Murphy v Bendigo Construction Services Pty Ltd
[2020] VCC 727
•20 February 2020
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-03304
| JACK ANTHONY MURPHY | Plaintiff |
| v | |
| BENDIGO CONSTRUCTION SERVICES PTY LTD (ABN 84 168 692 822) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 3 and 4 February 2020 | |
DATE OF JUDGMENT: | 20 February 2020 | |
CASE MAY BE CITED AS: | Murphy v Bendigo Construction Services Pty Ltd (ABN 84 168 692 822) & Anor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 727 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of both wrists – pain and suffering – loss of earning capacity – worker under 26
Legislation Cited:Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; State of New South Wales v Moss [2000] NSWCA 133
Judgment:Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr M Fogarty | Arnold Dallas McPherson |
| For the Defendants | Mr A J McG Moulds QC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) in relation to an injury suffered by the plaintiff during the course of his employment with the first defendant as an apprentice carpenter on 8 August 2014 (“the said date”).
2 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325 of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The body function said to be impaired is the right and left wrists.[1]
[1]Transcript (“T”) 3
4 Counsel for the plaintiff did not formally withdraw an application pursuant to clause (b) in relation to disfigurement caused by the surgical scarring. The scarring was viewed in Court on the morning of the second day of hearing, but as no submissions were made in relation to ss(b), I am not required to consider that application further.[2]
[2]T30
5By s325(2)(b) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
6The plaintiff bears an overall burden of proof upon the balance of probabilities.
7I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8Subsection (h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
9 Section s325(e)(ii) of the Act sets out the test of loss of earning capacity for a worker under 26. The considerations required by s325(f) do not apply to such a worker.
10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] in reaching my conclusions.
[3](2005) 14 VR 622
11The plaintiff swore two affidavits and was cross-examined. Also in evidence were medical reports and other material. I have read all the tendered material.
12 In general terms, counsel for the plaintiff submitted the plaintiff was a well-motivated man who had tried in his trade post injury and then, when that did not work, went off and tried three different jobs. It was submitted the totality of the medical evidence was all one way in relation to the prohibition to working as a carpenter.[4]
[4]T20
13 Counsel for the defendants submitted the full story in terms of the plaintiff’s pain and suffering and loss of enjoyment of life is that he has returned to a very active sporting recreational life, which he enjoys. The work he does as a delivery driver, on his own admission, he could do full time. That is a job of some real strenuousness. It was submitted it was entirely speculative as to whether the plaintiff would have continued on through his apprenticeship and become a carpenter. In that regard, the defendants relied on affidavits from Mr Gill and Mr McKenzie.[5]
[5]T10
14 However, counsel for the defendants conceded that if it was accepted the plaintiff could not pursue his trade because of his wrist injury, that was a serious consequence in terms of pain and suffering.[6] Whether the plaintiff had suffered a loss of 40 per cent was in issue.
[6]T11
The Plaintiff’s evidence
15 The plaintiff swore his first affidavit on 26 February 2019 and swore a supplementary affidavit on 13 January 2020.
16 The plaintiff is presently aged nearly twenty-six, having been born in February 1994. He is right hand dominant.[7]
[7]T5
17 After completing Year 12 VCAL, the plaintiff worked in retail locally and then obtained an apprenticeship with the first defendant in October 2012 (“the apprenticeship”).
18 The apprenticeship was to be for four years with the first defendant, a company which carried out maintenance, renovated and built new commercial and domestic buildings.
19 On the said date, the plaintiff, while working in Lara, fell from a ladder, landing on both wrists (“the incident”). An ambulance was called and he was taken to Geelong Hospital, where he had surgery.
20 Thereafter, the plaintiff returned to Bendigo, where he was under the care of Dr Stuart Snow, general practitioner, who prescribed medication for swelling.
21 Towards the end of October 2014, the plaintiff returned to work with the first defendant on light duties for about three weeks, before returning to normal duties. He struggled with normal duties because of wrist pain. His employer, Travis Gill, gave him a hard time because he was not able to work quickly and the plaintiff was modifying how he did things like carrying one piece of timber at a time instead of two.
22 In about February 2015, the plaintiff’s apprenticeship and employment were terminated.
23 Performance reviews by Mr Gill were not planned and the plaintiff did not know about them until they had happened.[8] Mr Gill just did them “whenever”.[9]
[8]T14
[9]T15
24 The plaintiff was taken through the contents of the December 2012 performance review, where he scored 52 per cent. He agreed that initial review was entirely complimentary[10] and that Mr Gill gave a compliment.[11]
[10]T16
[11]T17
25 The plaintiff agreed his results in the 2013 calendar year were less complimentary and he was assessed at only 39 per cent. He could recall talking to Mr Gill about that review and being told by him he was disappointed with his performance.[12] The plaintiff honestly could not remember the exact terms of the conversation because it was that long ago.[13]
[12]T17
[13]T16
26 From the plaintiff’s memory, he thought there were four to five apprentices and there were maybe two or three qualified carpenters, and Mr Gill, so about ten people altogether.[14] The first defendant’s work was on domestic houses and just a couple of commercial jobs.[15]
[14]T18
[15]T19
27 The Lara project on which the plaintiff was injured, took about a bit more than eight months. Mr Gill was not present on that project. There was a site manager, John Wynns, and the carpenters on site.[16]
[16]T19
28 The plaintiff was given a warning letter in February 2014 because he had his brother help him on the job without authorisation. At that time, the plaintiff was struggling with the work and that particular job involved heavy trees and dumping them in someone’s paddock.[17]
[17]T19
29 The plaintiff was then taken to the December 2014 review, where his performance was down to 34 per cent.[18]
[18]T20
30 The plaintiff denied Mr Gill ever said to him it would not be foreseeable for the first defendant to be able to sign him off as a competent carpenter.[19] Mr Gill never said he could never be a builder. He never told him he should consider his position about whether he should continue trying to be a carpenter or builder.[20] He never said he was not happy with the amount of tools the plaintiff had purchased.[21]
[19]T21
[20]T22
[21]T23
31 The plaintiff had not set goals for himself at that time because he “had other stuff going on in [his] head as well, at that time”.[22]
[22]T23
32 When it was suggested to the plaintiff Mr Gill was concerned about his performance before his injuries, the plaintiff said he was not really all that concerned. He barely spoke to the plaintiff, so he never came up to him and actually said he was concerned.[23] The only time there would be a discussion was after Mr Gill had done the review. Half the time, the plaintiff would not have even seen Mr Gill on the job. He barely saw him when he was working down in Lara, because Mr Gill stayed in Bendigo and there were other superiors present. The plaintiff had no idea whether they reported back to Mr Gill about how he was going.[24]
[23]T26
[24]T26
33 After the plaintiff’s injury, when his mum was going through terminal cancer, Mr Gill “didn’t give a rat’s arse”. When the plaintiff was going through a tough time, Mr Gill was not really helping him as much. He did not care the plaintiff hurt himself, he just wanted him back to work, even though the plaintiff told him his wrist was still sore. Mr Gill pretty much told him to “suck it up”.[25]
[25]T27
34 The plaintiff agreed he was sent a termination letter[26] in which he was advised his employment was being terminated because he was:
[26]T27
“● Not carrying out the work to the required standard
● Not completing set tasks before starting another tasks (sic)
●Missing crucial building elements resulting in building inspection failures and 2nd inspections that are back charged to Bendigo Construction Services i.e. Missing tie downs that you have (truss layout) to follow … [having been set this task on a number of jobs in the past]
●Rectifying your completed tasks that were not up to Bendigo Construction Services nor the builder’s standard, resulting in loss of income for Bendigo Construction Services Pty Ltd.”
