Moya v Group Messengers Pty Ltd
[2019] VCC 2155
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-06053
| CLAUDIO MOYA | Plaintiff |
| v | |
| GROUP MESSENGERS PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HER HONOUR JUDGE HINCHEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 19 June 2019 | |
DATE OF JUDGMENT: | 19 December 2019 | |
CASE MAY BE CITED AS: | Moya v Group Messengers Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2155 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – paragraph (a) – pain and suffering – loss of earning capacity – definition of worker – relevant principles
Legislation Cited: Accident Compensation Act 1985, s5, s7A and s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Hunter v Transport Accident Commission [2005] VSCA 1; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Elazac Pty Ltd v Linton Shirreff [2011] VSCA 405; Barro Group Pty Ltdv Fraser & Anor [1985] VR 577; Massey v Crown Life Insurance Co [1978] 1 WLR 676; Australian Mutual Provident Society v Allan 52 ALJR 407; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; BSA v Victorian WorkCover Authority [2018] VSCA 265; HumberstonevNorthern Timber Mills [1949] HCA 49
Judgment: Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr A Saunders | Slater & Gordon |
| For the Defendant | Mr W R Middleton QC with Mr D Churilov | Thomson Geer |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff while employed by Group Messengers Pty Ltd (“the employer”) on or about 5 February 2014 (“the accident”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
Relevant legal principles
3 The application for leave to bring proceedings for damages is brought pursuant to ss(a) of the definition of “serious injury” as that term is defined in s134AB(37) of the Act, namely:
“Serious injury’ means –
(a)permanent serious impairment or loss of a body function … .”
4 The impairment of body function relied upon is the lumbar spine.
5 In order to establish an entitlement to recover damages under the Act, apart from satisfying the definition of the phrase “serious injury”, by s134AB(1) of the Act, the relevant injury must have arisen out of or due to the nature of the plaintiff’s employment with the employer on or after 20 October 1999.[1] As set out in s134AB(37), the impairment of the body function must be permanent.[2]
[1]See Barwon Spinners Pty Ltd and Ors v Podolak (2005) 14 VR 622
[2](supra) at paragraph [33]
6 The plaintiff has the burden of proof on the application. The standard of proof is the balance of probabilities.
7 In relation to the physical injury which relates to the impairment of a body function, by s134AB(38)(b) and s1345AB(38)(c) of the Act, it is the consequences “of the bodily impairment” which produce the “pain and suffering”, which must be “serious” – that is, the plaintiff must prove, on the balance of probabilities, that the impairment or loss of body function results in relevant “consequences” that are “when judged by comparison with other cases in the range of possible impairments fairly described as being more than significant or marked, and as being at least very considerable”. This has been referred to as the “narrative test.” It has been held that this task is largely a question of impression or value judgement.[3]
[3]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 at 628; see also Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
8 In determining the application, the Court:
(a)must assess whether the injury is a “serious injury” as at the time the application is heard;[4]
(b)must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application.[5]
[4]Section 134AB(38)(j) of the Act
[5]See, generally, Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[26]
9 Section 134AB(38)(h) requires me to disregard all psychological or psychiatric consequences in determining an application which relates to a physical impairment.
10 In determining the seriousness of the “consequences” of the injury, the Court is required to assess the matter by reference to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made between the impairment arising from the injury the subject of this application, and the range of possible impairments or losses of body function.
11 The plaintiff relied on three affidavits, gave viva voce evidence and was cross-examined. Two of the plaintiff’s former workmates, Mr Scott Gillespie and Mr Martin Osborn, swore affidavits dated 1 May 2019 and 16 June 2019 respectively.
12 In addition, both parties relied upon medical reports and other materials which were contained within the Court Books tendered into evidence.[6] I have read all of the tendered material. In this judgment, I will refer only to the relevant parts of the tendered material.
[6]The Plaintiff’s Court Book (“PCB”) was marked as exhibit P1; the Defendant’s Court Book (“DCB”) was marked as exhibit D1, Volume 1 and Volume 2
13 In reaching my conclusions in relation to the application for leave to bring proceedings for damages, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[7] and Grech v Orica Australia Pty Ltd & Anor.[8]
[7]supra
[8](2006) 14 VR 602
The Plaintiff’s background
14 The plaintiff was born in August 1961 in Chile. He came to Australia in 1975.[9] He is now aged fifty-eight years. He went to school in Chile before coming to Australia with his family, with whom he settled in Melbourne. He went to secondary school at Prahran High School until the end of Year 12.
[9]Exhibit (Ex) P1, page (p) 32
15 After completing his schooling, the plaintiff worked for Telstra as a linesman. He then worked for about three years as a postman for Australia Post, after which he worked as a carpenter for about two years. After this he ran a giftware shop for a couple of years and later worked in nightclubs. He sold homewares at the Victoria Market for many years. He then started driving trucks for Civic Transport (“Civic”). He stayed in this role for about ten years.[10]
[10]Ex P1, p 33
16 In October 2012, he began working as a truck driver for the employer. The employer was a courier company which, to the best of the plaintiff’s understanding, traded under the business name of “Capital Transport”. In that job, the plaintiff gave evidence that he was required to use his own truck, but was under the direction and supervision of the employer. He did not work for anyone else and was required to wear the company clothes that he was given, with all of the company branding on it.
17 The plaintiff’s work for the employer involved heavy and repetitive lifting. In the summer months, he was required to transport heavy beer kegs and boxes full of drinks. He would pick up the kegs and boxes from BevChain in Somerton, where they would be loaded into his truck on pallets before being delivered to various hotels and liquor stores.
18 The plaintiff would unload the kegs and boxes from his truck using an electric pallet jack. He could only get the pallets a certain distance by using a pallet jack. He would unload the kegs and boxes off the pallets by hand and take them into the hotel or liquor store. He would then collect and load empty beer kegs onto the pallets and place them back into the truck. The empty kegs were heavy. He was working by himself without assistance. The work was very physical with a large amount of heavy and awkward lifting, bending and twisting. He would, at times, get “niggles” of back pain while performing this heavy work.[11]
[11]Ex P1, pp 33-34
The accident
19 The plaintiff described the accident in the following way:[12]
“On 5 February 2014 I was delivering kegs and boxes to various hotels for the company. I had a particularly heavy day where I had to not only deliver a full truck load of items but I also had to pick up a large number of heavy empty kegs. I picked up over 100 empty kegs from the hotels. I felt a niggle of pain in my lower back while doing this. I then had pain in my back overnight. The next day, the back pain became severe as I was driving my truck, I had to stop work early and go home.
On the morning of 7 February 2014 I went to see a GP, Dr Mark Sweet. I was given a medical certificate for time off work. My back pain continued and on 19 February 2014 I had a CT scan and x-rays of my lumbar spine.”
[12]Ex P1, p 34
20 Following these investigations, the plaintiff was referred for physiotherapy treatment. He began taking prescribed medication for the pain. He then came under the care of his usual general practitioner, Dr Andrew Haines. He was only able to return to work on light, part-time office duties, where he was mainly photocopying.[13]
[13]Ex P1, p 35
21 In May 2014, the plaintiff returned to work on truck-driving duties. He continued to take medication and to have physiotherapy treatment. He was referred to the Epworth Rehabilitation Centre and was examined by a physician, Dr Mithu Palit, on 5 June 2014.[14]
[14]Ex P1, p 35
22 The plaintiff again ceased work in about July 2014. He had further reviews with Dr Palit at the Epworth and an MRI scan of his lumbar spine on 26 August 2014. He completed a pain management program at the Epworth Hospital between August 2014 and October 2014.[15]
[15]Ex P1, p 35
23 In December 2014, he returned to work on light part-time duties in the office, working about twelve hours per week. He was mainly doing photocopying. During 2015, he increased his work hours to eighteen hours per week of light office duties, being three shifts per week of six hours per shift. He found that this was the limit of his tolerance for work. By the end of a six-hour shift, he found that he had increased pain in his back and numbness in his right leg.[16]
[16]Ex P1, p 36
24 During 2016, he had further reviews with Dr Palit and ongoing treatment from a medical practitioner by the name of Dr Chipperfield. He tried different types of medication for his pain. He was referred to a surgeon, Mr Michael Johnson. He completely stopped work in mid-2016. He had further scans of his back, including a further MRI scan in August 2016 and nerve conduction tests were performed on 17 November 2016.[17]
[17]Ex P1, pp 36-37
The Plaintiff’s evidence
25 The plaintiff swore three affidavits, the first dated 4 September 2017, the second dated 29 March 2019 and the third dated 14 June 2019. In summary, the relevant evidence of the plaintiff is as follows:
Experience of pain and treatment
(a)he is never free of back pain. The pain varies. It is made worse by standing for too long, sitting for too long, bending or twisting;[18]
[18]Ex P1, p 40B
(b)because of his back pain, the plaintiff lies down in bed for several hours each day. He does this to ease his pain;[19]
[19]Ex P1, p 40B
(c)since swearing his affidavit in 2017, he has had a nerve stimulator inserted into his back. Initially the stimulator considerably eased his pain. However, as time has gone by, the plaintiff’s back pain has returned;[20]
[20]Ex P1, p 40B
(d)since the insertion of the nerve stimulator he has constant low-back pain and experiences numbness in both legs;[21]
[21]Ex P1, p 40B
(e)the plaintiff has had suicidal thoughts when his pain levels have become severe. He struggles to see a future for himself. He continues to have suicidal thoughts at times;[22]
[22]Ex P1, p 39
(f)the plaintiff suffers from anxiety and depression. He takes anti-depressant medication on a daily basis and continues to receive treatment from a psychologist, Dr Chipperfield, on a monthly basis;[23]
[23]Ex P1, p 39
(g)he remains under the care of his general practitioner, Dr Andrew Haines, as well as Dr Palit and Dr Saleem Khan;[24]
