Meesala v Marvel Packers Pty Ltd
[2016] VCC 1
•20 January 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05543
| SUNIL MEESALA | Plaintiff |
| v | |
| MARVEL PACKERS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 January 2016 | |
DATE OF JUDGMENT: | 20 January 2016 | |
CASE MAY BE CITED AS: | Meesala v Marvel Packers Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left knee – pain and suffering and pecuniary loss
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop [2014] VSCA 292
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr JH Mighell QC Mr D Seeman | Pascalis Peter Zaparas |
| For the Defendant | Mr D R Myers | Thomson Geer |
HIS HONOUR:
1 In this proceeding the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering and economic loss consequences of an injury suffered by him in the course of his employment with the defendant.
2 The relevant injury is that of the left knee and the impairment of function being that of the lower left limb.
3 In the proceeding:
· The plaintiff relies on two affidavits filed by him on 3 July 2014 and 20 December 2015 respectively, and an affidavit from his current employer filed on 23 December 2015.
· The defendant relies upon an affidavit of Paul McBeth filed 21 December 2015.
4 Otherwise the parties rely upon medical and like reports and wage records which have been tendered by them.
5 The plaintiff gave viva voce evidence and was cross-examined. The content of the viva voce evidence, the affidavit evidence and the medical evidence is a matter of record and I do not propose to set out that material, although I will refer to aspects of it in the course of my reasons in order to explain and give context to my findings.
6 Quite appropriately, given the extent of the impairment of function of the plaintiff’s left lower limb and the consistency of the medical evidence as to the disability which arises by reason of that injury, the enquiry by the defendant in this instance was focussed solely upon the impact of the plaintiff’s injury upon his earning capacity.
7 Relevant to that end it is appropriate that I record that:
· The plaintiff was born in India and is currently thirty-nine years of age. He migrated to Australia in 2005 and commenced working with the defendant at around that time. He suffered the subject workplace injury in January 2012.
· The plaintiff was employed by the defendant as a packer. He worked a 38-hour week but supplemented his income by working prodigious hours of overtime.
· As at the time of his injury, the plaintiff’s base rate of pay was $16.00 per hour or $31,616 per annum.
· During the financial years between 2007 and 2012, the plaintiff’s gross income with the defendant was as follows:
2007 – $51,250.00
2008 – $60,582.00
2009 – $51,825.00
2010 – $52,265.00
2011 – $66,215.00
2012 – $70,097.00
8 Assuming that the plaintiff’s base hourly rate was consistent between the years 2007 and 2012,[1] the plaintiff supplemented his base income by a figure of no less than $20,000 and regularly between $20,000 and $40,000 per annum by working overtime.
[1]Although there is no evidence upon this issue, this assumption is clearly very conservative and works to the plaintiff’s disadvantage in the calculation which follows.
9 In the three years immediately before the plaintiff suffered his injury, the yearly pattern of the plaintiff’s income involved one of consistent increase.
10 The log of the overtime hours worked by the plaintiff during the calendar year January 2011 to January 2012 reveals the plaintiff to have worked a total of 1,967.75 overtime hours and that he generated a total income of $72,000.
11 The plaintiff was terminated by the defendant on 17 December 2014. His pattern of work with the defendant following his injury was in marked contrast to that prior to his injury, in that he worked between 38 and 40 hours per week.
12 The plaintiff commenced employment with his current employer, Ready Meals Pty Ltd, in January 2015. Since commencing that employment, he has generally worked 38 hours a week.
13 I am satisfied that the plaintiff was a truthful and reliable witness.
14 Whilst it was put on behalf of the defendant that the plaintiff’s evidence given at the Fair Work Commission that it had been his expectation that he would not retain his job with his current employer involved an inaccurate statement by him, in that the contrary position has eventuated, I am satisfied that that position arises not by reason of the plaintiff seeking to mislead the Commission but rather that the outcome arises by reason of a vicissitude of life which has worked in the plaintiff’s favour.
15 My finding in this regard as to the truthfulness of the plaintiff is buttressed:
· not only by the very favourable impression formed of the plaintiff as he gave evidence
· but further by the plaintiff’s history of hard work; his return to the defendant’s employment following his injury and his actions in minimising the impact of his injury upon his working capacity by continuing in employment with the defendant until he was retrenched and thereafter; secondly, within a short period of time, commencing his employment with his current employer, all of which is consistent with the presence of an attitude of minimising the economic impact of his injury upon his life.
16 It was the plaintiff’s evidence that he had been offered overtime in his current job, that he had attempted to work overtime but that he found that overtime work exacerbated his symptoms to the extent that he was unable to continue to work overtime.
17 I accept that evidence, which is corroborated by the evidence of the plaintiff’s current employer, namely that he is a valued employee but that, in reality, given the rest breaks he requires by reason of his symptoms, the plaintiff works 6 hours per day rather than 8 hours per day.
18 The plaintiff’s evidence, that of his current employer and the medical evidence in this case satisfies me, for the reasons which I will develop below, that the plaintiff’s capacity for employment is permanently limited to working hours no greater than, and probably less than, 38 hours per week.