35 The plaintiff confirmed what was in these points was true, and that some of it was a fact.[27]
[27]T29
36 In re-examination, the plaintiff then said these matters were Mr Gill’s opinion. The plaintiff thought he was doing well. Other supervisors under whom he worked at Lara did not say anything to him about his work and Mr Gill just said he should “suck it up”.[28] He just did not care about the plaintiff’s injury –“Like, this is after I’ve had the surgeries ... and gone back to work, I couldn’t lift as much timber …” and Mr Gill just told him to just “suck it up”. The plaintiff was working at Mr Gill’s speed when he physically could not do the work because of his wrists. The problem with his wrists was he had lost all strength in them and did not have as much strength as he used to have. He could not lift as much and just using, like the angles or a nail gun, and just swinging a hammer repetitively just caused pain.[29]
[28]T53
[29]T54
37 The plaintiff went back to work a couple of weeks after the first surgery. He had a plastic cast thing on his wrists just for about a couple of weeks, before he could move his wrists again. On light duties, with the casts on, he was not doing any physical stuff, he was not doing anything with his hands, and he was just looking at plans and “stuff”. He then went back on the tools after the casts came off. Mr Gill never suggested to him that he was not going to be able to continue his apprenticeship with the first defendant.[30]
[30]T55
38 The plaintiff got on fine with Mr Gill. Towards the end they did not really see eye to eye, but before all the injury and “stuff”, they were fine.[31]
[31]T55
39 About one month after leaving the first defendant, the plaintiff found a position with PKM Builders, continuing his apprenticeship. His employment with that business was terminated because he understood the owner thereof, Paul McKenzie, was not happy with the speed of his work. The plaintiff had been struggling because of his wrist injuries.
40 The plaintiff was at PKM for about twelve months and did domestic work, like house frames. He would work on wardrobes, skirting boards and eaves.[32] He agreed he had discussions with Mr McKenzie about the productivity of his work. The plaintiff thought he was going well and Mr McKenzie thought he was a bit slow. The plaintiff denied Mr McKenzie ever told him that contractors had complained about his work. The plaintiff knew nothing about those complaints. He agreed Mr McKenzie was telling him he thought he was slow.[33]
[32]T32
[33]T33
41 The plaintiff remembered the incident where he had three tries doing cupboard doors and agreed he did not do it properly. His wrists were slowing him down as well at that time. He did not do the job properly, because he had a lot of other things going on at that time as well. It was his mum’s illness.[34]
[34]T35
42 Mr McKenzie discussed the plaintiff’s position with him. He told the plaintiff he was not going to fire him and just said he was too slow, he was not up to the pace for his company, so he gave him the option to resign so he did not have to sack him and it did not look like he was sacked.
43 The plaintiff agreed the situation with the cupboards was the last straw.[35] He denied the termination of his employment at PKM was nothing to do with pace and was to do with his capacity and motivation to get the job done. He explained he had all the motivation for the job and loved what he was doing. He agreed there were other things affecting his work at that stage.[36]
[35]T35
[36]T36
44 The plaintiff then started work with Brad Turner Designs as an apprentice carpenter two weeks later. He worked there for a couple of months, but had to give up work in June 2016 because his wrists were not coping too well. He had been unable to complete his apprenticeship.
45 The plaintiff left Brad Turner Designs because he could not do the work anymore because of his wrist pain.[37]
[37]T36
46 Going to PKM, the plaintiff intended to continue his apprenticeship. That was also his intention when he went work with Turner.[38]
[38] T55-T56
47 The plaintiff agreed he did not see a doctor about his wrists when working for Turner, McKenzie or Gill after he returned to work. He had no treatment from Dr Snow or any other doctor during that time.[39]
[39]T37
48 The plaintiff did not go to the doctor because he just loved what he was doing, he was enjoying being a carpenter and he did not want to just push his injury aside. He did not want to because he did not want to get fired or anything. He was trying to stay and work.[40]
[40]T37
49 In July 2016, the plaintiff went back to Dr Snow to discuss his wrists and he was sent for x-rays and referred to orthopaedic surgeon, Mr Peter Maloney, and referred for an MRI scan.
50 In late 2016, Mr Maloney offered the plaintiff surgery, which he underwent on his left wrist on 24 November 2016 and attended physiotherapy thereafter. On 7 May 2017, Mr Maloney operated on the plaintiff’s right wrist.
51 The plaintiff would have finished his apprenticeship in about October 2016, and if he had not injured his wrists, he would be still working as a carpenter. He enjoyed the profession and felt a sense of accomplishment when he finished something. He would look at it and think to himself “I built that”. One day, he would have liked to have his own business.
52 Of his own volition, the plaintiff went for a traffic controller job in Bendigo. IPAR could not get him work in that field. The job he applied for was with Game Traffic Control.[41]
[41]T52
53 About six months after the right wrist surgery, the plaintiff found a job at George Weston Foods Limited on the production line as a process worker, but lasted only a day because the work aggravated his wrist pain.
54 In about January 2018, the plaintiff found work with Pickering Transport Pty Ltd delivering Coca Cola products. He was there only a week and three days. Because of increased wrist pain from handling the slabs of drink, he was not able to keep doing the job.
55 In about February 2018, the plaintiff started casual work with Little Green Truck Bendigo as a delivery driver and furniture removalist. In February 2019, he was working roughly between fifteen and thirty hours a week and paid $25.05 gross an hour.
56 The plaintiff was fortunate, because although it was a physical job, the equipment he worked with was pretty good and he worked in a team of two. One of the trucks had an hydraulic tailgate and the other had a ramp.
57 As of February 2019,[42] most of the time the plaintiff’s wrist ached and his pain level fluctuated, mostly sitting around 3 to 4 out of 10, but about once a fortnight it escalated for no reason to about 5 out of 10. He had not got full strength back in either wrist.
[42]First affidavit
58 The plaintiff’s wrist injuries had interfered with his hobbies. Most of his life, he had been a passionate basketballer and in the past had umpired. He was then playing one night a week and found he could not shoot the ball as far. He had difficulties with accuracy because of his wrists.
59 The plaintiff then played hockey once a week in the winter and also trained once a week. Sometimes, when he hit the hockey ball, he experienced a jarring sensation in his wrists and sometimes, when he played, he felt he might damage his wrists. He kept playing because he enjoyed it and liked the social side. He had always enjoyed playing sport and did not want to give these things up. He was determined not to let his injuries get the best of him. He also played cricket in the summer.
60 The plaintiff then did not believe he would be able to return to work as a carpenter, as the repetitive use of tools would aggravate his wrists and the work also required strong arms and wrists.
61 Sometimes, the plaintiff wished he had his full strength back because he was obviously not as strong as he used to be. He was now more limited in terms of what he could lift and usually had to rely on other people for help.
62 The wrist scarring bothered the plaintiff and he did not like the look of it as it was ugly. Sometimes, people ask him how it happened and sometimes they thought he had cut himself, which particularly upset him.
63 The plaintiff worried about the security of his employment. He was still very young, then aged only twenty-five. It took him a long time to find his current job. His employer did not know about his injuries or WorkCover claim. If the plaintiff did not have that job, he believed it would be hard for him to find another one. At work, he wore long sleeves covering his wrists so that people did not see them.
64 Sometimes, the plaintiff thought about the future and whether he would be able to do everything he planned to do before he hurt himself. One day he would like to have his own house and have a family. If he had been able to continue with carpentry, he now would be in a better financial position.
65 The plaintiff wanted to have children while he was younger, because he was worried about arthritis in his wrists. This meant that he will not be able to be the dad he wanted to be, and to be able to play sport and run around with his children.
66 The plaintiff’s general practitioner had talked about how he would get arthritis. He thought about that often and whether it would come in five years, ten years or more. He used his hands every day. They were so important. He worried about how that would affect his life.
67 In his recent affidavit, the plaintiff deposed he basically continues to suffer the symptoms, consequences and effects of his wrist injuries.