[24]Ex P1, p 40C
Medication
(h) he is now taking Palexia, a synthetic narcotic, every day. He has had to increase the dose;[25]
[25]Ex P1, p 40B
Activities of daily living
(i) due to his back injury, the plaintiff is now restricted to the lighter chores around the home and garden. He avoids any activities around the home which involve heavy bending, lifting, or squatting;[26]
[26]Ex P1, p 30H
(j) he used to enjoy cooking but is now limited in what he can cook because he cannot stand for too long without increasing the pain;[27]
[27]Ex P1, p 38
(k) he has to be careful not to aggravate his back pain. If he pushes himself, he “pays for it later with increased back pain”;[28]
[28]Ex P1, p 38
(l) before suffering the back injury, the plaintiff enjoyed a very active family life. He enjoyed physical activities with his kids such as playing soccer and football and riding bikes together. The plaintiff now avoids these activities because he has tried them and it has caused his back pain to worsen;[29]
[29]Ex P1, p 39
Ability to work and loss of earning capacity
(m)despite trying to stay at work as long as he could, the plaintiff was eventually unable to cope and has ceased work entirely;[30]
[30]Ex P1, p 40D
(n) the plaintiff has not performed any work since mid-2016. He was unable to continue with the light office work for the employer, because he was suffering from severe flare ups of pain;[31]
[31]Ex P1, p 39
(o) during 2016, the plaintiff completed a short course, namely a Certificate IV in Training and Assessment, with a view to becoming a trainer of drivers. However, due to the plaintiff’s ongoing pain and restrictions, he was unable to perform this role and does not believe that he has any capacity for future employment. He continues to receive WorkCover weekly payments of compensation;[32]
[32]Ex P1, p 39
(p) before suffering the back injury, the plaintiff was earning a minimum of $2,000 gross per week as a truck driver for the employer, before expenses were deducted. He worked long hours and would normally earn somewhere between $2,000 and $3,000 gross per week as a truck driver;[33]
[33]Ex P1, p 40
Work arrangement between Plaintiff and the First Defendant
(q) the plaintiff was employed by the first defendant as an owner/driver. He had to work set hours from 7.00am to 5.00pm. He was required to wear the first defendant’s uniform and to work only for the first defendant. He was not able to work for anyone else. He had to do the jobs that were allocated to him;[34]
[34]Ex P1, p 40C
(r) it was the first defendant who determined what the plaintiff picked up for delivery as part of his duties. The first defendant had “complete control” over the plaintiff’s work and the manner in which he performed that work;[35]
[35]Ex P1, p 40C
(s) while at work, the plaintiff was provided with a hand held GPS so that the first defendant knew where the plaintiff was at all times;[36]
[36]Ex P1, p 40C
(t) the plaintiff signed a number of documents as part of his agreement with the first defendant. One of those documents was the Sub-Contractor Agreement (“the contract”). He also signed a minimum payment guarantee (“the guarantee”), which entitled him to a minimum salary in return for driving exclusively for the defendant. Over the period he worked for the first defendant, he signed a series of guarantees, as they would expire after a couple of months. If things were quiet, the first defendant would not offer a new round of guarantees, until the work picked up again;[37]
(u) when working for the first defendant, the plaintiff almost always had a guarantee. The drivers that drove the plaintiff’s trucks often had a guarantee too, but not always;[38]
[37]Ex P1, p 40EE
[38]Ex P1, p 40EE
Plaintiff’s rental of other trucks owned by him
(v) in addition to working as an owner/driver for the first defendant, the plaintiff also owned two other trucks. He was paid rent for the use of the trucks by the drivers. The rent was 40 per cent of the gross receipts of the truck. Those two trucks were also part of the first defendant’s fleet. In relation to those trucks, all the plaintiff had to do was look after the registration and maintenance. He had nothing to do with the day to day operations of those trucks. The individual drivers determined what they did with the truck that they were renting;[39]
[39]Ex P1, p 40C
(w) when he started working in the office on light duties with the first defendant, the plaintiff rented out the truck that he would have been driving. It is still being rented out at present;[40]
[40]Ex P1, p 40C
(x) the plaintiff presently owns a total of four trucks. Only two are still being driven.[41] He presently rents those trucks to drivers working for Yapo and Plantmark. He has no control over the drivers;[42]
[41]Ex P1, p 40C
[42]Ex P1, p 40DD
(y) he does not have to do much to rent the trucks out. The transport companies do all the administration and prepare the invoices. Plantmark sent through a copy of the invoice template which they wanted the plaintiff to use. The plaintiff just pays the drivers after he has taken out the agreed rental;[43]
[43]Ex P1, p 40DD
(z) of the other two trucks, one has not been driven since June 2018. The other is broken and will cost too much to fix. Both of these trucks are for sale, but the plaintiff has not been able to sell them;[44]
[44]Ex P1, p 40C
(aa) the plaintiff does not make any money out of renting his trucks. In 2018, the plaintiff bought another truck hoping to turn the profitability of the rental arrangement around. This did not occur. In his latest taxation return, the figure he receives for rent from the trucks is combined with his WorkCover payments;[45]
[45]Ex P1, pp40C-40D
(bb) in or about October 2012, while he was still working for Civic, he rented a truck to another driver, who began working for the defendant;[46]
[46]Ex P1, p 40BB
(cc) after this occurred, the plaintiff went to meet with the first defendant to discuss payment.[47] He wanted to be paid directly by the first defendant.[48] He could have let the driver be paid directly (for his work), and the driver would then pay the plaintiff. However, the plaintiff had been “burned by such arrangements in the past”. As a result, he insisted on being paid directly. In return for this arrangement, the plaintiff had to agree to pay the driver, as the first defendant would not split the payment of the rental and the driver’s payment. He was also required to take out WorkCover Insurance for the driver;[49]
(dd) in relation to this arrangement, the agreement between the plaintiff and the defendant only related to payment. The driver had his own agreement with the first defendant in relation to the work he received.[50] Because of his past experiences, the plaintiff was “happy to agree to almost any condition to get the security of direct payment”.[51]
[47]Ex P1, p 40BB
[48]Ex P1, p 40CC
[49]Ex P1, p 40CC
[50]Ex P1, p 40CC
[51]Ex P1, p 40DD
26 Under cross examination, the plaintiff gave the following evidence:
(a) he never broke the guarantee while he worked for the first defendant;[52]
[52]T17, lines (L) 19-25
(b) his total income in the 2011 financial year was $132,000. That income came from driving his truck while working at Civic.[53] His expenses that year left him with a net income in the vicinity of $22,500.[54] The nature of his income earning activity was described in that tax return as “road freight transport”.[55] The business address was the plaintiff’s residential address at 323 High Street, Ashburton;[56]
[53]T18, l 24-31
[54]T19, L1-11
[55]T19, L12-14
[56]T20, L2-5
(c) in the 2012 financial year his total income was declared as $182,527. After deduction of expenses, his net income was approximately $30,000. The total income was earned just by him. The nature of his income earning activity was described in that tax return as “truck hire service with driver”. He said that it was his accountant who used that description;[57]
[57]T20, L6-29
(d) in the 2013 financial year, his total income was $153,000. After expenses were deducted, his net income was approximately $40,000. The nature of his income earning activity was again described as “truck hire service with driver”. In that financial year he had other people driving his trucks;[58]
[58]T21, L2-15
(e) in the 2014 financial year, his total income was $162,000. After expenses were deducted, his net income was declared to be $58,000;[59]
[59]T21, L18-21
(f) in the 2015 financial year, which was the year after his injury occurred, the plaintiff’s total income was $121,412. This sum included his WorkCover payments. His expenses that year were $120,000. He said that this included repairing and servicing the trucks;[60]
[60]T22, L5-17
(g) in the 2016 financial year, a total income of $166,000 was declared. That included WorkCover payments and income from the rental of the trucks. The WorkCover payments that year amounted to $36,829;[61]
[61]T22, L18-26
(h) in the 2017 financial year, the total income was $210,725. That figure included WorkCover payments and income from the rental of trucks. The net income was said to be $11,800;[62]
[62]T23, L4-18
(i) in the 2017 financial year, the plaintiff’s deductions included $77,959 for “Contractors.” He denied that this sum was for wages he was paying the other truck drivers. He said that he pays this money to the other drivers “because I get paid … That’s their money after I take in my 40%”. When asked if “It’s your agreement with [the truck drivers] that they will get the 60%,” he replied “Because the company pay me, yes”;
(j) when queried about the fact that one of the deductions is “WorkCover, $1022,” the plaintiff said “Messenger said if the money goes straight to the drivers I don’t have to pay WorkCover, but because I want the money I’ll have to provide WorkCover”;[63]
[63]T24, L8-20
(k) in the 2018 financial year, the total income was declared to be $297,903. The net income after deduction of expenses was $13,653. Contractors were noted to be paid $140,000. The WorkCover payment was $4,686 in this financial year;[64]
[64]T39-40
(l) he agreed that clause 20 in the contract, obliged him to provide “workers compensation insurance for any person who will at any time be employed by the subcontractor …”;[65]
[65]T31-32
(m) when it was put to him that the agreement he had with the employer allowed him to delegate work if he wanted to (subject to certain conditions), the plaintiff replied “As I understood [it] I wasn’t allowed to …”;[66]
[66]T32, L18-32
(n) he agreed that the payments in relation to the drivers that he had driving his trucks went into a Commonwealth Bank account. The weekly payments of compensation went into a Westpac account;[67]
[67]T35-36
(o) it was put to the plaintiff that because he was earning money from others who were driving his trucks, the declaration he made on his medical certificates of incapacity were false. The plaintiff denied this. He said “I’m not working. This says from my employment. I haven’t been working … Those truck rental will … keep going. It’s just like any other investment … If I die tomorrow they can keep doing it and then my kids will receive it. I’m not working”;[68]
[68]T36-37
(p) he said that when the trucks require servicing “the mechanic does the work and takes the money out of my credit card”. He said that he does not have a home office. He takes no steps to check that the other drivers have completed their work with the first defendant. When asked how he knows whether he’s getting his full entitlement to the money earned by the drivers, he said “All I know is the money that comes in, that’s all … I’ve got no idea what the drivers are doing…”;[69]
