McVicar v Aos Engineering Pty Ltd
[2018] VCC 903
•22 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05907
| BRENDON McVICAR | Plaintiff |
| v | |
| AOS ENGINEERING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2018 | |
DATE OF JUDGMENT: | 22 June 2018 | |
CASE MAY BE CITED AS: | McVicar v AOS Engineering Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 903 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury – injury to the left thumb – pain and suffering damages and loss of earning capacity damages – whether the plaintiff satisfies the threshold test for serious injury in respect of loss of earning capacity and pain and suffering damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: The application for serious injury certificate for pain and suffering damages is granted. The application for serious injury certificate for loss of earning capacity damages in respect of the injury to the plaintiff’s left hand on 1 October 2013 is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr J L Batten | Russell Kennedy Lawyers |
HIS HONOUR:
1 The plaintiff brings this application by way of Originating Motion dated 15 December 2017. The plaintiff applies for leave in respect of an injury to his left thumb. The injury to the plaintiff’s left thumb occurred on 1 October 2013. The plaintiff was employed as a metal worker with the defendant company, AOS Engineering Pty Ltd (“AOS Engineering”).
2 This application requires the plaintiff to satisfy the test set out in s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”).
3 The plaintiff seeks leave to bring proceedings for pain and suffering damages and loss of earning damages in respect of the injury to his left thumb and, in particular, the loss of use of his left hand. The Court is required to determine the consequences of the injury to the plaintiff’s left hand before leave can be granted.
4 The following evidence was adduced in the course of the hearing:
·The plaintiff gave evidence and was cross-examined.
·The plaintiff tendered the following documents:
§The Plaintiff’s Court Book (“PCB”) pages 1 to 2 and pages 28 to 53 (exhibit “A”).
·The defendant tendered the following documents:
§The Defendant’s Court Book (“DCB”) pages 1 to 7b; pages 8 to 35; pages 38 to 119 (exhibit 1).
5 Mr Batten, counsel on behalf of the defendant, identified the issues in this application as follows:
(i)In respect of the loss of earning capacity certification, the plaintiff was never going to become a fitter and turner. Further, the plaintiff would be unable to establish a 40 per cent loss of income as required under the Act, even if he did become a fitter and turner;
(ii)In respect of the pain and suffering claim, this case was a “range case”, and the plaintiff only had a short time away from work after the injury to his left thumb;
(iii)The defendant admitted that the injury has occurred in the course of employment;
(iv)The defendant admits that causation for the injury is admitted.
6 The plaintiff’s credibility was challenged in the course of the hearing. The plaintiff impressed me as a person of stoical disposition. In my assessment, the plaintiff was a frank, realistic and sensible witness. It is clear from his history that he has attempted to obtain and maintain employment both before and after the injury to his left hand.
The statutory scheme
7 The application is brought under the definition of “serious injury” contained in ss(37)(a) of s134AB of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999;[1]
[1]Section 134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners (ibid) at paragraph [33]
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Sub-section (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such loss must be to the extent of 40 per cent or more, both at the date of hearing and permanently;
(g) In conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Supra
9 I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
10 The plaintiff was born in 1991 and is now twenty-seven years old. It is agreed that at the time of the injury to the plaintiff, he was twenty-four years old.[4]
[4]PCB 28
11 The plaintiff is a single man. He has one daughter, who is now two years old. He currently lives with his parents, after having cohabited with his daughter’s mother in the past.