68 The plaintiff continues to suffer constant fluctuating pains in his wrists, with very similar pain in both. He generally experiences a dull aching pain and at times, his wrist pain flares up. On these occasions, he experiences an intense aching pain. He gets clicking in both wrists, especially the right, and he has reduced strength in both.
69 The plaintiff takes Nurofen most days for wrist pain. He tries not to take it every day, because he has been told it is not good for him. When he has a flare up of intense wrist pain, he usually takes four Nurofen a day.
70 The plaintiff has continued to work as a casual furniture delivery driver with Little Green Truck. His hours vary between fifteen to twenty-five a week and he is paid $25 an hour. They usually work in pairs, or sometimes three of them perform deliveries. They generally use trolleys, particularly to move heavier items.
71 The plaintiff has been offered permanent part-time work as of next week, where he will be paid $21 an hour.[43] He agreed he would work full time with his current employer if that role was offered, but that employer is not in a position to do so now. Until now, as a casual, basically the plaintiff gets a text message the night before and told he was required for work.[44]
[43]T12
[44]T13
72 The plaintiff is not seeking work to fill the gap to thirty-eight hours, because he agreed it is a pretty good life, and he is enjoying being out and about driving the truck and it is a good job for him.[45]
[45]T13
73 The plaintiff would accept full-time work if it was offered, but there is no one working with his current employer full time.[46]
[46]T52
74 Had the plaintiff not been injured in the incident, his plan was to complete his apprenticeship as a carpenter and become qualified. If the incident had not occurred, he believes he would now be employed as a carpenter.
75 The plaintiff is aware that carpenters working on large commercial construction sites in Melbourne are able to earn very good money. He would have been happy to move there to work as a carpenter. He is now unable to return to carpentry because of his wrist injuries. Using hammers, power tools and performing repetitive movements with his wrists, causes increased pain. He has been unable to perform those sorts of duties on a consistent basis because of that pain.
76 The plaintiff has continued to play hockey, basketball and cricket. He is currently playing social basketball and usually does so once a week, but does not play every game. He plays cricket on Saturdays and trains once a week, playing in a Division 2 team. Playing hockey, basketball and cricket cause him increased wrist pain, but despite that, he is determined to keep playing if he can, because he has always loved playing sport.
77 The plaintiff started playing hockey two years ago.[47] He played that in addition to basketball, which he had been playing since he was about ten. He plays basketball all year around.
[47]T37
78 The plaintiff had time off his various sports while he had time off work following both lots of surgery.[48] Basketball is in social domestic competition at the Bendigo Sports Centre once a week. It is a very low grade male team. There is no training. The team is called “Milkos”. It is in “H” grade, down the bottom.[49]
[48]T38
[49]T40
79 The plaintiff plays cricket in the summer and hockey in the winter for Eaglehawk. The plaintiff was told there was film of him playing a hockey game for ninety minutes, where he was shown running around and using his stick to hit the ball to flick it. He agreed he did so more with his right hand. He is the captain of the “B” grade team in the Central Victorian Competition.[50] He agreed he played thirteen games in 2019 and scored three goals. He played one game in “A” grade to fill in. “B” grade has a coach and the plaintiff is the captain.[51]
[50]T41
[51]T42
80 The plaintiff agreed hockey involved regularly moderate vigorous use of upper limbs and wrists with the stick.
81 The plaintiff plays cricket for Marong in the Emu Valley Competition in its “B” grade team. He is a right-handed bowler. The team is in Division 2. He does not spin the ball and, on average, bowls between five to ten overs in a game. He trains once a week and bats down the order.[52] He fields at backwards square leg. The plaintiff agreed he enjoyed these sporting activities.[53]
[52]T44
[53]T45
82 The plaintiff, in re-examination, confirmed hitting the hockey ball had an effect on his wrists, jarring them. He still played because he enjoyed playing. He loved what he was doing, he just wanted to keep going and he did not want to sit on the couch and do nothing.[54]
[54]T52
83 The plaintiff continues to feel uncomfortable about his wrist scars and does not like the look of them, and they look ugly. Because of their position, it is difficult to conceal them. Often people ask whether he has tried to commit suicide and he gets uncomfortable when asked about the scars. The scars are sensitive and he would like to get tattoos over them to hide them if he could. Since he injured his wrists he has had a tattoo done on his left forearm. It very slightly covers one end of the scar on that arm. Getting tattooed over the scar was extremely painful and he is reluctant to get more tattoos done to cover the scars.
84 The plaintiff remains concerned about how his wrists will be in the future. He is particularly worried about getting arthritis and increased pain as he gets older. He is now only twenty-five and worries about going to be stuck with these problems for the rest of his life.
85 The plaintiff agreed the only thing he could not do was return to carpentry. He has not applied for any other work to fill the gap; he had not thought about it.[55] He did not think there was plenty of work around the Bendigo area at the moment for truck driving courier work. He enjoyed his current job and he did not want to go anywhere else. He confirmed he would work more with his current employer if he was offered that work.[56]
[55]T45
[56]T46
86 The plaintiff presently delivers furniture to domestic premises with another worker, who is either senior to him or a jockey. They are supplied with a trolley with two wheels and a platform, and he is able to push or pull it. Who drives depends on the person’s seniority.[57]
[57]T47
87 When asked whether he had thought about having his own business as a delivery driver full time, the plaintiff honestly had not thought about it. Probably, financially, would be a reason why he would think he would not be able to do it.[58]
[58]T48
88 The plaintiff agreed it is quite good money he now gets part time. He is happy with what he is doing so he is going to stay there. He works with good people and a good boss.[59] He did not know if he could work full time as a furniture removalist unless he tried. He had not had the chance, so he did not know. There is nothing in what he is doing so far to make him think he would not be able to do it full time, but he is not working full time at the moment.[60]
[59]T49
[60]T50
The Plaintiff’s medical evidence
89 Records from the Geelong Hospital indicate the plaintiff attended on the said date with bilateral wrist fractures, the right severely comminuted and left moderately comminuted.
90 X-rays of the wrists at the Hospital showed bilateral comminuted intraarticular dorsally angulated distal radial fractures and associated ulnar styloid fractures. There was an undisplaced triquetrum fracture, the right side severely comminuted; in the left, moderately comminuted.
91 Surgery was initially performed on the right wrist, with the fracture reduced and K-wire inserted through the radial styloid and a volar plate applied. The left-sided fracture was then reduced and a plate applied to the shaft, and the fracture reduced to plate and distal screws inserted.
92 On discharge on 10 August 2014, the plaintiff was prescribed paracetamol, ascorbic acid and oxycodone (Endone). He was to follow up in Orthopaedic Outpatients. He was not to lift any weight more than 500 grams for six weeks. Sutures were removed at Outpatients on 26 August 2014.
93 On 28 July 2016, the plaintiff was referred by his general practitioner, Dr Snow, to Mr Maloney, orthopaedic surgeon.
94 Dr Snow advised Mr Maloney that the plaintiff was an apprentice builder at the time of the incident. He continued his training, but had to stop because of chronic pain and weakness, making him too slow. Dr Snow sought Mr Maloney’s view as to whether intervention would enable the plaintiff to continue as a builder or whether he needed to change career.
95 By letter dated 11 April 2017, CGU had advised Dr Snow of employment options for the plaintiff that it thought appropriate, namely carpenter, traffic controller, retail sales assistant, courier drive and bar attendant. CGU approved a traffic control and traffic management course on 11 January 2017.
96 In his response to questions asked by CGU, Dr Snow thought the plaintiff had a capacity to undertake some of the work suggested. He noted the plaintiff had recently conducted a work trial as a food processor, but could not cope with the repetitive nature of the duties or work in a cool store. He was then currently looking for work as a fencing contractor, which Dr Snow thought may prove to be unsuitable. He noted the plaintiff was keen to work and physically was making an excellent recovery. Dr Snow advised vocational support would be helpful. He thought the plaintiff had an excellent prognosis and further education and training would increase his options further.