[69]T38-39
(q) when queried about why when he paid the drivers, he at times described the payment as “salary,” he said “It’s their money, their percentage over whatever Messenger [paid]”;[70]
[70]T41-42
(r) he agreed that on his original application (in March 2011) for the WorkCover Insurance for the other truck drivers, in response to the question “Why are you making this application?” he ticked “Employing or intending to employ workers.” He said that when he filled in the form “I talked to the people [at] WorkCover I didn’t know how to fill it out … I thought I wouldn’t get it if I didn’t fill it out like that”;[71]
[71]T42-43
(s) he agreed that by filling out the form in this way, he had represented the drivers to the insurance company as being workers. He agreed that this occurred for a number of years. He also agreed that when he took out the policy, he was working for Civic;[72]
[72]T44, L4-16
(t) he acknowledged that on the form, he described 323 High Street, Ashburton as the location of his workplace. At the time he estimated that the cost of labour was $29,000. He said “that’s the money…the percentage”;[73]
[73]T44, L17-24
(u) when he was shown an email where he had asked the insurance agent to “add another driver to my policy,” it was asserted that he had told the agent that this driver would generate about another $11,000 in income. To this proposition, the plaintiff replied, “That’s their income.” He went on: “At the time I didn’t even have a driver. I was hoping that I’d get somebody to rent my truck…so I predicted that’s what the…person will get renting my truck.” When it was put to him that he was “calculating …their income,” he replied “The percentage, yes”;[74]
[74]T45-46
(v) when he was showed an email where he had said to the insurance agent “…I have one person starting and I’ll have a second worker, but the company I do most of the work for provides Workcover for him…” he said “Because as I said I had to do it for the WorkCover. I thought that’s what I needed to put down…”;[75]
[75]T47, L1-19
(w) he agreed that in 2009, he had a brief episode of low back pain but no major problems;[76]
[76]T50-51
(x) he agreed that in relation to the accident, on his claim form he said that he noticed the pain in his back on 6 February, 2014, being the day after the accident. He clarified that on 5 February 2014, “I had some pain but then it went away and then the next day it got more intense. That’s when I had to stop working”;[77]
[77]T51, L10-28
(y) he denied that he was told by Mr Peter Wilde that his back condition was “degenerative in nature”;[78]
[78]T51-52
(z) he agreed that when the nerve stimulator was inserted, he initially had good pain relief for the balance of 2018. His medications were also able to be decreased. He said that is not the case today. The initial benefits of this treatment deteriorated from January 2019;[79]
[79]T52-53
(aa) he had an unrelated problem with his left elbow that required surgery;[80]
[80]T53, L11-27
(bb) in terms of his activities of daily living, he agreed that he is self sufficient in attending to his hygiene. He lives with his parents. His father cooks at home. His mother does his washing. He watches Netflix and other streaming services and plays games on his iPad;[81]
[81]T54, L9-18
(cc) as far as attending to his rental activities, he spends about 10-15 minutes per week distributing money to his drivers. Up until two weeks before the trial, he had three drivers. Now he only has one because one of his other two trucks had an accident. He sold the other truck. He is hoping that he will get an insurance payout for the truck that was in the accident. He will “possibly” replace that truck;[82]
[82]T54-55
(dd) in terms of retraining, he has done a Certificate IV in training and assessment to enable him to be a trainer of truck drivers. He has not tried to find any work in that field. He said that this was “because of my capacity…I just couldn’t keep doing it. I kept getting flare ups”;[83]
[83]T56, L13-20
(ee) he denied that he makes money from renting out his trucks: “If you look at my figures, no, I don’t…the amount that I got left over is actually part of my Workcover…It’s been running at a loss”;[84]
[84]T57, L4-18
(ff) regarding medication, he is only on Palexia and Cymbalta now. Under re-examination he said that his dose of Palexia has recently increased from 100mg to 150mg slow release, per day. This is because the nerve stimulator doesn’t seem to be working too well. [85] He is not having any physical therapy. He has not been referred for any further treatment by his GP. His specialist has recommended that he may need to change the nerve stimulator that is in his spine;[86]
[85]T82, L13-19
[86]T57-58
(gg) regarding the options for suitable employment that were postulated by AMS Consulting Group, the plaintiff gave the following answers under cross examination: Supervisor depot and fleet operations “I’ve got the knowledge and skill, but not the capacity”[87] The plaintiff also said that his pain would interfere with his mental ability to do the job.[88] In re-examination, he said that follow up was a big problem for him, because he was off sick so often and therefore he did not have the capacity to follow through on particular jobs.[89] Sales Assistant “…you say you couldn’t do it?---Yes.” Storage Consultant “…a medical board …asked me the same questions…they give me example of what I had to do in those jobs that they worked out that I couldn’t do it. It’s not me saying it. They said it…”[90] Trainer of Truck drivers “…Again you say that you couldn’t do that job?---No. I tried before with the defendant.” Showroom Customer Service “…Couldn’t do that either?---No. Do you know what it means, what the job entails?---Yeah, it needs standing up, bending down, lifting, and I cannot do any of those …”[91]
[87]T60, L4-13
[88]T62, L4-8
[89]T80, L19-26
[90]T63, lines 7-15
[91]T63-64
(hh) he agreed that Yapo have an office at his sister’s house. He spends every day there at present. He denied doing any work for Yapo. He is presently living with his sister because of domestic issues with his parents.[92] His brother operates Yapo transport;[93]
[92]T65-66
[93]T68-69
(ii) he is reimbursed by Yapo for tolls incurred by the truck drivers.[94] The companies pay that charge separately;[95]
[94]T69, L5-12
[95]T71-72
(jj) he agreed that it was “possible” that between 1 July 2018 and May 2019, he had received $345,000 from Yapo and Plantmark;[96]
[96]T72, L15-19
(kk) he acknowledged that on his BAS statements he answered a question “Is the taxpayer carrying on a business?” and the answer to that question was “Y” for “yes.” He said “It’s a trucks rental business. It’s truck rental”;[97]
[97]T74, L1-8
(ll) he said that while receiving weekly payments, he had told CGU, the insurance agent “over the phone”, that he had a truck rental business. He said he was asked “Are you actually working” and he replied “No I’m not working there”;[98]
[98]T75, L6-15
(mm) he denied that despite the guarantee, he could have worked for other companies if he had found the work: “How can I go and – I’m working for them 6.00 till 4.00 every day…I used to start work …[in] Somerton, be there by 7 o’clock. Then I finish at Portsea about 6.00, 7 o’clock…I was working every day. I was long hours. Physically, I could not look for any work”;[99]
[99]T76-77
(nn) he was usually off the guarantee in January and February.[100] He still had enough work with the defendant because he was doing the beer run;[101]
(oo) he denied that he had been running a business since at least 2011: “I was driving my own truck there. I was the only driver…” He agreed that he “… started renting my truck that year”.[102]
[100]T77, L5-23
[101]T77-78
[102]T79-80
Evidence of the Plaintiff’s co-workers
27 The plaintiff also relied upon two affidavits from his former co-workers. The first affidavit was sworn by Mr Scott Gillespie on1 May 2019. The second was sworn by Mr Martin Osborn on 14 June 2019.
28 Mr Gillespie deposed to the following matters:
(a) he was a driver liaison manager while the plaintiff worked for the first defendant. His role was to communicate with the drivers and to work with the operations area of the business;[103]
[103]Ex P1, p40F
(b) the plaintiff was one of the drivers and regarded as very reliable. He recalls the plaintiff suffering a back injury while at work. He recalls that the plaintiff tried to keep driving his truck but was unable to do so due to back pain;[104]
[104]Ex P1, p 40F
(c) Mr Gillespie recalls the plaintiff’s WorkCover claim being accepted by the first defendant. Due to the fact that he could not work as a truck driver, Mr Gillespie was instructed to give the plaintiff office-based work;[105]
[105]Ex P1, p 40F
(d) after starting on office duties, the plaintiff was “on and off work due to his back pain.” It was obvious to Mr Gillespie that the plaintiff had a serious back problem: “He would often be pale and almost look sick. He was struggling to move around…” The plaintiff was only able to work part time hours. Mr Gillespie tried to give the plaintiff filing and photocopying duties. He did a bit of data entry as well. He said that he plaintiff had to use a special “sit/stand desk. He really struggled.” He said that the plaintiff was “not one to complain, he would put in a really good effort …”;[106]
(e) he recalls that there were days when he had to take the plaintiff home halfway through his shift because he was in too much pain. “It was almost to the point where Claudio could not stand up because of the pain … there were days when Claudio’s back pain was so bad that he would text or telephone and say that he was unable to come in to work.”[107]
[106]Ex P1, pp40F-40G
[107]Ex P1, p40G
29 Mr Osborn deposed to the following matters:
(a) he is a truck driver who presently works for Yapo Transport. He rents a truck from the plaintiff. He does not work for the plaintiff, he just rents a truck from him. He said “I do not have much to do with [the plaintiff]. I might not speak to him for weeks at a time”;[108]
[108]Ex P1, p 40J
(b) he works for Yapo more or less full time. Yapo tells him what to do and when to do it. This is usually by text message. The plaintiff has no involvement at all. He does not have any control over what jobs Mr Osborn does, how many jobs he does, who he works for, when he works or whether he works at all: “That is all between me and Yapo”;[109]
[109]Ex P1, p 40J
(c) if Mr Osborn wanted to, he could go and work for a different company. If he wants a day off, he has to arrange it with Yapo. He would not ring the plaintiff to tell him about this: “It has got nothing to do with him.” When he does have time off, the plaintiff does not arrange for a replacement driver. The truck sits at Mr Osborn’s place. Yapo simply reallocates the work;[110]
(d) he is paid via the plaintiff. “… that is the arrangement. It is common in the transport industry. Trucking companies will not split payments between driver and truck owners; it’s just the way it works.” This arrangement suits Mr Osborn: “… it is easier if I get my money for driving from [the plaintiff]. That way, I do not have to worry about paying him for the rental.”[111]
[110]Ex P1, p 40J
[111]Ex P1, p 40K
The medical evidence
30 There were numerous medical reports contained in the tendered material. Both sides filed reports from medico-legal experts. A precis of the relevant medical material is set out below.