12 The plaintiff’s education was completed at Year 11 in 2007.[5]
[5]PCB 28
13 In April 2008, the plaintiff commenced studies with Gippsland Group Training Ltd. He entered an apprenticeship as a fitter and turner and remained in that position for eighteen months. The reason his apprenticeship was ceased was that his host employer went out of business.[6] The plaintiff has subsequently worked for Coles as a shop assistant and shelf stacker. He then worked for a very short time with Jayco Caravans as an electrical hand.[7] The plaintiff then returned to metal fabrication work at GB Galvanising. The plaintiff had also worked in grain harvesting in the Swan Hill district for a couple of months. He then returned to work in metal fabrication in mid-2012 with Lowbake Australia Pty Ltd.[8] The plaintiff moved from Lowbake Australia Pty Ltd to Alltek Industries in January 2013, where he worked for a couple of months. On the advice of those at Alltek Industries, he then moved his employment to AOS Engineering in mid-February 2013, in the hope of restarting his fitter and turner apprenticeship.[9]
[6]PCB 28
[7]PCB 29
[8]PCB 29
[9]PCB 29
14 The plaintiff was injured in the course of his employment on 1 October 2013.
The injury with AOS Engineering
15 The plaintiff commenced his employment with AOS Engineering in mid-February 2013. His work involved welding, grinding, loading parts into machines, and packing and assisting with deliveries.[10]
[10]PCB 29
16 The plaintiff set out the circumstances of the injury to his left hand in the following terms.
“I was injured during the course of my employment with AOS Engineering on 1 October 2013. I was standing at a workbench using a hand-held grinder, grinding tacks of weld to enable me to remove the jig from the workbench. There was pressure to do the work quickly. The grinder stuck, grabbed and moved whilst I was grinding and cut into the region of my left thumb. There was no guard on the grinder. I had previously complained to the boss about the absence of the guard. I was wearing a welding glove and the grinder cut through the glove. I felt numb and left my glove on. The boss helped to take the glove off. After it had been removed I could see the bone and after a while the area started bleeding heavily. I was in shock and nearly fainted.”[11]
[11]PCB 29-30
Medical treatment
17 Immediately after the injury, the plaintiff was taken to see a local general practitioner, Dr Saghir, at Hallam. At that clinic, his left thumb was dressed and splintered, and his arm was placed in a sling. The plaintiff was then referred to the Dandenong District Hospital. Upon arrival at the Dandenong District Hospital, he was diagnosed as having a significant injury to the tendon of his left thumb. He was then transferred to the Epworth Hospital immediately.
18 The plaintiff was operated on by the plastic and reconstructive surgeon, Mr Cheng Hean Lo. Dr Lo reports that he operated on the plaintiff’s left thumb to repair a 100 per cent division of his left extensor pollicis longus (“EPL”) tendon.[12]
[12]PCB 43
19 On 3 October 2013, the plaintiff attended Dr Shoaib Munawar, general practitioner. His dressing was checked and his left arm remained in a sling.[13]
[13]PCB 30
20 On 11 October 2013, Dr Lo reviewed the plaintiff’s surgical wound to his left hand. The dressings were changed and the splint was re-applied to the plaintiff’s left thumb.[14] The plaintiff was referred to a hand therapist. On 17 October 2013, the plaintiff attended upon Nikki Shortill for hand therapy treatment.[15] Between 17 October 2013 and February 2014, the plaintiff had thirteen visits and treatments by Nikki Shortill. Between March 2014 and November 2014, the plaintiff attended on eight occasions with Ms Shortill, and between February 2015 and the current time, the plaintiff has had one further treatment by Nikki Shortill.
[14]PCB 43
[15]PCB 30
21 The plaintiff returned to work with AOS Engineering on 19 October 2013. His hand was in a splint and he was on alternative duties. The plaintiff continued with his return-to-work program and his splint had been changed to a dynamic splint. The plaintiff resigned from his employment with AOS Engineering on 9 January 2014. The plaintiff stated his reason for doing so was that he felt under pressure to do work he was physically unable to do due to the injury to his hand.[16]
[16]PCB 31
22 The plaintiff prepared a notice of resignation.[17] I note that the resignation is dated 6 January 2014. In the course of his evidence, the plaintiff was cross-examined about his statement of having an “opportunity that was too good to refuse”. The plaintiff agreed that he had said that, but disagreed with the suggestion made by Mr Abell, that he had the offer of a job driving a truck or a forklift.[18] I accept the plaintiff’s explanation for ceasing work at AOS Engineering was because he was feeling the pressure of work and was unable to fulfil his work commitments due to his left hand injury.