97 Dr Snow provided a report detailing treatment until 16 May 2018.
98 Dr Snow noted he first saw the plaintiff on 1 December 2014, when he told him of the incident earlier that year. Following the initial surgery, he noted the plaintiff recovered and returned to full duties. Examination revealed a full range of movement in both wrists.
99 In February 2015, the plaintiff returned, and advised he was unhappy at work and reported being bullied. He was receiving offensive text messages. He was issued with a WorkCover certificate on the basis of unnatural work stress on 16 February 2015, and left the workplace for alternative employment.
100 The plaintiff returned on 25 July that year, reporting he was unable to continue working with his new employer because he was too slow and his wrists ached all the time, and his employment was terminated.
101 Dr Snow noted review x-ray showed ununited styloid fractures in both wrists and the plaintiff was issued a WorkCover certificate and referred to hand surgeon, Mr Peter Maloney, who recommended bilateral surgery, which he later undertook.
102 The plaintiff made a steady recovery following that surgery and found a job on a production line in September 2017; however, he reported pain in the extensor tendons and left that position and applied for a job as a fencing contractor. He was able to use a crowbar, but that role was very demanding on his arms, wrists and hands, and he was not offered the position. Dr Snow suggested the plaintiff request an indemnifying letter from the insurer to offer prospective employers.
103 In November 2017, the plaintiff reported he was struggling to find work due to his past injury status. He was looking for truck driving. He obtained his heavy truck licence and got a job delivering Coke, but, unfortunately, handling slabs of the drink caused wrist pain, and he ceased employment.
104 When last seen on 16 May 2018, the plaintiff reported he was working in a new job that combined deliveries with onsite assembly of packaged products, such as flat-packed furniture. He loved the job and appeared very content.
105 In terms of prognosis, Dr Snow thought this had been a significant injury, with both physical and psychological scars. The plaintiff appeared a resilient young man, who had found employment that suited him. Dr Snow deferred to Mr Maloney’s expertise, but would offer the opinion that the plaintiff had a greater risk of wrist pain, re-injury and progressive degenerative changes in both wrists had he not had the fractures. His condition had stabilised. He was mildly disabled; however, his employment options had probably been significantly restricted and he was not encouraged to seek heavy labouring roles.
106 Mr Maloney reported in May 2018, having first seen the plaintiff on 16 September 2016.
107 The plaintiff explained to Mr Maloney that after the initial surgery, twice he had attempted to return to work, but on the second time with a new employer he was not considered suitable, as he was unable to work at a sufficient speed, dexterity and strength because of his ongoing symptoms, which appeared symmetrical on both wrists.
108 The plaintiff told Mr Maloney that he had a constant dull ache on the ulnar aspect of both wrists and a general feeling that they were weak and he had not been able to gain full strength since the initial surgery.
109 Review on 13 October 2016 with bilateral MRI scan showed irregularity of the TFCC, as expected, with the report showing both wrists having bilateral tears of the TFCC.
110 On 24 November 2016, Mr Maloney removed the plate in the plaintiff’s left wrist and carried out a wrist arthroscopy and TFCC repair.
111 Given the rapid progress on that side post-operatively, the plaintiff considered, and consented to a right wrist arthroscopy and removal of the internal fixation plate which was carried out in March 2017.
112 On review one week after that surgery, the plaintiff was comfortable, which was a significant improvement compared to his surgery on the left side, undertaken a year earlier. He continued with hand therapy and was reviewed on 18 April 2017, six weeks post-surgery. His range of motion was virtually complete and strength was improving. The plaintiff had an appointment a month later to consider a clearance for full duties in several months’ time, but Mr Maloney had not seen him since.
113 Mr Maloney advised that the plaintiff had had satisfactory outcomes from the sequential surgical treatment undertaken by him. He thought the plaintiff’s prognosis was good. He noted the right wrist intraarticular step at the radiolunate junction was potentially a question mark regarding prognosis, but to date, that had not been a clinical concern.
114 At that stage, Mr Maloney thought it was reasonable that the plaintiff’s recovery post-surgery would have stabilised. Although he had not seen the plaintiff since April 2017, there had certainly been no concern from the hand therapist’s point of view about a failure to obtain full recovery. Mr Maloney was not sure about any ongoing incapacity, but would be reasonably confident there was very little ongoing incapacity.
The Plaintiff’s medico-legal evidence
115 The Medical Panel, on 7 December 2018, found the plaintiff had a 14 per cent whole person impairment resulting from the accepted right and left wrist injury.
116 The Panel concluded the plaintiff was suffering from ongoing restricted wrist and forearm range of motion bilaterally and reduced left upper extremity grip strength following bilateral fractures treated surgically.
117 Dr David Kennedy, sports physician, examined the plaintiff in January 2019.
118 The plaintiff then complained of intermittent aching in the wrist joints, for which he took Nurofen. He had restricted movement, particularly in the left wrist, and lacked strength in both. He was then slowly getting back to playing basketball, field hockey and cricket, but not to full capacity.
119 The plaintiff told Dr Kennedy that he lasted about two months on his return to the first defendant and he later tried working with a new employer, where he lasted about twelve months, but was not able to continue working under a joint agreement because of problems with his speed of work and dexterity. He then worked for Brad Turner Designs for about three months, but could not do the work required.
120 Dr Kennedy thought the plaintiff had the capacity to perform modified occupational duties that avoided repetitive and strenuous movements of his distal forearm, wrists and hands under load or stress. These restrictions had also affected some domestic, social and recreational activities, but the plaintiff was slowly getting back to playing basketball, hockey and cricket, but not back to his full capacity.
121 Dr Kennedy thought the plaintiff had an increased risk of developing osteoarthritis in his wrists due to his incident injury and particularly with the noted step intraarticularly at the right radiolunate junction, which may result in significant osteoarthritic changes post traumatically in the right wrist.
122 Dr Kennedy noted the plaintiff had made a decision after several attempts at returning to his pre-injury work as a carpenter and builder, that he lacked the necessary speed, dexterity and strength to perform repetitive upper limb activities as required as a carpenter. He noted, over the previous year, the plaintiff had worked as a delivery driver, delivering furniture and doing some house removal work.
123 Mr Damian Ireland, hand surgeon, examined the plaintiff on behalf of the defendants in October 2019.
124 In terms of post-accident work, Mr Ireland noted the plaintiff had a period of splinting for six months, and physiotherapy. He was not able to return to work as a carpenter and was dismissed from his injury employer in February 2015. He returned to work as a carpenter in April that year and continued in that capacity for a year before he was dismissed, as he was not able to work at normal speed and efficiency, due to existing wrist symptoms.
125 The plaintiff was out of work for about another two months before he resumed work as an apprentice carpenter with another employer in June 2016, but could only last three months for the same reasons.
126 Mr Ireland noted the subsequent surgery and the plaintiff’s attempts to return to work thereafter, and commencing with his current employer in February 2018, where he was able to work with assistance.
127 On examination, the plaintiff complained of bilateral wrist pain of equal severity, which was circumferential. He had a constant dull ache in both wrists, aggravated by the use of the wrists, including heavy lifting and gripping.
128 Mr Ireland described a healed 8-centimetre surgical scar on the volar and radial aspect of the wrist, which extended to the wrist flexion crease. It was non-tender, non-adherent and non-hypertrophic. There was a 2-centimetre elliptical scar over the dorsal aspect of the distal radial ulnar joint and barely detectable arthroscopy scars on the dorsal and radial aspect.
129 Examination of the left wrist revealed a similar healed surgical scar of the same length and healed dorsal arthroscopy scars.
130 Mr Ireland diagnosed dysfunction of both wrists following intraarticular fracture of the distal radius and ulnar styloid process, treated surgically.