The Plaintiff’s medical evidence
31 Dr Andrew Haines, the plaintiff’s general practitioner, provided three reports about the plaintiff. In the most recent report, dated 22 March 2019, Dr Haines expressed the view that the plaintiff has been “severely restricted … for most of the time since the injury 5 years ago”. He said that the plaintiff suffers from “ongoing intermittent moderate to severe mid to lower back pain with associated referred pain to the whole of his right leg and left thigh and calf”. He noted that the diagnosis is “Multilevel degenerative disc disease”. [112] In an earlier report, Dr Haines stated that he plaintiff had had “a previous brief episode of low back pain in 2009 but had no major problem until he was required to move a lot of empty beer kegs over a few days in February 2014”. [113]
[112]Ex P1, p 50
[113]Dated 14 August 2016. See Ex P1, p 47
32 Dr Haines said that “the pain is worse with sitting or standing but improves with lying and with some stretching exercises.” He said that the plaintiff’s mobility is “significantly restricted which greatly limits his ability to work or enjoy recreational activities. Specifically, he is severely restricted in bending, stooping, twisting, pushing, pulling, lifting, overhead activities, kneeling, squatting or crouching. He is also unable to sit for more than 10-20 minutes at a time or walk and stand for prolonged periods of time. His back pain is also exacerbated by walking up or down slopes or using ladders.” Dr Haines commented that the plaintiff’s social, domestic and recreational activities “are all significantly restricted by painful flare ups. In particular, he is unable to do housework, dance or play soccer and basketball with his children … .”[114]
[114]Ex P1, p 50-51
33 As to the plaintiff’s capacity for employment, Dr Haines was of the opinion that the plaintiff “is permanently unable to return to his pre-injury work duties. Unfortunately he also is unable to return to light duties such as office work (both sitting and using a stand up desk), driver instruction and vehicle checking. With all these duties he had regular rests and did no lifting but each attempt triggered exacerbations of his back and leg pain and caused him to need to take increasing amounts of time off. I believe that this situation will continue for the foreseeable future.”[115]
[115]Ex P1, p 50
34 Dr Saleem Khan, consultant physician in rehabilitation and pain medicine, provided a report dated 8 March 2019 concerning Dr Khan’s treatment of the plaintiff and his opinion as to the plaintiff’s diagnosis, present restrictions and prognosis. Dr Khan diagnosed the plaintiff as suffering from “Axial somatic (nerve) pain and neuropathic leg pain due to [a] work injury in February 2014”. He said that the plaintiff continues to have ongoing pain symptoms (4/10 average severity) despite his peripheral neuromodulation. He noted that the plaintiff “reports persistent low back pain and right buttock and left leg pain”. the plaintiff is reportedly “able to manage his pain by activity modification, by taking his pain medication and by the use of the neuromodulator”. Dr Khan confirmed that the plaintiff is precluded from undertaking any activities which involve bending, twisting, stooping, pushing, pulling, or lifting, overhead activities, kneeling, squatting or crouching, prolonged sitting, walking or standing, walking up or down inclines and using steps or ladders. He said that all of these activities “specifically exacerbate his chronic pain issues. This situation is likely to continue for the foreseeable future.”[116]
[116]Ex P1, p 63
35 As to the plaintiff’s work capacity, Dr Khan noted “his sitting tolerance is 10 minutes, standing tolerance 30 minutes, and walking tolerance 30 minutes. Even when he trialled a standing desk, he found that his pain would subsequently exacerbate which made ongoing work unsustainable. His low tolerances mean that he would not be suitable for any alternative work duties. This situation is likely to continue for the foreseeable future … .[117] He tried hard to return to work but has now finally accepted that if he pushes himself beyond his usual personal and domestic activities of daily living that this leads to painful exacerbations that disable him for days at a time (usually requires bed rest) … I don’t think he will ever regain useful work capacity.”[118]
[117]Ex P1, p 63
[118]Ex P1, p 64
36 Mr Mohammed Awad, neurosurgeon, provided a medico-legal report on behalf of the plaintiff dated 1 March 2019. In Mr Awad’s opinion, the plaintiff presented with “aggravation of lumbar spondylosis…[and that the plaintiff’s] employment remains a significant contributing factor to his ongoing pain, disability and requirement for treatment”.[119] He thought that the plaintiff will “continue to suffer the consequences of this injury…in the form of pain and disability into the foreseeable future”.[120]
[119]Ex P1, p 68
[120]Ex P1, p 68
37 As to the plaintiff’s present work capacity, Mr Awad was of the opinion that “In his current state [the plaintiff] does not have the physical capacity to undertake his pre-injury employment. He does in theory have some physical capacity to undertake extremely sedentary work several hours per day, several days per week if a suitable job was available. In practice, taking into account his age, education, training, skills, work experience as well as the nature and severity of his work-related lumbar spine condition, it would be extremely unlikely that he would be able to procure any suitable employment and if he did it would be extremely unlikely that he would be able to carry this out in a reliable and consistent fashion.”[121]
[121]Ex P1, p 68
38 Dr Joseph Slesenger, a specialist occupational physician, provided two reports, the first dated 11 February 2019 and the second dated 15 May 2019. Dr Slesenger was of the view that the plaintiff had suffered a “mechanical injury to the thoracolumbar spine” and also sustained an “aggravation of degenerative disease of the lumbar spine”.[122] Dr Slesenger thought that there was a degree of psychological impairment, though this did not impact upon the substance of his diagnosis that the plaintiff is presently suffering from the consequences of an injury which is substantially organic in nature. Dr Slesenger also acknowledged that this matter is outside his area of expertise.[123]
[122]Ex P1, p 78
[123]Ex P1, p 78
39 Dr Slesenger thought that as a consequence of his injury, the plaintiff should be subject to the following restrictions:[124]
[124]Ex P1, p 80
“Avoid push, pull, carry or lift over 5kg;
Avoid repetitive bending or twisting
Avoid extremes of thoracolumbar spinal movements
Avoid sustained static postures
Avoid exposure to whole body vibration
Limited walking and standing
Avoid use of steps and ladders.”
40 Dr Slesenger expressed the opinion that the plaintiff cannot return to his pre-injury duties, due to the “manual handling and the postural requirements of his pre-injury role”.[125] He said “Taking into consideration [the plaintiff’s] age … his current residential location…his past occupational experience, his limited computer skills,, his qualifications, the variable and unpredictable nature of his symptoms (and the associated functional limitations), I do not envisage him attending work, performing suitable alternative duties on a consistent and reliable basis.”[126]
[125]Ex P1, p 80
[126]Ex P1, p 81
41 In his second report, Dr Slesenger considered the roles which had been suggested by the defendants as potentially constituting suitable employment for the plaintiff, namely Depot and Fleet Operations, Sales Assistant, Storage Consultant, Trainer (Truck Driver) and Customer Service Officer. Given the restrictions to which the plaintiff is subject, Dr Slesenger advised against the plaintiff returning to work in any of these roles.[127]
[127]Ex P1, p 82
The Defendants’ medical reports
42 Dr P D Clark, an occupational physician, provided one medico-legal report on behalf of the defendants, dated 15 May 2014. At that time, Dr Clark considered that the plaintiff suffered from “mechanical back pain”, caused by “manual handling in the course of his normal duties …”.[128] He thought that the plaintiff should “avoid loads which require breaking down of pallets or other loads which require manual handling”.[129] He noted that the plaintiff’s “functional capacity is restricted by recurrent low back pain”.[130] Despite this, he said “I consider he is capable of resuming normal driving duties now”.[131]
[128]Ex D1, p 10
[129]Ex D1, p 12
[130]Ex D1, p 14
[131]Ex D1, p 12
43 Dr Umberto Boffa, a consultant occupational and environmental physician, provided a report dated 20 January 2016 on behalf of the defendants. Dr Boffa thought that the plaintiff was suffering from “mechanical low back pain and right sided nerve root irritation without radiculopathy…caused by manual handling in the course of his duties …”.[132] At that time, Dr Boffa thought that the plaintiff was “not fit for pre injury duties”.[133] He said that the plaintiff would have a capacity for “full time duties that allow change of posture and avoid repetitive bending, twisting, pushing, pulling, lifting and carrying more than 10kg”.[134]
[132]Ex D1, p 20
[133]Ex D1, p 21
[134]Ex D1, p 21
44 Mr Michael Dooley, orthopaedic surgeon, provided two medico-legal reports on behalf of the defendants, the first dated 19 March 2019 and the second dated 3 May 2019. In the first report, Mr Dooley said that he thought the plaintiff had sustained a “soft tissue injury to his lumbar spine that involved some aggravation of his underlying degenerative disc disease”.[135] However, he said that “the constancy and intensity of his ongoing pain and described disability have been greater than one would expect to see for his organic condition”. On that basis, Mr Dooley believed that the plaintiff “has had a psychological reaction to his situation and that this reaction significantly influences his ongoing symptoms”.[136] Mr Dooley cited as evidence for his opinion, the fact that the plaintiff has not been provided with lasting improvement in his symptoms from the peripheral nerve stimulator.[137] I note that Mr Dooley is the only medical expert to have expressed this view. I also note Dr Khan’s opinion which directly contradicts this view, namely that the plaintiff will require “ongoing monitoring of his neuromodulation device. Lead migration, breakage and neurostimulator malfunction can occur and surgical intervention is usually required in these instances.”[138] Thus I reject Mr Dooley’s opinion to the extent that he concludes that the plaintiff’s pain does not have a substantial organic basis.