[17]DCB 102
[18]Transcript (“T”) 25
Medical opinions
The Plaintiff’s doctors
Dr Shoaib Munawar, General Practitioner
23 The plaintiff relied on a referral by Dr Shoaib Munawar to Dr Lo, the surgeon. The date of the referral is 1 March 2015. Dr Munawar was seeking Dr Lo’s advice about the reduced strength and restriction of movement in the plaintiff’s left thumb as a result of the injury at work.
Ms Nikki Shortill, Occupational Therapist and Hand Therapist
24 Ms Nikki Shortill prepared two reports, one dated 17 October 2013 to the plaintiff’s surgeon and the other dated 18 June 2014 to the plaintiff’s general practitioner. In her June 2014 report, Ms Shortill notes that the plaintiff has made a good recovery, but continues to have reduced flexion range of motion of the thumb, and reduced strength.
25 The plaintiff continues to complain of those symptoms to the present time.
Dr Cheng Hean Lo, Plastic and Reconstructive Surgeon
26 The plaintiff relied on a report from Dr Cheng Hean Lo dated 11 October 2013 to the plaintiff’s general practitioner. He noted the nature of the surgery as a 100 per cent EPL division. Dr Lo had referred the plaintiff to Nikki Shortill for hand surgery.[19]
[19]PCB 43
Dr Joseph Slesenger, Specialist Occupational Physician
27 Dr Joseph Slesenger prepared a report dated 17 April 2018 in respect of this application. This report was a medico-legal report. Dr Slesenger noted that the plaintiff was keen to complete an apprenticeship, but noted that the plaintiff did not identify an appropriate apprenticeship.[20] Dr Slesenger also took note of the aspirations and expectations as follows:
“… [The plaintiff] advised that he remains keen to complete his apprenticeship as a fitter and turner, but at this stage, does not believe that he has the capacity to complete the training given his ongoing left hand impairment. He advised that he has considered a plumbing apprenticeship as well as an electrician; however, is unable to consider these options due to the “hands-on” nature of the job tasks. He does not regard his current employment as a long-term option.”[21]
[20]PCB 47
[21]PCB 48
28 I note that the plaintiff never gave evidence of being interested in any other apprenticeship, other than a fitter and turner.
29 In examination, Dr Slesenger noted the following:
“Grip Strength:
oRight: 47 kg, reproduced on repeat testing.
oLeft: 18 kg, reproduced on repeat testing.
…
Upper limb neurological examination:·Power: there was weakness to the left thumb extension and flexion. Otherwise, power was normally bilaterally … .”[22]
[22]PCB 49
30 Dr Slesenger’s opinion was that the plaintiff could not return to work performing his pre-injury role of a metal worker. He stated that the job demands of a metal worker, and I take that to include a fitter and turner, lie outside the likely capacities of the plaintiff. Nevertheless, Dr Slesenger was of the opinion that the plaintiff could return to full-time work. It is the evidence in this case, that the plaintiff is working full time as a driver for waste management, and has been doing so since November 2015 to the present time.[23]
[23]T32
31 There were two reports tendered in support of the plaintiff’s application prepared by Ms Shortill dated 17 October 2013 and 18 June 2014. It is to be noted that the plaintiff has only attended Ms Shortill for treatment on one occasion since November 2014. Prior to that, he had had twenty-one treatments with Ms Shortill for his left hand and thumb.
32 In her report dated 18 June 2014, Ms Shortill noted:
“… [The plaintiff] has returned to full work duties but remains concerned about the reduced range in his thumb and is interested if there is anything surgically that could be offered to improve his outcome. If his range of motion ceases to improve further with therapy I will arrange for a review with a specialist hand and upper limb surgeon.”[24]
[24]PCB 42
33 I note that the plaintiff did, in fact, return to Dr Lo for further review, but had been informed that there was nothing further the surgeon could do for him.