131 Mr Ireland noted the plaintiff believed he was able to do his current job indefinitely, notwithstanding his continuing bilateral wrist symptoms. The plaintiff was currently engaged in employment, working casually at a light manual job between fifteen and thirty hours a week.
132 Mr Ireland thought the prognosis for any further improvement was poor and, moreover, it was likely that the symptoms of the wrist will slowly deteriorate with increasing discomfort, and range of motion and grip strength as the arthritic process progressed.
133 Mr John Buntine, hand surgeon, examined the plaintiff in January 2020.
134 The plaintiff then complained of pain and weakness of both hands and wrists. Pain was more on the right side. He said he disliked the appearance of the volnar scars on both wrists and that the right wrist scar was mildly tender.
135 The plaintiff said he coped well with his present work and should be able to work full hours if the work was available, but that he was sure he could not have continued his apprenticeship as a carpenter, nor could he presently work as one.
136 The plaintiff told Mr Buntine he had resumed playing cricket for a local team weekly and that the main difficulty he experienced was pain at times while batting. He said he attended for basketball weekly, but did not always play, and that over the past two years he had been playing hockey, but hitting the ball was jarring his wrists.
137 Mr Buntine noted that the tears of both triangular fibrocartilage complexes had healed reasonably satisfactorily, however, there was a worrying step in the articular surface of the right wrist joint, both hand grips remained appreciably weaker than would be normal for a fit man of the plaintiff’s age and, on balance, osteoarthritic changes will slowly develop on the right side.
138 Mr Buntine thought the present condition of both wrists was as good as could be reasonably hoped for, following the severe comminuted fracture on the right and the moderately severe fracture on the left. No treatment was presently required and any progression of osteoarthritic change, especially on the right, would be expected to take place slowly.
139 Mr Buntine thought the plaintiff’s judgment that his wrists were not good enough for him to undertake the ordinary work of a carpenter was soundly based, especially as his belief had been confirmed by the symptoms he continues to experience while performing carpentry to assist with his father’s second self-employed job.
140 As the plaintiff presently relies on help to do the most physically demanding aspects of furniture delivery work and is not troubled by wrists when driving, it would be reasonably expected he would be able to continue this type of work for a long time; however, it seemed definite that his earnings would be significantly less than if he were now employed as an experienced carpenter, and Mr Buntine’s impression was that the plaintiff would have had the necessary perseverance to provide reliable services as a carpenter if he had not fallen from the ladder.
141 Mr Buntine believed the plaintiff’s capacity for work was for him to continue his present work as a furniture delivery driver, as he has been able to rely on assistance to undertake the most vigorous and repetitive required tasks. The plaintiff had told him he would be presently able to work full time in this capacity, which judgment Mr Buntine believed was correct.
142 Mr Buntine concluded there was a substantial risk of development of osteoarthritis affecting the right wrist and the appreciably lesser risk of development of that affecting the left.
Wage rates
143 Mandy Morgan, human resources consultant from Flexi Personnel, provided an earnings report, detailing the earnings for a fully qualified carpenter from 6 February 2017 year onwards on an hourly, weekly and annual basis.
144 According to the Construction, Forestry, Mining and Energy Union (“CFMEU”) Agreement 2016 to 2019, the following wages apply for a fully qualified carpenter:
| March 2017 | ||
| Gross hourly rate $33.34 | Gross weekly rate $1,560.24 | Gross annual wage $81,132.48 |
| March 2018 | ||
| Gross hourly rate $45.51 | Gross weekly wage $1,638.36 | Gross annual wage $85,194.72 |
| March 2019 | ||
| Gross hourly rate $47.79 | Gross weekly wage $1,720.44 | Gross annual wage $89.462.88 |
145 According to which detailed the weekly earnings of occupations by age group, inclusive of overtime earned and allowances paid, but not superannuation (derived from the ABS), the average salary for a carpenter in Victoria is:
| August 2017 | ||
| Gross hourly rate $29.81 | Gross weekly rate $1,133.00 | Gross annual wage $51,916 |
| August 2018 | ||
| Gross hourly rate $35.13 | Gross weekly wage $1,335 | Gross annual wage $69,420 |
| Average salary for a carpenter in Victoria - 24 June 2019 ( | ||
| Gross hourly rate $40.77 | Gross weekly wage $1,549.26 | Gross annual wage $80,561.20 |
The Defendant’s lay evidence
146 Travis Gill, director of the first defendant, swore an affidavit on 28 January 2020 and a supplementary affidavit on 31 January 2020.
147 The plaintiff was employed by the first defendant as an apprentice carpenter from 8 October 2012 to 20 February 2015, when Mr Gill was running the first defendant.
148 The first defendant provided services, including constructing house frames, external and internal locks up and fixes such as hanging doors, fixing skirting boards and architraves. Clients were usually large building companies who subcontracted their work to the first defendant.
149 The plaintiff was engaged through a registered training organisation and did his studies at TAFE. At one point, the first defendant had up to four apprentices and three qualified carpenters.
150 When the plaintiff commenced his employment, Mr Gill inducted him and trained him in how to use various tools safely, and there was considerable training in relation to ladders.
151 At work, the plaintiff struggled to meet standards. Initially, he was inexperienced, as he was being trained, which was understandable, however, he did not progress in his training, and failed to meet standards, let alone provide good quality work. He was not able to properly complete simple tasks, like installing a fire extinguisher on the wall. Mr Gill recalled the plaintiff making mistake after mistake, like drilling holes in the wrong tiles. It got to the point where he had to counsel the plaintiff and he could recall sitting down with him, giving him verbal warnings.
152 Mr Gill remembered telling the plaintiff many times that his workmanship was a reflection on Mr Gill and the first defendant’s reputation, and it could mean the first defendant not getting more work. He recalled the plaintiff being nonchalant when told this.
153 In his 2012 performance review, the plaintiff scored 74/140, 53 per cent, and the following year 55/140, 39 per cent. During that review, Mr Gill noted “Jack ... needs to set himself higher standards at all times in all aspect of works required” and “needs to work harder in this area by pushing himself harder to get the set tasks done faster and correctly”.
154 The plaintiff’s performance did not improve, and by 2014, when he was a third-year apprentice, his work was still not up to standard, and on one particular occasion, the work failed the inspection and Mr Gill had to redo the work, which was a bad reflection on the first defendant.
155 In February 2014, the plaintiff was issued a written warning for bringing unauthorised persons to the worksite.
156 After the incident, the plaintiff was off work for a month or two and came back on light duties for a few weeks, before resuming normal duties. Mr Gill gave him as much time as he needed, and was checking on him regularly. Initially, he got the plaintiff to do work closer to Bendigo and to assist others, rather than doing the work himself. He tried to help the plaintiff right through the whole process and it was not terribly long before he was ready to resume normal duties.
157 At that stage, the plaintiff was still having difficulties with the quality of his work. Mr Gill had an issue with the plaintiff’s work pace, specifically, he was not able to think ahead and plan ahead, and that meant he was not as efficient as he could have been.
158 In the 2014 review, the plaintiff scored 48/140, 34 per cent, at which time Mr Gill commented “… it would be expected that both his quality and productivity would be at a much higher standard”. He also noted the plaintiff was at a stage of his apprenticeship that he needed to give great thought in his desire to become a qualified carpenter and/or builder. He should have the leadership skills to teach others less experienced and not rely on other team members’ knowledge or skills to be able to complete tasks. Considering there was just over a year left on his apprenticeship to go, it would not be foreseeable for the first defendant to be able to sign him off as a competent carpenter ready to take on jobs solo.
159 Mr Gill noted the plaintiff had been given many verbal warnings about the quality and amount of work achieved, and OHS issues in relation to use of power tools. Sadly, performance reviews were decreasing rather than improving. Unfortunately, if the work continued that way, the first defendant would have no choice but to dismiss the plaintiff from his current employment.