[135]Ex D1, p 24
[136]Ex D1, p 24
[137]Ex D1, p 24
[138]Ex P1, p 64
45 As to the plaintiff’s present work capacity, Mr Dooley said that “Mr Moya would not be able to carry out regular heavy physical work or work that involved a lot of bending, lifting and manoeuvring. From an orthopaedic point of view, he has a physical capacity to carry out light physical work and clerical duties.”[139] Upon a review of the vocational assessment report of AMS Consulting dated 1 May 2019, Mr Dooley thought that the plaintiff would have the physical capacity to carry out the five potentially suitable roles outlined therein. He qualified this opinion by stating “As noted, he would need to be able to alter his posture in terms of standing, sitting etc.”[140]
[139]Ex D1, p 26
[140]Ex D1, p 28
Expert evidence in relation to suitable employment
The plaintiff’s employment expert
46 A Vocational Assessment Report dated 14 March 2019, was provided by Mr Geoff Oliver, an Occupational Rehabilitation Consultant on behalf of the plaintiff. Mr Oliver considered the plaintiff’s capacity to return to pre-injury duties and also his fitness for suitable employment. He concluded that that the plaintiff has “no current capacity for employment.”[141] He expressed this opinion in respect of both pre-injury employment and alternative employment in the future. Similarly, he thought that the plaintiff had no capacity to successfully undertake and complete any occupational retraining courses.[142]
[141]Ex P1, p 105
[142]Ex P1, p 107
The defendants’ employment expert
47 The defendants relied upon a report dated 1 May 2019 from Mr Nicholas Janides, a Vocational and Occupational Rehabilitation Consultant of AMS Consulting Group.
48 It is notable that in making his assessment, Mr Janides acted upon the medical opinion of Mr Dooley that “From an orthopaedic point of view, [the plaintiff] has a physical capacity to carry out light physical work and clerical duties.” He did not make reference to the opinions contained in any other medical reports.
49 On this basis, Mr Janides considered that there were five employment options that may constitute suitable employment for the plaintiff, namely Depot Supervisor – Truck/Freight Operations; Sales Assistant – currency booth/environment; Storage Consultant; trainer – Truck Driving and Showroom attendant – kitchen/bathrooms.[143] In coming to this conclusion, Mr Janides acted upon restrictions that were inconsistent with those which the evidence reflects were recommended by the plaintiff’s treaters.[144] In addition, Mr Janides did not appear to be aware of the fact that one of the plaintiff’s restrictions is the frequent flare ups of pain which cause him to have to take time off work. The fact that this would necessarily cause unreliability as a worker was not referred to.
[143]Ex D1, p35
[144]Ex D1, p32
50 Dr Slesenger was asked to review the five roles which were put forward by Mr Janides as potentially constituting suitable employment. In a report dated 15 May 2019, Dr Slesenger expressed the opinion that each of the proposed roles was unsuitable for the plaintiff.[145]
[145]Ex P1, p 82
The Issues
The plaintiff’s credit
51 The plaintiff was cross examined at length about the details of the financial arrangement which he had with the first defendant insofar as that related to his truck rental to other drivers and the payment of various charges in respect of those drivers and the trucks. The plaintiff was also pressed about the nature of his truck rental arrangements and about whether this in fact constituted the operation of a separate “business”.
52 During this cross examination, the plaintiff gave consistent and credible answers. Having had the benefit of observing the plaintiff while he was giving evidence to the Court, I formed the view that he was a co-operative witness who appeared to be doing his best to give accurate responses to the questions asked of him. During cross-examination, he gave his evidence openly and without embellishment. He made concessions which were adverse to his interests where necessary.
53 The plaintiff’s credit was not seriously challenged in relation to the extent of his pain. The plaintiff’s account of his pain and the restrictions from which he suffers as a consequence, were corroborated by one of his former co-workers and the various treating doctors who he has been seeing for many years.
54 After a consideration of all of the evidence, particularly the evidence of the plaintiff and the corroboration of it which was provided by the affidavits from his former co-workers, I consider that he was a credible witness in the sense of being a truthful person. At no stage did I gain the impression that he was attempting to mislead the Court or to exaggerate his symptoms or lack of work capacity.
Stoic plaintiff
55 I also formed the view that the plaintiff is extremely stoic in relation to his condition. An analysis of the evidence demonstrates that he has suffered from constant pain since early 2014. He has endured extensive medical treatment including the insertion of a spinal nerve stimulator.
56 He has made commendable attempts to return to work, even though he was unable to avoid activities which cause him pain. He has also completed a qualification in truck driver training, in the hope that he would be able to participate in this type of work with the employer. Unfortunately he found these activities too demanding.
57 During cross examination, the plaintiff was subjected to some criticism of his evidence that he would be unable to perform the duties in the roles that had been identified as potentially constituting suitable employment. In particular, he was questioned closely about why he had completed the Certificate IV training course, if he now said that he was unable to perform those types of duties.
58 As referred to above, plaintiff’s evidence about this was to the effect that despite his hopes, he found this role and its ongoing demands too onerous. This evidence is corroborated by the content of Dr Khan’s report, which notes that when the plaintiff does push himself “this leads to painful exacerbations that disable him for days at a time (usually requires bed rest).”[146]
[146]Ex P1, p 64
59 The fact that after the accident, the plaintiff was prepared to keep working for a time and to engage in retraining, is not a matter that tells against the granting of his application. To use the words of Nettle JA in Dwyer v Calco Timbers Pty Ltd (No 2),[147] “it would be unfortunate, and in [our] view wrongheaded, if…such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.” This comment is apposite in this case. The criticism of the plaintiff ought be rejected.
[147][2008] VSCA 260 at [3]
Compensable Injury
60 The details and occurrence of the injury are not in dispute.
61 Having considered all of the medical evidence from the plaintiff’s treating doctors as well as the medico-legal experts on both sides, I am satisfied that as a result of the accident, the plaintiff suffers from the consequences of a soft tissue injury to his thoracolumbar spine, which aggravated previously asymptomatic disc degeneration.
62 The weight of the evidence satisfies me that the injury is organic in nature. Senior Counsel for the defendants accepted that it was open to the Court to find that the pain and suffering consequences presently experienced by the plaintiff as a result of the accident would satisfy the definition of a “serious injury” for the purposes of the Act.[148] Implicit in this concession is an acknowledgment that the plaintiff’s injury has a substantial organic basis.
[148]T100, L14-19
Is the injury permanent for the purposes of the Act?
63 Having considered the relevant medical reports, in particular the reports from Dr Haines,[149] Dr Khan,[150] Dr Awad[151] and Dr Slesenger,[152] I find that the plaintiff is likely to suffer from the injury he sustained in the accident for the foreseeable future. Given this, I find that the plaintiff’s injury is permanent for the purposes of the Act.
Is the plaintiff a worker for the purposes of the Act?
[149]Ex P1, p 50
[150]Ex P1, p 64
[151]Ex P1, p 69
[152]Ex P1, p 80
64 The defendants’ main argument in this case centred on an assertion that the plaintiff is not a “worker” for the purposes of s.134AB(1) of the Act.
65 Section 5 of the Act defines the term “worker” to mean:
“… an individual –
(a) who –
(i) performs work for an employer; or
(ii) agrees with an employer to perform work –
at the employers direction, instruction or request, whether under a contract of employment (whether express, implied, oral or in writing) or otherwise; or
(b) who is a deemed worker under this Act.”
66 By s7A(1) of the Act, an individual (referred to as an owner-driver) is deemed to be a worker if under a contract (not being a contract of employment) entered into by the individual with another person (principal), the owner-driver drives a motor vehicle, of which he is the owner, mainly for the purposes of providing transport services to the principal.
67 However, by s7A(2), s7A(1) does not apply in respect of an individual who is an owner-driver, if the Authority determines that in providing transport services to the principal, the owner-driver is carrying on an independent trade or business.
68 By letter dated 4 June 2019,[153] the defendants’ insurance agent determined that in the course of his work for the first defendant, the plaintiff was carrying on an independent trade or business. As such, the Authority determined that he is not a “deemed worker” under the Act.
[153]Ex D1, pp234-237
69 By s7A(5) of the Act, the term “transport services” is defined to mean “the service of transporting and delivering goods.”
70 Counsel for the plaintiff submitted that notwithstanding this determination, it is open to the Court to revisit the question of whether the plaintiff is a “deemed worker” for the purposes of s7A(1) of the Act.
71 Having considered this submission, I have concluded that the wording of the Act is such that once a determination as to this matter has been made by the Authority, there is no power vested in the Court to revisit this question.
72 However, that is not the end of the consideration of whether or not the plaintiff is a worker for the purposes of the Act. It is still necessary for me to consider the provisions of s5(a) of the Act.
Was the relationship between the plaintiff and the first defendant one of employer and employee?