19 It is the evidence of Mr McBeth that were the plaintiff to have continued his employment with the defendant, at the present time, the availability of overtime hours would be extremely limited.
20 It is clear however that the plaintiff would, in his current employment, be able to work overtime hours, and I am satisfied, having regard to the plaintiff’s history of supplementing his income by working huge overtime hours, that in absence of his injury, in the event that the ability to work overtime in employment with the defendant had evaporated, it is likely that the plaintiff would have sought employment with his current or other like employer where his ability to supplement his base income by working significant overtime would have been facilitated.
21 I make that finding having regard to the plaintiff’s work history of working very significant overtime throughout the period of his employment with the defendant which is no better illustrated than by the pattern of the plaintiff’s overtime during the period between 25 January 2011 and 17 January 2012 during which the plaintiff worked, as I have previously commented, a total of 1,967.75 overtime hours which equated to an average overtime of 36.48 hours per week.
22 I am satisfied in this instance, having regard to the plaintiff’s pattern of earnings in the three years prior to his injury which involved a regular increase in his income and the pattern of overtime worked by the plaintiff as set out in exhibit D, that I should fix the figure which most fairly reflects plaintiff’s earning capacity had the subject injury not occurred for the purpose of the application of the formula under the Accident Compensation Act 1985 (“the Act”) at the sum of $1,500.00 per week or $78,000 per annum.
23 I do so being satisfied that to approach that task by merely employing an averaging approach to the plaintiff’s yearly income would be doing the plaintiff a disservice, given the fact that during the period set out in exhibit D, the plaintiff regularly earned weekly income well in excess of $1,500.00 per week and that my task in this instance is to assess the plaintiff’s pre-injury earning capacity by an analysis of his physical and mental capacity to work, as well as his willingness to work in the context of his work history and the factors which pertained to his workplace, both historically and at the present time.
24 In determining the plaintiff’s post-injury earning capacity in suitable employment, it was the defendant’s position that I should approach that task by considering the plaintiff’s current capacity to earn income in his current work in which it was put that the plaintiff had earned income in the vicinity of $49,296.00 per annum.
25 I am satisfied that this position taken by the defendant as to the capacity of the plaintiff to generate income in his current employment represents an inflated assessment of that capacity given:
· The plaintiff’s evidence, which I accept, as to the effect which his attempts to work overtime had upon him;
· The evidence of Mr Bromidis as to the difficulty which the plaintiff faces in working even a 38-hour week; and
· The medical evidence which satisfies me that the plaintiff does not retain a capacity to work overtime.
26 On the basis of that evidence, I am satisfied that the plaintiff’s post-injury earning capacity in his current employment should be fixed at the plaintiff’s current wage based on a 38-hour working week; namely $801.04 per week or $41,654 per annum.
27 I am further satisfied that this figure represents the plaintiff’s post-injury retained earning capacity in suitable employment.
28 I make that finding for the following reasons:
· Firstly, I accept the plaintiff’s evidence as to his incapacity to work overtime which is corroborated by the medical evidence generally, but with particular reference to the reports of the plaintiff’s treating surgeon, Mr Hunt, and the defendant’s occupational physician, Dr Barberas, the latter of whom has charted the plaintiff’s progress in the course of medical examinations conducted in 2012 and 2015. The opinions by each of those practitioners as to the plaintiff’s capacity for work are, in my opinion:
§ consistent with each other
§ well-reasoned; and
§ consistent with the medical evidence generally;
and are, in my opinion, persuasive as to this issue.
· Secondly, the defendant did not agitate in the course of its closing submission that in undertaking the assessment of the plaintiff’s retained capacity for employment, I should take into account the opinion of Joanna Bryant that the plaintiff had the capacity to re-train for employment as an import-export clerk. Instead, Mr Myers of Counsel asked me to focus my attention in assessing the plaintiff’s retained earning capacity upon the plaintiff’s ability to generate income in his current employment. I should say, however, that I am satisfied in any event, having regard to the opinion expressed by Ms Leonie Schneider, which I find to be persuasive, that the plaintiff would be unlikely to complete a Certificate IV in International Trade, which qualification is a pre-requisite to qualify the plaintiff for employment in the capacity of an import-export clerk.
29 For these reasons, I am satisfied that the plaintiff’s current employment represents “suitable employment” within the meaning of the Act and accordingly, that the plaintiff has sustained a permanent loss of earning capacity which exceeds the statutory threshold in this instance, the consequences of which entitle him to the leave sought in this instance.
30 In making that finding, I do so applying the approach to my analysis which I have set out above which accords with the decision articulated by the Court of Appeal in Herald & Weekly Times Ltd & Victorian WorkCover Authority v Jessop.[2]
[2][2014] VSCA 292 (19 November 2014)
31 For the reasons set out above, I am satisfied that the plaintiff has established that his retained capacity for post-injury employment is such that it entitles him to commence a proceeding claiming pecuniary loss damages in this instance and accordingly, that the plaintiff is entitled to the leave sought in this application; namely to commence a proceeding claiming both damages and or pecuniary loss the subject of this application.
32 I will hear the parties as to the order to be made in this instance and also as to costs.
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