The Defendant’s doctors
Mr John Anstee, Plastic and Reconstructive Surgeon
34 Mr Anstee prepared a report dated 3 May 2016 for the purposes of this application. Mr Anstee took a history from the plaintiff that he was ingesting Panadeine Forte occasionally for pain relief in respect of his thumb.[25] On examination, Mr Anstee noted that the range of movements to the left thumb was reduced.[26] Mr Anstee noted that the treatment for the plaintiff had ceased at that time and that the plaintiff had made a substantial recovery, but the injury is not completely resolved.[27] Mr Anstee made a one per cent whole person impairment in relation to the plaintiff’s use of his left hand; however, noted that the left thumb had an abnormal motion.[28]
[25]DCB 39
[26]DCB 40
[27]DCB 41
[28]DCB 42
The Medical Panel
Dr Caroline Brand and Dr Damian Ireland
35 The Medical Panel, consisting of Dr Caroline Brand, rheumatologist, and Mr Damian Ireland, orthopaedic surgeon, prepared reasons for their ruling dated 23 November 2016. In the Medical Panel Reasons, the Panel noted:
“The Panel observed active range of movement of the left thumb and noted that there was mild reduction in left thumb interphalangeal joint flexion and extension, left thumb opposition and abduction. There was normal movement in all other digits of the left hand and wrist.
…
The Panel tested the worker’s grip strength using a Jamar dynamometer. The Panel noted that the left hand measurements exhibited significant variability, indicating that this test was an unreliable measure of strength.”[29]
[29]DCB 48
36 The Panel then discussed the findings of Mr Anstee, referred to earlier in these Reasons. While the Medical Panel agreed with the total assessment in respect of whole person impairment, the Panel found a greater restriction in radial abduction and opposition than Mr Anstee.[30]
[30]DCB 50
Dr David Barton, Consultant Occupational Physician
37 Dr David Barton prepared two reports dated 6 October 2017 and 16 May 2018 in respect of this application. Dr Barton noted a history from the plaintiff that he took between six to eight Panadeine or Panadeine Forte tablets per week.[31]
[31]DCB 53
38 Dr Barton examined the plaintiff and made the following observations:
“His hands showed a significant degree of calluses, roughening and soiling with these changes being more apparent on the right side. There were clear signs of use of the thumb with soiling of the pulp of the thumbs with these changes been (sic) equally present on both sides.
…
There was some limitation of interphalangeal joints of the thumb and possible minor limitation of movement of the carpometacarpal joint. Sensation was normal in the thumbs.
Grip measurement was tested using a Jamar dynamometer which showed a variable reduction on the left side compared to the right.”[32]
[32]DCB 54
39 Dr Barton then gave his opinion as follows:
“… [The plaintiff’s] claim is not well supported by the objective findings on examination. His hands were extensively callused, soiled and roughened, consistent with a high level of physical activity. These changes were slightly more pronounced on the right side, as would be expected in someone who was right-handed.
…
Testing strength using the dynamometer showed a variable effort on the left side suggesting poor effort. I note that the Medical Panels found similar findings and felt that the apparent reduced grip strength could not be used in their objective assessment of the worker’s impairment.