73 Considerations relevant to the determination of this question are well understood. In a joint judgment[154] in Elazac Pty Ltd v Linton Shirreff,[155] the Court stated:
[154]per Redlich and Mandie JJA, Beach AJA
[155][2011] VSCA 405, at [30]
“Relevant factors in determining the nature of the relationship between a person who engages another to perform work and the person so engaged include:
(a)the degree of control which the former can exercise over the latter;
(b)whether what is being supplied is the work and skill of a person (contract of service) or the supply of equipment or its performance (contract for services);
(c)whether or not the person engaged can set their own hours of work;
(d)the method of payment (and in particular, whether payment is determined by hours of service or output or production);
(e)whether or not income tax is deducted and holiday pay or long service leave or superannuation paid;
(f)whether or not the person engaged employees and/or conducts his business in partnership;
(g)whether or not there is a power to delegate (send someone else to perform the work); and
(h)whether or not the person engaged considered the relationship as one of independent contractor.”
74 The plaintiff submitted that the overwhelming preponderance of evidence points to the arrangement between the plaintiff and defendant as being one of employee and employer. In particular, the following evidence was highlighted:
(a) the plaintiff was under the direction and supervision of the first defendant;[156]
[156]Ex P1, p33
(b) the plaintiff had to do the jobs which were allocated to him and the first defendant determined what he was picking up and delivering;[157]
[157]Ex P1, p40C
(c) with little exception, the terms of the plaintiff’s work was governed by the guarantee,[158] which included the following:
[158]Ex P1, p40NN
(i) set hours;
(ii) the necessity for the plaintiff to log onto his handheld GPS (known as a PDA) and to make voice contact with the first defendant’s operator before 7am in the morning;
(iii) a mandatory requirement for the plaintiff to arrive on site before the designated booking time;
(iv) a mandatory requirement to call the first defendant to notify it of any available space once the plaintiff had picked up or dropped off a delivery;
(v) a specific requirement for the plaintiff to follow the instructions of the first defendant’s freight controllers;
(vi) a specific requirement for the plaintiff to update his status with the first defendant’s operator;
(vii) the necessity for the plaintiff to give two weeks’ notice to the first defendant if he wanted to have a day off;
(viii) a requirement to adhere to job times that were allocated the day prior to the performance of the work;
(d) a requirement to use a handheld GPS device (known as a PDA);
(e) a requirement to wear the first defendant’s uniform;[159]
[159]Ex P1, p33
(f) the first defendant would invoice for the jobs which the plaintiff performed;
(g) work was performed pursuant to an agreed daily rate;[160]
[160]Ex P1, pp40EE and 40MM
(h) the plaintiff considered the relationship between himself and the first defendant as one of employer and employee. This is evidenced by the fact that the plaintiff did not offer his services as an owner driver to any other entity whilst engaged by the first defendant, by the fact that the plaintiff did not delegate the work he was to perform for the first defendant to a third person and by the fact that the plaintiff made a worker’s compensation claim against the first defendant;[161]
(i) the first defendant also considered that the plaintiff was an employee. This is evidenced by the fact that the first defendant accepted the plaintiff’s claim and offered him a return to work program involving the provision of light duties, from early 2014 until mid 2016.[162] The plaintiff submits that the matters contained in the affidavit of Courtney Bow do not explain the basis upon which the first defendant changed its initial assessment of the plaintiff’s status as an employee.
[161]See for example Ex P1, p11
[162]See for example Ex P1, p36 and pp40F-40G
75 In response, the defendants submitted that the plaintiff has failed to discharge his onus to prove on balance that he was a worker (either common law or deemed) at the relevant time.[163]
[163]Defendants’ written submission paragraph 2
76 The defendants argued that the “central plank of the Plaintiff’s case is that prior to signing the Sub-Contractor Agreement with the First Defendant…and subsequently, he was an owner/driver who performed carriage services utilising his truck, whilst simultaneously operating a separate truck rental business relating to the other trucks owned by him and provided to other persons/drivers.”[164]
[164]Defendants’ written submission paragraph 3
77 It was submitted that the weight of the evidence demonstrates that this is a “mischaracterization of the plaintiff’s road freight transport business, and one which is divorced from reality.” In particular, it was said that the plaintiff “seeks to artificially hive off an integral component of the one, indivisible business structure, which has existed over many years.” Lastly, it was said that the “contemporaneous objective evidence…contradicts the plaintiff’s assertion of being pain “rent” for the use of his trucks by other persons/drivers.”[165]
[165]Defendants’ written submission paragraph 4
78 The defendants submitted that “the nature, as well as the structure of the plaintiff’s business leading up to the commencement of the Sub-Contractor Agreement with the first defendant…informs the Court of the true nature of the plaintiff’s business in the relevant period from 12 October 2012 to 5 February 2014…”,[166] viz:
[166]Defendants’ written submission paragraph 6
(a) in the plaintiff’s tax returns for the financial years ending 30 June 2011 and 30 June 2012, the plaintiff’s main business activity is described as “Road Freight Transport”;[167]
[167]Defendants’ written submission paragraph 7
(b) the same tax returns list the plaintiff’s home address as the address of the business, records gross and net business income and lists business expenses including “contractor, sub-contractor and commission expenses”;[168]
[168]Defendants’ written submission paragraph 8, referring to Ex D1, pp240-242
(c) the tax return for the financial year ending 30 June 2012 refers to a business activity of “Truck Hire Service with driver.” The deductions include amounts for “home office” expenses, “sub-contract/contract labour” expenses and “admin” expenses.[169] In this respect the defendants rely upon Barro Group Pty Ltd v Fraser & Anor,[170] in which the Full Court “highlighted that it would be straining … almost [to] breaking point the union between fairness, common sense and the law if the law allowed a person to claim self employment in order to obtain tax advantages for himself and then to deny self-employment so that he could claim compensation”;
[169]Defendants’ written submission paragraphs9 and 44-47, referring to Ex D1, pp248, 251, 265, 275, 286, 297 and 315-321
[170][1985] VR 577 at 580-581, referring to Massey v Crown Life Insurance Co [1978] 1 WLR 676 at 681; see also Australian Mutual Provident Society v Allan 52 ALJR 407, at pp411-412 (referred to in this hearing as “Chaplin’s case”)
(d) it was also submitted that the ratio of business expenses to business income is relevant to a consideration of whether a person is carrying on a business of his own. The defendants asserted that the plaintiff’s business expenses are extremely high, being in the range of 95 per cent;
(e) in March 2011 and again in February 2014, the plaintiff applied for WorkCover insurance policies.[171] The defendants say that these documents, amongst other pieces of evidence “overwhelmingly [confirm] that the plaintiff was operating an independent road freight transport business which employed workers/people to drive his trucks.”[172] This was based on the following matters:
[171]Defendants’ written submission paragraphs10-18; Ex D1, pp 465-468 and 488-491
[172]Defendants’ written submission paragraphs11 and 48-61
(i) in those documents, the plaintiff describes himself as “the employer”, and refers to his home address as part of the “Workplace Details”;[173]
[173]Defendants’ written submission paragraphs12 and 49, referring to Ex D1, pp 465, 467 and 488
(ii) under the heading “Business Details”, the plaintiff identified the reason for making the application as “employing or intending to employ workers”;[174]
[174]Defendants’ written submission paragraphs13 and 49, referring to Ex D1, p 466 and 489
(iii) in answer to the question “Does any of your staff primarily provide services to another business?” the plaintiff ticked “No.” In addition, the plaintiff ticked “No” in answer to the question “Does your business supply its goods or services to less than four other businesses?” [175]
[175]Defendants’ written submission paragraphs14 and 50, referring to Ex D1, p 489
(iv) the main activity in the identified workplace was said to be “transport, less [than] 10km from pick up point.” Under points 32 and 33, the plaintiff confirmed that he expected “to employ 1 full-time worker” (2011) and “one or two full time workers” (2014) for the coming year. He also provided an estimation of the total likely remuneration;[176]
[176]Defendants’ written submission paragraphs15 and 51, referring to Ex D1, pp 467-69 and 491
(v) at the time of seeking the WorkCover insurance in March 2011, the plaintiff was driving his truck for Civic;[177]
[177]Defendants’ written submission paragraph 18
(vi) in May 2011, Freddy Caballero completed a Driver & Vehicle Information document.[178] The completion of this and associated paperwork at a time when the plaintiff had worked for this company for about 9 years, is said by the defendants to “create a compelling inference that the plaintiff engaged Freddy Caballero…to drive his Volvo truck and had delegated to him the performance of delivery services under the Owner/Driver Agreement….” since “by that stage there simply would have been no other need for the plaintiff to enter into the Owner/Driver Agreement on 2 May 2011”;[179]
[178]Defendants’ written submission paragraph 19, referring to Ex D1, pp 375-376
[179]Defendants’ written submission paragraphs25-26
(vii) the defendants submit that these applications for WorkCover insurance on their face “confirms [that] the Plaintiff [was] carrying on an independent transport business which is expected to employ workers. However, it must be considered with other contemporaneous and credible documentary evidence pertaining to the Plaintiff’s application for WorkCover insurance..”[180] It is the defendants’ contention that “Once all this documentary evidence is considered as a whole…it leaves no doubt that the Plaintiff was carrying on an independent road freight transport business which employed other persons/drivers to perform carriage services for reward.”[181]
[180]Defendants’ written submissions paragraph 52
[181]ibid
(f) the plaintiff did not refer to “rent” pertaining to trucks owned by him in his first affidavit sworn on 4 September 2017.[182] Similarly, the plaintiff’s bank statements record him paying amounts of money to various drivers which are described as “salary”;[183]
[182]Defendants’ written submission paragraphs62-63
[183]Defendants’ written submission paragraph 28
(g) according to the defendants’ analysis the contention that the plaintiff took 40 per cent of the other drivers’ gross earnings as “rent” is not borne out by the plaintiff’s own bank statements;[184]
[184]Defendants’ written submission paragraphs31-39 and 63
(h) in the financial year ended 30 June 2013, there is an amount of $16,753.23 declared as income which on the defendants’ analysis, came “from an unidentified … source”;[185]
[185]Defendants’ written submission paragraph 40
(i) in the financial year ending 30 June 2014, the plaintiff received payments from the first defendant, and two other carriers. The defendants assert that this demonstrates that the plaintiff’s truck rental arrangements did not “depend upon the first defendant for its existence in the relevant period”;
(j) there was a demonstrable falsity in the plaintiff’s assertion that he was not making any money out of his business. In particular, the defendants assert that in each of the financial years ending on 30 June 2016, 2017 and 2018, the plaintiff’s tax returns demonstrate a positive net business income.[186]
[186]Defendants’ written submission paragraphs64-67
79 As to the argument that the plaintiff should be found to be a worker at common law, the defendants submitted:
(a) that there was no evidence of any control being exercised by the first defendant over the manner in which the plaintiff’s work was to be done. Particular reliance was placed on the judgments of Latham & Dixon JJ (as they then were) in Humberstone v Northern Timber Mills;[187]
