will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40% or more:[36]
[36]TN 39 onwards.
Ø If the career projection, as discerned from the evidence, indicates an upward trend, the worker must demonstrate a permanent loss of earning capacity of 40% or more “in the light of that upward trend”.
Ø The Court must compare “like with like” in order to assess whether a worker demonstrates a permanent 40% loss of earning capacity. In this case, the Court must ignore the plaintiff’s earnings as an apprentice as at the date of injury and look forward to “what is his capacity that has been lost which is a forward estimation looking to” the plaintiff’s career path. In summary – “in order to compare like with like, if the (but) for injury figure is to be based on career progress to its maximum, so should the capacity in spite of injury” and that means it is necessary to look at “peak performances in both cases”.
Ø The best comparator of forward projection “is the peak earnings in today’s dollars”. Assuming this 29-year-old plaintiff will reach his career peak in 2027 (that is to say in his early 40s), it would be a “nonsense” to try to determine the projected earnings as at 2027. Rather the correct approach is to use the current gross wage figures for a 40 to 44 year old and compare these with the evidence of the highest earnings of a mechanical plumber currently employed by the defendant.
81 For the reasons outlined earlier, I have already rejected the suggestion that in this case the earnings of a mechanical plumber under the EBA are not an appropriate comparator. On this basis, if the approach the defendant recommends is adopted, the peak earnings for a mechanical plumber (for arguments sake in the current 2017/2018 rather than the 2019/2020 period) exceeds $150,000 gross per annum. On this basis a Sales Representative – Industrial Products, earning at his peak in the 40 to 44 year old age bracket at the date of hearing, is still not earning 60% or more of a mechanical plumber’s peak earnings.
82 That said, the plaintiff submits that the approach suggested by the defendant is unfair. I agree. Moreover, I am not satisfied that the approach advocated by the defendant is “commanded” by the legislation. The provision requires a determination of whether the plaintiff has, on the evidence, established a loss of earning capacity that is permanent and, that such loss of earning capacity will be productive of financial loss of 40% or more.
83 As the Court of Appeal explained in Barwon Spinners Pty Ltd & Ors v Podolak & Ors, the test for permanence is “persistence through the foreseeable future”.[37] In the context of the provision, the test of permanence does not envisage, whether directly or by implication, a scenario that involves consideration of the earnings of a worker who is currently allegedly working at the height of a career in the broad spectrum of alternative employment to which the plaintiff might aspire.
[37][2005] VSCA 33, [111].
84 The most straightforward and fairest approach is one which, as the provision directs, assesses the plaintiff’s capacity from the date of hearing. In this case, this is likely best done by comparing the plaintiff’s current earnings in full-time alternative employment, with the gross annualised earnings of a mechanical plumber (or plumbers), having first determined on the evidence, which of the current earnings of a mechanical plumber best reflects the plaintiff’s likely career but for the injury.
85 Accordingly, I find that the plaintiff meets the requirements of section 134AB(38) of the Act. Moreover, when judged by comparison with cases in the range of possible impairments or losses of upper limb function, the plaintiff’s loss of earning capacity is fairly described as being more than significant or marked, and as being at least very considerable.
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