…
Also I believe the amount of pain reported is disproportionate to the findings of active use of the left hand as based on the equal forearm circumference and the state of the palms and finger pulps with soiling and roughening.”[33]
[33]DCB 54-55
40 It was clear from Dr Barton’s first report that he was of the opinion the plaintiff had full capacity to work.
41 Dr Barton did not review the plaintiff for his second report dated 16 May 2018. In his second report, Dr Barton was asked to comment on the likely jobs the plaintiff could perform with his injury. In that report, Dr Barton repeated his comments about the grip measurements taken of the plaintiff and the variations in those readings on the Jamar dynamometer.[34]
[34]DCB 64
42 Dr Barton’s final opinion is that the plaintiff could perform all tasks, including forklift driving and CNC operator, even though he may have a small problem with his left thumb. In this regard, Dr Barton disagreed with Dr Slesenger.[35]
[35]DCB 65
Mr Murray Stapleton, Plastic and Hand Surgeon
43 Mr Stapleton examined the plaintiff on behalf of the defendant and prepared a report dated 28 March 2018. Mr Stapleton noted in examination as follows:
“… He has reduced range of movement in flexion and extension of the interphalangeal and metacarpophalangeal joints of the left thumb. The power of his grip is diminished. The left thumb is painful, particularly on a cold morning or if he has to do repetitive activities. He is careful not to bump the thumb, because when he does so, it is painful.”[36]
[36]DCB 58
44 Mr Stapleton gave his opinion as follows:
“… The injury has involved the extensor and not the flexor tendon, but it is clear that because of the injury to the extensor tendon, flexion is not as complete as it might be and, therefore, that would explain a degree of lack of contribution to grip strength.
…
… I have seen people with greater injuries than this gentleman return to work, being able to use a power tool, such as an angle grinder or welder, and if there is any question as to whether or not this gentleman would be able to perform activities such as those, then an observation of what he does on a day-to-day basis should be considered.”[37]
[37]DCB 59
45 Mr Stapleton noted that the plaintiff was working full time as a truck driver and was doing so without restriction.
The credit of the Plaintiff
46 I have had the advantage of seeing the plaintiff cross-examined in this application. I assess the plaintiff as being of stoic disposition. His answers to Mr Batten in cross-examination were honest, and on many occasions against his interests in respect of his employment capacity now and into the future. There was no video surveillance film shown of the plaintiff to contradict the evidence that he gave to the Court. His history to all of the doctors has been consistent, both to his own medical practitioners and to the medical practitioners who examined him on behalf of the defendant.
Pain and suffering consequences of the left thumb injury to the Plaintiff
47 The plaintiff relies on his affidavits sworn on 24 July 2017 and 18 May 2018. The plaintiff also relies upon the evidence he has given in the course of this proceeding. In the affidavits, and in his evidence, the plaintiff sets out the consequences of the injury to his left thumb.
Sleep
48 The plaintiff deposed to the fact that pain disturbs his sleep. This pain sometimes is in the form of pins and needles, or a throbbing, which may occur three nights per week.[38] I accept that the plaintiff’s sleep is disturbed by the pain from his injured left thumb. I accept that this is a very considerable consequence for the plaintiff, in the sense that a person whose sleep is interrupted on a regular basis as a result of pain, is a very considerable consequence.
[38]PCB 33 at paragraph [19]
Pain
49 The plaintiff deposed to the pain to his left thumb being more significant with increased activity, or when he knocks it. He gave evidence that the pain was worse in colder weather. In his evidence, the plaintiff stated that he gets a really sharp pain in his left thumb when he knocks it and that the pain cannot be managed for a little while.[39] The plaintiff takes pain relief medication to ameliorate the symptoms of pain.
[39]T66
50 I accept that the plaintiff’s pain experienced in his left thumb as a result of knocking it during the course of his work and daily life, is a very significant consequence for him. He describes it as being like an electric shock.
Medication
51 The plaintiff gave evidence that he takes Panadeine Forte on occasion to ameliorate his pain symptoms. In his evidence, the plaintiff stated as follows:
Q:“…When is the last time you can recall getting prescribe[d] Panadeine Forte and from whom?---
A: Um, I don’t know, it would have been a couple of months ago.
Q: So, guess?---
A: Yeah, I don’t know.
Q: Well, I’m asking you from your memory not to guess?---
A: Yeah.