[187][1949] HCA 49, at [4] and [17]-[18]
(b) that the viva voce evidence and the affidavit of Mr Liam Slattery sworn 7 May 2019[188] demonstrates:
[188]Ex D1, pp 78-79 and 82-82
(i) that the plaintiff had entered into the contract with the first defendant to provide carriage services to it, including the provision of vehicle/s to perform those services;
(ii) that the plaintiff also engaged other persons to drive the trucks he owned and determined who drove each particular truck;
(iii) that the plaintiff paid all costs such as vehicle running and maintenance costs, insurances and registration and was contacted if there were any issues with the day to day operation of the trucks which he owned;
(iv) that the plaintiff was free to perform carriage services for other companies pursuant to the contract;
(v) that the plaintiff did not have to perform the work allocated to him personally, but could delegate it;
(vi) that in performing any particular delivery job, the plaintiff was free to determine what route he would take and the order in which the jobs allocated to him would be performed;
(vii) that the first defendant provided the plaintiff with a recipient created tax invoice for every job performed utilising the plaintiff’s trucks. The defendants ask why there would be a need to provide such invoices for all jobs, if the plaintiff was merely renting out his trucks to other persons;
(viii) that the explanation for the fact that the plaintiff took out WorkCover Insurances lies in the content of Clauses 19.2 and 20.1(d) of the contract, which provides that if the plaintiff employed persons to perform his obligations under this agreement he would at his own expense arrange and maintain Worker’s Compensation insurance for any person who would at any time be employed by him;[189]
[189]Ex D1, pp 161-162
(ix) that Clause 5 of the contract confirms the plaintiff’s acknowledgement that at all times he would remain an independent contractor and has been and would continue to be in business in his own right;[190]
[190]Ex D1, p156
(x) that the plaintiff was not paid sick leave, annual leave or superannuation whilst performing work for the first defendant;
(xi) that contrary to the plaintiff’s assertion that he merely rents out his trucks to other people and does not have much administration to do, the plaintiff has claimed as a tax deduction “admin expenses”;
(xii) that the separate guarantee neither invalidated the content of the original contract with the defendant nor prevented him from performing work for other contracting companies if he chose to do so;
(xiii) the plaintiff did not deal only with the first defendant during the relevant period. He was not dependent upon the first defendant for his income;[191]
[191]See BSA v Victorian WorkCover Authority [2018] VSCA 265 per McLeish JA at [90], [100] and [102]
(xiv) the plaintiff seeks reimbursement from the contracting companies for tolls incurred by the driving of his trucks;[192]
(xv) when his trucks require servicing, the plaintiff chooses the place where this should be done.[193]
[192]T70-71
[193]T38, L27-30
80 Ultimately, the defendants submitted that “if the Court finds that at all relevant times the plaintiff was carrying on an independent road freight transport business, then he cannot satisfy the Court of being a worker at common law or a deemed worker under s7A of the Act”.[194]
[194]Defendants’ written submission paragraph 69
Conclusion as to whether the Plaintiff is a worker
81 Having considered all of the evidence in relation to this matter, as well as the detailed arguments put by both sides, I am satisfied that the plaintiff is a worker for the purposes of the Act. I have reached this conclusion for the following reasons:
(a) I am satisfied that at all relevant times, the plaintiff’s work for the first defendant was performed at the first defendant’s direction, instruction or request under a contract of employment. In particular, having regard to the terms of the guarantee and other documentary evidence, I accept the plaintiff’s submission and find that at all relevant times:
(i) in performing work for the first defendant, the plaintiff was under the direction and supervision of the first defendant;
(ii) what was being supplied by the plaintiff to the first defendant was the work and skill of the plaintiff, rather than the supply of equipment or resources;
(iii) to the extent that the plaintiff’s trucks were being used by other drivers to perform work for the first defendant, this arose pursuant to a separate agreement between those drivers and the first defendant. The plaintiff had no control over the work those drivers undertook and indeed, whether they undertook any work at all;
(iv) the plaintiff had to do the jobs which were allocated to him and the first defendant determined what he would pick up and deliver;
(v) with little exception, the terms of the plaintiff’s work was governed by the guarantee, which included the following:
(A) set hours;
(B) the necessity for the plaintiff to log onto his handheld GPS (known as a PDA) and to make voice contact with the first defendant’s operator before 7am in the morning;
(C) a mandatory requirement for the plaintiff to arrive on site before the designated booking time;
(D) a mandatory requirement to call the first defendant to notify it of any available space once the plaintiff had picked up or dropped off;
(E) a specific requirement for the plaintiff to follow the instructions of the first defendant’s freight controllers;
(F) a specific requirement for the plaintiff to update his status with the first defendant’s operator;
(G) the necessity for the plaintiff to give two weeks’ notice to the first defendant if he wanted to have a day off;
(H) a requirement to adhere to job times that were allocated the day prior to the performance of the work;
(vi) a requirement to use a handheld GPS device (known as a PDA);
(vii) a requirement to wear the first defendant’s uniform;
(viii) the work was performed pursuant to an agreed daily rate;
(ix) the plaintiff considered the relationship between himself and the first defendant as one of employer and employee;
(x) the plaintiff did not offer his services as an owner-driver to any other entity whilst engaged by the first defendant. By reason of the restrictive terms of the guarantee, I find that it was practically impossible for him to do so;
(xi) the plaintiff did not know that he could, pursuant to the terms of the contract, delegate the work he was to perform for the first defendant to a third person. In any case, he did not at any time delegate any of his work. Importantly, I find that by reason of the restrictive terms of the guarantee and the manner in which work was allocated to the plaintiff, it would have been practically impossible for him to do so;
(xii) the first defendant considered that the plaintiff was an employee;
(b) as to the proper characterisation of the plaintiff’s dealings with other drivers vis a vis his own trucks, I am satisfied that the evidence demonstrates to the requisite standard that, separate to his arrangement with the first defendant to provide carriage services for it as an owner-driver, the plaintiff owns a number of trucks which he makes available for rent to other drivers, viz:
(i) the plaintiff’s evidence in this regard was unequivocal. I find that he has no control over what jobs those drivers take or who those drivers work for. This evidence was supported by the content of the affidavit of Mr Osborn.[195] It is not to the point that Mr Osborn has only been in in a rental relationship with the plaintiff since 2016. The plaintiff gave evidence about the nature of his relationship with the drivers who have rented his trucks over the years, including throughout his time as an employee of the first defendant. This evidence was not challenged during cross examination. There is no evidence which indicates that the rental arrangements which exist today differ in any way to that which presently exist;
[195]Ex p1, pp40J-40K
(ii) as to the matters which the defendants have highlighted as being indicative of the fact that the plaintiff is running a “road freight transport business,” which appear from entries in his tax returns, bank statements and other business documentation:
Deductions claimed in tax returns
(A) it is clear from the evidence and I find, that in relation to the tax returns, the plaintiff was reliant upon his Accountant for advice as to what entries to make. Thus the words used to describe items or characterise particular deductions are not determinative of the matter;
(B) with the exception of the WorkCover insurance and possibly the sub-contractor/salary items, I find that each of the deductions claimed in the plaintiff’s tax returns are uncontroversial expenses which might be expected to arise in the course of earning income from the rental of a truck;
WorkCover Insurance premium
(C) the plaintiff was pressed about the reasons why he obtained WorkCover insurance if he was not an employer. He explained that he was told by the first defendant that if he wanted to be paid directly, then he needed to take out that insurance. As was referred to above, the plaintiff said that he was “happy to agree to almost any condition to get the security of direct payment.”[196] This evidence was unchallenged. I accept the explanation given by the plaintiff;
[196]Ex P1, p 40DD
(D) as to the content of the application forms, he said that when he made the telephone call to obtain the insurance, he told the insurance agent of the arrangement between him and the first defendant, and that person told him what to put on the form in order to obtain the insurance. He said that when he filled in the form “I talked to the people [at] WorkCover I didn’t know how to fill it out…I thought I wouldn’t get it if I didn’t fill it out like that.”[197] This evidence was unchallenged. I accept the explanation given by the plaintiff;
[197]T42-43
Payments characterised as “salary”
(E) the fact that the plaintiff has described as “salary” the amounts he paid to the other drivers, does not weigh against the conclusion that the plaintiff is renting out his trucks to other drivers;
(F) as set out above, the plaintiff explained in a coherent and credible manner the fact that after taking out his rent, he on-paid the relevant portion of that money to those who were renting his trucks. I have found that the plaintiff was obliged to accept an arrangement whereby he was paid the money owed to the drivers who were renting his trucks, if he wanted to ensure the receipt of the rent that was due to him. The evidence indicates and I accept that this is common practice in the trucking industry. The plaintiff’s evidence on this matter was unchallenged. Mr Osborn, whose evidence was corroborative of the plaintiff in relation to this matter, [198] was not required to attend for cross examination;
[198]Ex P1, pp 40J-40K
(G) when the plaintiff in turn paid the relevant monies to the various drivers, the sum paid was accurately characterised as “salary,” it being monies that had been paid by the contracting company in respect of work performed by that driver;
(H) having received payments in respect of another driver’s labour, I find that the plaintiff was obliged to declare the income that he had received. This having happened, it is not surprising that he would claim the payments which he then made to those drivers, as a deduction on his tax return;
Amounts said to be “rent” do not add up to a sum which reflects 40 per cent of the amounts paid
(I) the defendants submit that the plaintiff’s argument that he was running a truck rental business is undermined by an analysis of his bank records, which demonstrates that he was not in fact withholding a “flat” 40 per cent of the monies he received. On that basis amongst others, it was said that the Court ought reject the plaintiff’s evidence on this point;
(J) in support of this argument, an analysis was made of a small portion of the plaintiff’s bank records, namely from 7 December 2012 to 7 January 2013 and from 20 December 2013 to 13 January 2014. The analysis revealed fluctuating amounts being paid to the various drivers represented in those records during this period. The defendants submitted that the analysis demonstrates that the plaintiff routinely kept well in excess of the 40 per cent which he claimed to be taking as rent. The defendants argued that “the constantly varying percentage of distributions/debits…is completely at odds with the plaintiff’s assertion of retaining a flat rate of 40% [by way of rent] … [but] … is …entirely consistent with wages/salary being paid… .”