160 Mr Gill tried to discuss with the plaintiff, perhaps being a carpenter was not the right job for him, and gave him a lot of chances.
161 In February 2015, Mr Gill terminated the plaintiff’s employment. It was not easy to do, and he gave it a lot of thought before making the decision. The plaintiff’s employment was terminated by letter dated 7 February 2015.
162 In his subsequent affidavit, Mr Gill referred again to the plaintiff’s 2014 review. He confirmed that review was in respect of the whole of the 2014 calendar year, save the period the plaintiff was off work after his injuries. The concerns that were expressed by Mr Gill in respect of the plaintiff’s performance were those he already had prior to the incident.
163 Paul McKenzie, owner of PKM Builders (“PKM”), swore an affidavit on 31 January this year.
164 Mr McKenzie was aware the plaintiff suffered injury to his wrists with the first defendant. When he started with PKM, Mr McKenzie observed the plaintiff’s mood was low and they worked together to improve this and his overall skill and performance.
165 Mr McKenzie observed that the plaintiff made good progress and improvement for six months after he started working, however, his work standard then started to slip back to what it had been when he first started. This was disappointing, considering the plaintiff was someone who had nearly completed his apprenticeship.
166 The plaintiff’s work standard was such that large contractors were often calling Mr McKenzie to go back and repair or complete the work that the plaintiff was supposed to have done. He was costing money and wasting materials, and damaging PKM’s reputation with work that was not up to scratch.
167 The final straw was when the plaintiff made three attempts at installing cupboard doors. That had nothing to do with his injured wrists or speed. That was about his accuracy and ability to do his work properly.
168 Mr McKenzie called the plaintiff in for a discussion in an attempt to shake up his performance. He asked the plaintiff whether he was still interested in doing this work, because he seemed to have lost interest in it. At the end of the discussion, the plaintiff decided to resign.
169 Mr McKenzie knew that after the plaintiff left PKM, he went to work for another carpenter for a short period before selling all his tools to Mr McKenzie’s former employees.
The Defendant’s medico-legal evidence
170 Mr Murray Stapleton, plastic and reconstructive surgeon, carried out an AMA Assessment in August 2018.
171 In terms of current status, Mr Stapleton noted the scars on the flexor surface of both wrists had settled, to the extent they were not tender. The plaintiff did not have scarring which interfered with his activities of daily living. He had a reduced range of movement, however, of both wrists, such that his grip was now diminished. He was careful of what he could lift at work, and in terms of furniture removal, he was always with someone else who could help with heavy lifting that may be required.
172 In Mr Stapleton’s view, the plaintiff continued to suffer from the result of his fractured wrists. The prognosis was that the plaintiff had reached maximum improvement and his condition had stabilised. He allowed a 4 per cent whole person impairment.
173 Dr Michael Baynes, occupational physician, examined the plaintiff on 25 September 2019.
174 The plaintiff noted, post-surgery, there was a slow improvement, but he was terminated by the first defendant in 2015. He worked at PKM for a year. He found the boss was accommodating, but that he was not able to carry as much weight as prior to injury, and ultimately, on agreement, he ceased work after a year because he was not up to the job. He then got work with Brad Turner again, doing carpentry work for three months, but was not able to cope and had increasing pain in his wrists, and ceased his apprenticeship.
175 The plaintiff told Dr Baynes of problems working at George Weston Foods and also Pickering Transport, delivering Coke products. He then obtained work with his current employer in February 2018 and was working fifteen to twenty hours a week and coping quite well.
176 On examination, the plaintiff advised of similar symptoms in both wrists. In the right, he had pain mainly over the anterior wrist, but occasionally into the posterior aspect, and movement was limited, particularly in terms of flexion and ulnar deviation. In the left, he also had pain in the anterior and posterior aspects, and, again, decreased range of flexion and ulnar deviation. Grip strength was okay, but he found his hands fatigued a bit.
177 The plaintiff advised he enjoyed playing sport and enjoyed playing competition basketball, and also cricket during the summer, being mainly a bowler, and also played hockey in the winter. He told Dr Baynes he got soreness in his wrists during the games.
178 Dr Baynes believed the plaintiff was fit for full-time suitable employment, noting his current job, in which he was coping quite well, but still had some pain. He thought the plaintiff would be able to undertake this type of work full time.
179 Dr Baynes believed the roles identified by IPAR in February 2017 would be appropriate on a full-time basis; however, he did not believe work as a carpenter would be appropriate on a full-time basis and would likely increase the plaintiff’s pain symptoms, considering he is still restricted in terms of heavy lifting and jarring across the wrists, and range of wrist movement.
180 Dr Baynes believed the plaintiff’s prognosis was relatively good, however, it was likely he would continue to have some pain associated with both wrists, particularly with any jarring or repetitive forceful actions across the wrists. Ultimately, he believed the plaintiff would develop osteoarthritis in the wrists given the extension of the fracture into the joint spaces.
181 Mr Ireland emailed the defendants’ solicitors on 30 January 2020.
182 Mr Ireland noted the plaintiff was currently working fifteen to thirty hours a week as a furniture removalist with the assistance of a co-worker. He was not able to do this work unassisted. He was capable of doing this work full time under these conditions. He was capable of similar appropriate work, with the following restrictions:
· no repetitive wrist movements
· no work requiring either wrist in a position of forced extension; and
· a single weight lifting limit of 10 kilograms.
Vocational evidence
183 IPAR provided a 130-week vocational assessment report on 7 February 2017. The following suitable employment options were assessed as potentially suitable for the plaintiff:
(i) carpenter - $1,052 (median weekly full-time income);
(ii) traffic controller, $32.42 to $40.61 an hour;
(iii) retail sales assistant, $800 (median weekly full-time income);
(iv) courier delivery driver, $990 (median weekly full-time income); and
(v) bar worker, $825 (median weekly full-time income).
184 The wage rate for a carpenter in Bendigo, according to as at 24 June 2019, was $40.68 an hour.
Findings
185 There was no issue in this case as to the nature of the plaintiff’s injury – a severely comminuted right wrist fracture and a moderately comminuted fracture of the left – both treated surgically on two occasions.[61]
[61]T78
186 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[62]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[62](2010) 31 VR 1 at paragraph [12]
187 There was no attack on the plaintiff’s credit by counsel for the defendants. Counsel for the plaintiff submitted the plaintiff was a witness of truth – a submission I totally accept.[63]
[63]T78
188 Further, it was conceded by counsel for the defendants that if was accepted, as a result of his wrist impairment, the plaintiff had lost his trade as carpenter, that would be a serious consequence in terms of pain and suffering.[64]