Q: When is the last time you were prescribed Panadeine Forte?---
A:As I said, I do not know. I have been taking Panadeine, Nurofen and Panadeine Extra for pain.”[40]
[40]T40, L14-22
52 The plaintiff was challenged about his evidence in relation to Panadeine Forte. The plaintiff gave evidence that he had some Panadeine Forte still at home.[41] In his second affidavit, he stated that he took Panadeine Forte approximately three times a week.[42] In answer to a question from me concerning his taking three Panadeine Forte tablets per week, the plaintiff said as follows:
[41]T41
[42]PCB 36
“A:Yeah. It’s – it’s sort of – it’s hard to – I don’t do it every week, but it’s whenever it hurts I take it but, you know, I try and take Panadol because I don’t want to have to keep coming back to the doctors to, you know, go get a prescription.
Q: Yes?---
A: I’m using Panadol and Nurofen a lot instead.”[43]
[43]T66, L2-7
53 If I accept that the plaintiff does take Panadeine Forte on an “as needs” basis, but prefers to take Panadol Extra and Nurofen to relieve his pain symptoms. I find that the necessity for the plaintiff to ingest pain-relief medication on the basis that he has given evidence about it is a very considerable consequence for him. This consequence will be long-lasting and permanent.
Lack of mobility
54 The plaintiff gave evidence that he had a reduced strength of grip in his left hand as a result of the injury to his left thumb. He described that on occasions he would drop things.[44] I accept that the left hand is not the plaintiff’s dominant hand, but because he is involved in manual employment, he is someone who relies on the use of both hands to engage in his employment and general daily life. I accept that his grip in his left hand is compromised as a result of the injury to his left thumb. I note the opinions of Mr Stapleton and Dr Barton when I make that finding. I accept that the loss of strength in the plaintiff’s grip in his left hand, and the consequence of dropping things on occasions, is a very considerable consequence to the plaintiff in the circumstances of this case.
[44]PCB 33
Loss of career – work
55 The plaintiff currently works full time as a waste-management truck driver. He has been employed full time in that role since November 2015. His evidence was that he always wanted to be a fitter and turner. He has uncles and a cousin who are fitters and turners. His father is a carpenter. The import of the plaintiff’s evidence was that he sought to reconnect with his original apprenticeship as a fitter and turner. In his report to Dr Slesenger, he was not so definitive about being a fitter and turner, but expressed an interest in doing an apprenticeship, being in electrical, or some other trade. This is inconsistent with his direct evidence about seeking a fitter and turner apprenticeship. It is nearly eight years since the plaintiff was engaged in his fitter and turner apprenticeship, and since he ceased his employment with AOS Engineering, he has not made any direct attempts to re-engage with his apprenticeship as a fitter and turner.
56 I do not accept that the plaintiff has suffered the loss of an opportunity to engage in a career as a fitter and turner. The plaintiff has the physical capacity to be a fitter and turner, if he so desired, and has not made any genuine efforts to obtain, first of all, a continuation of his apprenticeship, and subsequently work in that trade.
Musical and sporting activities
57 The plaintiff gave evidence that he was unable to continue to play his guitar as a result of the injury to his left thumb. In his evidence, the plaintiff stated as follows:
Q:“And you’d use the digits – the fingers, rather than your thumb to press the chords. Is that right?---
A: No, you need your thumb to play the guitar.
Q:You need your thumb to – you need the cradle between your index and your thumb to hold the guitar?---
A:No. Do you play guitar? You actually need your thumb to bend around to hold it properly. You can’t have your thumb sitting out. You need to grip the guitar.