(K) in fact, there is no evidence before this Court which would allow me to draw any conclusion about why, on any particular occasion, during the very short periods represented by the “snapshot” focussed upon by the defendants, the amounts paid did not reflect a 40 per cent retention rate. The plaintiff was not cross examined in relation to this issue;
(L) I do not accept the defendant’s argument that because the percentage of the monies which were retained may have fluctuated, I am compelled to reject the plaintiff’s evidence about the reasons why he was paying money to the drivers of his trucks and the way in which the relevant payments were calculated;
Ratio of expenses to income
(M) the defendants argued that the plaintiff’s business expenses were too high for him to claim that he was merely renting out trucks to other drivers. The reasoning behind this argument was not elaborated upon, but seemed to be based upon an observation made in Australian Mutual Provident Society v Allan, that “such a high ratio appears much more consistent with the view that the taxpayer was carrying on a business of his own than … that he was an employee under a contract of service”.[199] This quote makes it clear that a high expense to income ratio is not determinative of the matter, but merely one factor to be taken into account;
[199]Australian Mutual, supra, at 411-412
(N) in relation to this issue, the plaintiff gave evidence about the fact that renting out his trucks was not a profitable activity for him. The financial documents bore this matter out. In the absence of receiving WorkCover payments in the last three financial years, the plaintiff would have declared a loss on his tax return;
(O) I have already concluded that with little exception, the expenses claimed on the plaintiff’s tax returns appear to reflect the legitimate expenses associated with renting his trucks to third parties. To the extent that there are items claimed as a deduction which are not obviously referable to the activity of collecting rent, the legitimacy of those deductions in the particular situation that the defendant found himself in, has been considered above;
The Plaintiff ought not now be allowed to resile from an advantageous business structure which he has set up for tax purposes
(P) the defendants relied heavily on the judgment in Barro Group Pty Ltd v Fraser & Anor,[200] to make the point that the plaintiff ought not be able to obtain the tax benefits of running a particular business structure, and then claim for the purposes of obtaining compensation, that he was in fact an employee;
[200]supra
(Q) in Barro, the Full Court set out the fact that the uncontradicted evidence was that the plaintiffs were in partnership and that when the contract was made between the plaintiffs and the defendant, the judge at first instance ought not to have ignored the fact that the plaintiffs contracted as partners. The Full Court referred to Massey v Crown Life Insurance Co,[201] where Denning MR observed:
[201]supra at 581
“strong evidence of [the] real relationship is provided by a man who, for the purposes of obtaining tax benefits, procured an agreement from his former employer that his future engagement would be as a self-employed person…”
The Full Court also noted that the following passage from the judgment of Lawton LJ in Massey,[202] was apposite to the plaintiffs’ claim, viz:
[202]supra
“In the administration of justice the union of fairness, common sense and the law is a highly desirable objective. If the law allows a man to claim that he is self-employed in order to obtain tax advantages for himself and then allows him to deny that he is a self-employed person so that he can claim compensation, then in my judgment, the union between fairness, common sense and the law is strained to almost breaking point…”
(R) there is no evidence before this Court that the plaintiff’s arrangements with the first defendant in any way mirror the circumstances which arose in Barro and Massey. In particular, there is insufficient evidence before the Court to allow me to conclude that the plaintiff is presently running a business as a self employed person;
(S) in order to reach such a conclusion, I would have to reject the plaintiff’s unchallenged evidence about his rental arrangements and the obligations imposed upon him by the first defendant in order to secure his rental income. This evidence was unshaken by robust cross examination. I accept the plaintiff’s evidence about these matters;
(iii) lastly, the defendants submit that under the terms of the contract, the plaintiff acknowledged that he remained an independent contractor and was free to delegate work or to work for other entities if he chose to do so. I find that this argument fails to acknowledge the reality of the fact that at nearly all times while the plaintiff was employed by the first defendant, he was subject to and abided by the terms of the minimum payment guarantee;
(iv) while the defendants submit that the existence of this separate agreement did not invalidate the terms of the contract, it would be an exercise in artificiality if the reality of complying with the guarantee, was ignored, viz: “How can I go and – I’m working for them 6.00 till 4.00 every day…I used to start work …[in] Somerton, be there by 7 o’clock. Then I finish at Portsea about 6.00, 7 o’clock…I was working every day. I was long hours. Physically, I could not look for any work”;[203]. As I have already found, the evidence is clear that if the plaintiff wished to obtain the benefit of the minimum payment guarantee, for practical purposes, he was totally under the direction or instruction of the first defendant;
(v) I reject the argument put by the defendants that the evidence compels a conclusion that the plaintiff was conducting a “road freight business” that comprised “one, indivisible structure.” I find that the plaintiff was an owner-driver who performed carriage services for the first defendant utilising his own truck, whilst simultaneously renting out other trucks that he owned to other drivers, over who he had no control.
[203]T76-77
Economic loss
82 The plaintiff’s arguments as to economic loss were as follows:
(a) the Court should find on the basis of the plaintiff’s evidence and the medical evidence, that he has no capacity for suitable employment. The plaintiff submitted that weight ought be given to the opinion of Dr Slesenger, an occupational physician, who said that by reason of the injuries suffered by the plaintiff, he could not envisage the plaintiff being able to perform work in suitable alternative duties on a consistent and reliable basis. The plaintiff submitted that this is entirely consistent with the plaintiff’s evidence that he needs to lie down on a daily basis because of his back pain;[204]
[204]Ex p1, p40B
(b) the Court should not find that the rental activity conducted by the plaintiff equates either to work or to a realistic work capacity. Further, the Court should not conclude that this activity constitutes suitable employment;
(c) if the Court finds that the plaintiff has some work capacity, for the purpose of assessing whether he has a loss of earning capacity of 40 per centum or more measured in accordance with the formula set out in s.134AB(38)(f) of the Act, the plaintiff’s without injury earning capacity is best represented by his earnings from the 2013 financial year, namely $71,210;
(d) the definition of “income from personal exertion” in the Act is the same as that set out in s.6(2) of the Transport Accident Act 1986 (“TAA”). By section 6(2)(g), “income from personal exertion” does not include “rents or dividends.” On that basis, the Court should find that the plaintiff is not presently earning any “gross income from personal exertion,” as the income he presently receives is rental from his trucks.
83 The defendants rely on the submissions summarised in paragraphs 78 and 79 above in support of an argument that the monies which the plaintiff presently receives constitutes business income earned from the plaintiff’s personal exertion in conducting a “road freight transport business”;
84 In addition, the defendants submit that “even if the Court finds that the plaintiff is a worker within the meaning of the Act, the plaintiff has failed to demonstrate the requisite loss of 40% (measured as at the date of the hearing) which will persist into the foreseeable future.” This is because the defendants submit that the plaintiff’s after injury earnings were $297,903 in the financial year ended 30 June 2018 and about $345,000 in the financial year ending 30 June 2019.
Conclusion as to economic loss
85 The weight of the medical evidence satisfies me that the consequences of the injury to the lumbar spine which the plaintiff sustained in the accident, have resulted in the plaintiff being unfit both for his pre-injury duties and for any alternative suitable employment. In reaching this conclusion, I have had particular regard to the evidence of Dr Haines, Dr Khan, Dr Awad and Dr Slesenger. I note that the opinion provided by Dr Umberto Boffa, the Consultant Occupational and Environmental Physician engaged on behalf of the defendant, was dated January 2016, and was therefore unhelpful to my assessment of the plaintiff’s present work capacity. For this reason, I prefer the opinions of the plaintiff’s treating doctors referred to above.
86 Having considered all of the relevant evidence, I am satisfied that the rental activity conducted by the plaintiff does not equate either to work or to a realistic work capacity. Further, I have formed the view that this activity does not constitute “suitable employment.”
87 I am also required to consider issues of retraining and rehabilitation pursuant to s134AB(38)(g) of the Act.
88 In light of the evidence before the Court, I am satisfied that there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the fact that he has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g) of the Act.
89 Accordingly, I grant leave to the plaintiff to bring proceedings for damages in respect of both pain and suffering and loss of earning capacity.
Conclusion
90 Accordingly, pursuant to s134AB(16)(b) of the Act, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity in respect of the injury that he suffered to his spine on 5 February 2014.
91 I will hear the parties on the question of costs.
- - -
9
0