[64]T11
189 Submissions were made by both counsel on this issue.
190 Counsel for the defendants submitted that the lay evidence on the defendants’ behalf made the position clear that it was not the plaintiff’s wrists that they were concerned, that were causing his problems with his work. Mr Gill made it clear the plaintiff had issues pre injury and Mr McKenzie considered the problem was not, so far as he could see, to do with the injuries and was to do with the efficiency of the plaintiff’s work. Further, “to be fair”, the plaintiff himself concedes there were other things going on at that time as well as any wrist problems.[65]
[65]T70
191 Whilst it was conceded the only evidence was the plaintiff’s as to why he left Brad Turner’s employ, counsel for the defendants submitted the question that still had to be answered was whether the plaintiff would have completed his apprenticeship as a carpenter absent this injury?[66]
[66]T71
192 Counsel conceded that the medical evidence was to the effect that the plaintiff could not work as a carpenter, but asked how does that evidence demonstrate he would have continued anyway? Did he have the aptitude? Did he have the capacity to continue through his apprenticeship?[67]
[67]T71
193 Counsel for the defendants would not argue if it was accepted the plaintiff was keen to continue with Brad Turner, because that was the evidence. It was submitted, however, that that was less than compelling evidence and it had to be weighed against the evidence of Mr Gill and Mr McKenzie.[68]
[68]T72
194 Counsel for the defendants commended Mr Gill’s evidence, submitting he was a “multiple employee gentleman” who, it could be inferred, was experienced in the trade, knew what he was doing, and how to handle apprentices. It is not clear whether Mr McKenzie had taken on an apprentice, but both deponents made it clear that, as far as they were concerned, this was not a wrist problem, and there is no medical evidence contemporaneously to indicate it was.[69]
[69]T73
195 Counsel for the plaintiff submitted that the plaintiff would have completed his apprenticeship in October 2016. It should be accepted that this would have been the case and he would have become qualified but for his injuries.[70]
[70]T79
196 Even when his employment was terminated by the first defendant, the plaintiff attempted work with PKM Builders in March 2015, where he stayed for a year, and later for Brad Turner, where he remained for two months until June 2016. These jobs were obviously in an attempt, and consistent with, his evidence to complete his apprenticeship. Clearly, there was disharmony between the plaintiff and the first defendant probably before, but more particularly after, his injury.[71]
[71]T79
197 It was submitted even if the plaintiff’s employment was terminated by the first defendant in absence of him suffering his injury because he was “no good”, probably he would have gone on to pursue his apprenticeship elsewhere. That is confirmed, because even with his injuries, he did so. It just defies logic that there really is any cogent evidence to suggest that, absent his wrist injuries, the plaintiff would not have completed his apprenticeship.[72]
[72]T79
198 It was submitted that the Court should find, consistent with the medical evidence, that the plaintiff had difficulty undertaking his work as an apprentice carpenter after his injuries, as Dr Snow reported in July 2015 and February the following year.[73]
[73]T80
199 It was submitted that if it was a “beauty contest” between Mr McKenzie and the evidence from Dr Snow, the treating general practitioner who took this history on 25 July 2015, coupled with the plaintiff’s sworn evidence, it should be accepted the plaintiff was in fact having difficulty working as a carpenter, and quite frankly not surprisingly, having gone to Mr Maloney who, within six months, told him he needed bilateral wrist surgery. Mr Maloney received a history of the plaintiff having problems at work with his wrists, and then undertook the two procedures. It was unsurprising that the plaintiff had difficulty working as an apprentice given the pathology that existed and the necessity for the treatment.[74]
[74]T81
200 But for the injury, the plaintiff would have completed his carpentry apprenticeship and that was his intention. All medical evidence supports his inability to do so. Not only that, but he is restricted, in that he cannot perform heavy repetitive work generally, as all the doctors opined.[75]
[75]T82
201 Taking into account all the evidence, I am satisfied that as a result of his wrist injuries, the plaintiff was unable to complete his apprenticeship. Clearly, Mr Gill had some issues with the plaintiff’s work pre incident, but thereafter the plaintiff persevered with great difficulty, having little time off, a short period of light duties working wearing a cast and then straight back to normal duties with which he struggled, as Dr Snow confirmed.
202 Following termination of that employment, the plaintiff then tried to complete his apprenticeship, first with Mr McKenzie and, finally, with Mr Turner. I accept it was the plaintiff’s intention, in taking these jobs, to finish what was left of his apprenticeship but he was simply unable to do so as a result of his wrist injuries. All examiners agree, because of his injuries, the plaintiff is not fit to work as a carpenter.
203 As counsel for the defendants conceded, whilst the plaintiff was not complaining of wrist problems to his doctor during these three jobs, the Court was entitled to infer he had an ongoing wrist problem. Clearly, this problem was significant, leading to specialist referral in mid 2016 and further surgery later that year and in early 2017. The fact the plaintiff did not seek medical assistance earlier is indicative of his motivation and desire to complete his apprenticeship as soon as possible.
Applicable principles regarding loss of earning capacity
204 The relevant principles applicable to this application involving a worker under 26 are set out in State of New South Wales v Moss:[76]
[76][2000] NSWCA 133 (“Moss”) at paragraph [71]
“…. Secondly, strictly the issue does not turn on a comparison between what money the plaintiff would have earned apart from the injury and what money the plaintiff will earn after the injury. The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed (1961) 105 CLR 549 at 566 per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities. Luntz, Assessment of Damages for Personal Injury and Death, 3rd ed, para [1.9.18], said:
‘it is not necessary for the plaintiff to establish the future loss with the same degree of precision as the present and past loss … The court is really being asked to estimate as best it can the future effect of the injuries from which the plaintiff has been proved to be suffering as a result of the defendant’s wrongful act.’
In Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 639 Brennan and Dawson JJ said: “the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history.” They approved Lord Diplock’s statement in Mallett v McMonagle [1970] AC 166 at 176: “in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing would or could have happened and reflect those chances, whether or not they are more or less than even, in the amount of damages …”. The majority (Deane, Gaudron and McHugh JJ) in Malec v J C Hutton Pty Ltd said at 643 that when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring in a range from just above the speculative to just below the certain. The inquiry - the process of estimation of possibilities - is thus an imprecise and indeterminate one to be carried out within very broad parameters. The trier of fact may have to form conclusions on “slender materials”: Callaghan v Wm C Lynch Pty Ltd [1962] NSWR 871 at 877 per Evatt CJ, Herron and Sugerman JJ. That language, unlike the reference to permitting “guess work or speculation” elsewhere in that judgment, was not criticised in Ivkovic v Australian Iron & Steel Ltd [1963] SR (NSW) 598 at 607 per Manning J. However, Menzies J said that sometimes the assessment of damages involves “guess work rather than estimation”: Jones v Schiffman (1971) 124 CLR 303 at 308; see also Linsell v Robson [1976] 1 NSWLR 249 at 259 per Mahoney JA; Chaplin v Hicks [1911] 2 KB 786 at 792 per Vaughan Williams LJ. Lord Diplock described the factors underlying the assessment of damages for diminished earning capacity as “matters of prophecy or judicial guesses” in Paul v Rendell (1981) 34 ALR 569 at 578. The English position was summarised thus by Lloyd LJ in Foster v Tyne and Wear County Council [1986] 1 All ER 567 at 570:
‘when it comes to estimating loss of earning capacity, there is no such thing as a conventional approach; there is no rule of thumb which can be applied. It would be so much easier if there were. But there is not. In each case the trial judge has to do his best to assess the plaintiff’s handicap, as an existing disability, by reference to what may happen in the future. As has been said so often, that is necessarily a matter of speculation; it is necessarily a matter of weighing up risks and chances in all the circumstances of a particular case. The very fact that the approach must necessarily be so speculative means, of course, that the occasions on which this court will feel justified in interfering with a judge’s assessment will be few and far between, for there is no established range or standard against which to measure the judge’s award.’”
205 Section 325(e) (ii) of the Act provides when a worker is under twenty-six years of age at the date of injury, he must establish that at the date of the hearing, he has a loss of earning capacity of forty per cent or more. Further, he must establish, that he will, after the date of the hearing, continue to have a permanent loss of earning capacity which will be productive of a financial loss of forty per cent or more.
206 When one looks at the figures for a carpenter, counsel for the defendants submitted about $80,000 is a fair figure on the basis of what carpenters in this habitat are actually earning.
207 Counsel for the defendants submitted it should be borne in mind that there is no evidence put before the Court from anyone in the trade as to what carpenters are actually earning in Bendigo. Rather, the choice has been to submit a document with CFMEU wage rates. There is no evidence before the Court that if the plaintiff worked in the Bendigo area he would be receiving those rates from any employer, and there is no evidence as to what a self-employed carpenter would be earning. These printouts have simply been reprinted by Flexi Personnel.[77]
[77]T68
208 In any event, there has to be some sort of median figure and, had the plaintiff continued his apprenticeship, it was submitted $80,000 was the appropriate amount when you looked at all the figures.[78] It is fair to suggest that had the plaintiff continued with his apprenticeship and qualified as a young carpenter, he would be earning about $40 an hour on a gross basis.