Q: So you haven’t played it since your accident?---
A: I can’t play.”[45]
[45]T44, L23-31
58 The plaintiff gave evidence that he had tried to play the guitar but was unable to.
59 In re-examination, the plaintiff gave the following evidence:
Q: “Just in terms of the guitar, what’s the difficulty with the guitar?---
A:Um, I have tried playing since, but I don’t know if you know, but the neck on the guitar is – it’s pretty thick, unless you’re playing a little electric. The acoustics are thick, and I’ve tried getting my hand around the neck of the guitar and it hurts my thumb to try and put pressure on it. I just – and you can’t sit your thumb back. It has to be over the neck of the guitar.”[46]
[46]T65, L14-21
60 The plaintiff also gave evidence that he was unable to ride his dirt bike as a result of the injury to his left thumb. He stated that his dirt bike remained in the shed at home and had not been used since the injury to his left thumb.[47] The plaintiff also stated he could not set up a tent.[48]
[47]PCB 34
[48]PCB 37
61 I accept the plaintiff’s evidence that he had previously written songs when he was a child and learnt to play the guitar. I accept that the injury to his left thumb has left the plaintiff unable to continue with his involvement with music through playing the guitar. I find that this loss to the plaintiff is a very considerable consequence for him and that it is permanent.
Conclusion
62 I find, based on the reasons set out in respect of the consequences of the left thumb injury to the plaintiff, that when taken together, and individually, they meet the statutory test of being “significant or marked” and being “at least very considerable”. I grant leave to the plaintiff to bring proceedings to recover damages for the injury to his left thumb as a result of an accident which occurred on 1 October 2013 in the course of his employment with the defendant, AOS Engineering.
Loss of earning capacity
63 In order to establish that the plaintiff be given leave to bring proceedings in respect of loss of earning capacity, he must establish that:
(a)at the date of the hearing the plaintiff has a loss of earning capacity of 40 per cent of more pursuant to s134AB(38)(e)(i); and also
(b)after the date of hearing, the relevant loss of earning capacity will continue permanently pursuant to s134AB(38)(e)(ii).
64 The measurement of the loss of earning capacity as set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
65 In this particular application, the plaintiff was under twenty-six years of age at the time of injury and, therefore, the calculations of gross income figures is not governed by the six-year period set out in s134AB(f) of the Act. I am required to assess the loss of income on considerations that are described as a “common law basis”. Nevertheless, the plaintiff still has to establish that he has a loss of earning capacity of 40 per cent or more.
66 The evidence in this case was that the plaintiff was earning $665 gross per week at his work with AOS Engineering. The plaintiff’s claim for loss of earning capacity certification for serious injury relied upon an acceptance by the Court that he was going to return to working as a fitter and turner after completing an apprenticeship, and that the rate of pay for a fitter and turner was $45 gross per hour. The evidence in this case was that the plaintiff was currently earning a gross income, on average, of $1,270 per week. The plaintiff, in his evidence, stated that his cousin, who is a fully-qualified fitter and turner, was on a pay rate of $40, or over, gross per hour.[49] Accepting the plaintiff’s evidence on that point would mean that the pay for a full-time fitter and turner would be $1,520 gross per week.
[49]T28
67 The defendant relied upon the evidence set out in the affidavit of Geoff Abell, sworn 23 May 2018.[50] The defendant’s position is that the full-time gross pay for a fitter and turner is $1,086 per week.
[50]DCB 7a
68 Even if I accepted the plaintiff’s best earnings for a fully-qualified fitter and turner of $40 per hour, then his current earnings are approximately 80 per cent of that figure.
69 I find that the plaintiff has not made any proper and determined effort to re-engage with his apprenticeship as a fitter and turner, or to pursue such a trade. The medical evidence in this case does not support the proposition that he is unable to engage in the trade of a fitter and turner due to the injury to his left thumb.
70 The evidence in this case is clear that the plaintiff is currently working as a truck driver in the waste industry, and has been doing so for at least two-and-a-half years. There is no indication that the plaintiff cannot continue in this employment, or similar employment, into the future, earning incomes which are greater than 60 per cent of the earnings of a fully-qualified fitter and turner.
71 The application by the plaintiff for serious injury certificate in respect of loss of earning capacity resulting from the injury to his left thumb on 1 October 2013 is dismissed.
72 I will hear the parties on costs.
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