[78]T68
209 It was completely wrong, as the Court said in Moss,[79] that capacity be measured by a maximum. It was conceded that $80,000 was a fair figure for the long term. It was not to the actual “top of the tree”.
[79]ibid
210 It was submitted the question is much more global in this case, and that Moss and County Court authorities make it clear that that is how it is to be approached, and the plaintiff’s maximum “without injury” earning capacity is $80,000 – depending on whether it is accepted he would have finished his apprenticeship in any event.[80]
[80]T70
211 In opening, whilst the Court “was not shacked to the formula”, counsel for the plaintiff submitted the “without injury” earnings figure was between $80,000 and $89,000. With the higher figure, the threshold was over $1,000.[81]
[81]T82
212 In my view, taking into account the principles in Moss and the limited evidence before the Court, $80,000 is the appropriate figure, as counsel for the defendants conceded.
Has the Plaintiff suffered the requisite loss?
213 Counsel for the defendants submitted, even if it was accepted the plaintiff had lost his trade because of his injury, he had not suffered the requisite loss in circumstances where the “without injury” earnings figure was $80,000.[82]
[82]T74
214 It was submitted that there is evidence of the capacity the plaintiff had exercised so far in his young life; that is, part-time work at Little Green Truck in a reduced capacity which, on the medical evidence, he says he has not tried but would be prepared to. Mr Buntine thought the plaintiff could do his current duties full time, as did Mr Ireland, and “pretty much” Dr Baynes.
215 It was submitted that, on that basis, working thirty-eight hours at the current rate of $25 per hour, the plaintiff would earn about $950 per week, which was about the threshold forty per cent.[83]
[83]T75
216 It was submitted that the medical evidence was unanimous and the question then becomes one of, if the position is the plaintiff can work full time doing this work, which is not light and at least moderately heavy, what other work of that nature was he also capable of doing? It was not just restricted to his current job, which he does not know, because he has not tried. He is only a young man who may well be capable on the possibilities and in applying the Moss-type situation of a variety of other work full time, such as truck driver or courier driver, jobs which are around.[84]
[84]T76
217 It is incumbent on the plaintiff to show that he is not capable of earning more than 40 per cent, having regard to that potential capacity. It was submitted that the Court just could not be satisfied that the differential between what the current full-time work he would be doing would be and the carpentry work that he otherwise would have been doing, comes to a permanent loss of 40 per cent.[85]
[85]T76
218 Counsel for the defendants posed the question – “Who knows?” The plaintiff may well be moulded into other jobs. He has VCAL, so it is not as if he lacks education. He does not know about his future, and that is not his fault. It was submitted that the current differential by no means necessarily demonstrates the permanent situation.[86]
[86]T76
219 Further, it was submitted the plaintiff was fit for a broad range of work activities. His sporting and recreational activities do speak to his capacity to perform daily activities at least, and to perform a broad range of work activities. At the moment, the plaintiff is a young man who was playing sport all through the year of a reasonably strenuous nature. He is bowling between five and ten overs a game for fourteen games over summer. The other activities all require wrist movements. It was submitted that it was ridiculous to say they do not, and the plaintiff is working and capable of working full time as a furniture removalist.[87]
[87]T77
220 It was conceded that carpentry requires particular dexterity with the wrists, and if the analysis gets to that stage, then that would oust carpentry work on the basis of medical evidence and perhaps commonsense; however, it was submitted that there is a broad range of other activities that the plaintiff is fit to do and will be fit to do as he gets older.[88]
[88]T77
221 Further, when he gets older, the plaintiff will end up requiring himself to work full time even though he is happy with his good life at the moment. He quite honestly says that he does not know what is happening in the future and he will cross that bridge when he comes to it. It was submitted that when he does, the evidence is clear he will have a broad range of capacities available to him and a broad range of occupations, as Dr Baynes described.
222 In response, counsel for the plaintiff submitted post injury, the plaintiff has tried to find employment, including factory work and truck driving, which he was unable to do. He successfully looked for employment and found three jobs after his last two operations. The first two he could not do, and the third he can do with Little Green Truck.[89]
[89]T82
223 The “without injury” earnings figure of $80,000, divided by 52 is $1,538, 60 per week, 60 per cent of which is $923.[90]
[90]T83
224 If he obtained full-time work with his current employer, the plaintiff would only be paid $21 an hour, so the threshold was $798.[91]
[91]T82
225 In terms of the IPAR jobs, it was submitted the plaintiff would suffer the requisite loss working full time as a sales assistant or barista. The physical demands said to be medium to heavy in the courier driver role would be too heavy for him. Specific job prospects in the traffic controller role were noted to be unavailable.[92]
[92]T85
226 Although the plaintiff would succeed on these figures, also relevant is that there is no guarantee he is going to receive full-time employment. He might think: “Look, I’ve got sore wrists. I’ve tried to find work. I’ve found a job that’s giving me 30-odd hours a week. I don’t want to risk being out of work; I’ll work here, at his sort of 30 hours a week”.[93]
[93]T83
227 Secondly, there is a significant body of evidence to suggest the plaintiff is suffering, and is going to continue to suffer, from deteriorated osteoarthritis that will affect his wrists. This issue was specifically addressed by three of the doctors - Mr Buntine, Mr Ireland and Dr Kennedy. This is a matter which the Court is entitled to take into account when assessing loss of earning capacity.[94]
[94]T83
228 The plaintiff is not working full time now. He might not cope with it. He might not be offered it. His young wrists are likely to deteriorate in the future and affect his capacity to work.[95]
[95]T83
229 The plaintiff’s sporting activities do not alter this picture. He has been open about when he hits the ball his wrists are sore. Significantly, there is no evidence to suggest that that is inconsistent or evidence that should disentitle or change the flavour of the medical evidence. A number of doctors, including Dr Kennedy, Mr Buntine, Mr Stapleton and Dr Baynes, knew about his sporting activity and they have not queried the plaintiff’s genuineness or had a different view as to his work capacity.[96]
[96]T84
230 The endpoint was that the evidence is overwhelming in support of the proposition that the plaintiff cannot work as a carpenter. If his veracity and honesty as a witness was accepted, the fact that he has been playing sport is “neither here nor there”.[97]
[97]T84
231 Taking into account all the evidence, I am satisfied that the plaintiff has suffered the requisite loss of earning capacity of 40 per cent.
232 While the plaintiff would be prepared to try full-time work in his current job, where he works with assistance, that work has not been offered to him nor is it presently available.
233 I am not satisfied that if it was offered, the plaintiff would be able to attend on a reliable, consistent basis for the foreseeable future. In any event, working full time at $21 per hour, which is the applicable rate, he would suffer the requisite loss. Working full time in the limited suitable jobs suggested by IPAR in 2017, he would also suffer a 40 per cent loss of earning capacity.
234 Save for his current job, the plaintiff’s attempts at alternate work after the second bout of wrist surgery have been short lived and unsuccessful due to his wrist restrictions, as Dr Snow confirmed.[98]
[98]See paragraph [96] of my judgment
235 While on first glance the plaintiff’s sporting activities may suggest a greater work capacity, expert medical examiners aware of the plaintiff’s involvement have not questioned the genuineness of his ongoing restrictions and confirmed his injury-related work limitations.
236 A final very significant matter when considering the plaintiff’s work future is the prospect of arthritis in his wrists, particularly the right, where there is a worrying step in the articular surface of the right wrist, as a number of examiners have described.
237 I am satisfied that this loss is permanent, there having been no improvement in the plaintiff’s condition despite surgery, with the likely deterioration due to arthritis in later years.
238 Accordingly, I grant leave to bring proceedings for damages for pain and suffering and loss of earning capacity.
- - -
0
10
0