Murray v Transport Accident Commission

[2023] VCC 1401

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-22-04732

SCOTT MURRAY	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE ENGLISH
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2023
DATE OF JUDGMENT:	18 August 2023
CASE MAY BE CITED AS:	Murray v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2023] VCC 1401

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:              Damages – serious injury – serious long-term impairment or loss of a body function – function of the left wrist – pain and suffering – pecuniary disadvantage - range

Legislation Cited:      Transport Accident Act 1986, s93(4)(d), s19(17)(a)

Cases Cited:              Humphries and Anor v Poljak [1992] 2 VR 129; Petkovski v Galletti [1994] 1 VR 436; Hooley v Transport Accident Commission [2019] VSCA 263; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Mobilio v Balliotis & Ors [1998] 3 VR 833; Demmler v Transport Accident Commission [2018] VSCA 284

Judgment:                  Leave is granted to commence common law proceedings for the transport accident on 2 June 2017

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison KC with Mr A Hill	Slater and Gordon Lawyers
For the Defendant	Ms Catherine Kusiak	Hall & Wilcox

HER HONOUR: 

Introduction

1This is an application for leave to bring proceedings for the recovery of damages pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) by the plaintiff, Scott Murray, in respect of injuries to his left wrist sustained in a transport accident on 2 June 2017 whilst working for Blue Lion Moving Services.

2The plaintiff claims he has a “serious injury” as defined by s93(17)(a) of the Act; namely, a serious long-term impairment or loss of a body function, being the function of the left wrist and makes a claim for pain and suffering and pecuniary disadvantage.

3In the transport accident, the plaintiff, a truck jockey, was directing a truck when he became trapped between the truck’s tailgate and a wall. His left hand was knocked backwards, and his right forearm was hit by the edge of the tailgate.

4The defendant accepted the plaintiff sustained fractures in his left wrist and the cause of the injury was not in dispute.[1] The injury is variously described as “left wrist fractured distal radius and ulna”[2] and “left wrist trauma with fractures involving distal radius and carpal tunnel bones involving scaphoid and trapezoid.”[3] The plaintiff’s credit was not in dispute. The crux of the case was whether the plaintiff’s injury satisfied the serious injury threshold.

[1]        Transcript (“T”) 62

[2]        Plaintiff’s Court Book (“PCB”) 66

[3]        PCB 72

5The onus of proof is on the plaintiff. The test is, on the balance of probabilities, can the injury, when judged by comparison with other cases in the range of possible impairments and losses, be fairly described as “at least ‘very considerable” and certainly “more than significant or marked”?[4]

[4]         Humphries and Anor v Poljak [1992] 2 VR 129 at 140

6The plaintiff gave evidence and was cross-examined. He provided two affidavits in support of his application, affirmed 13 October 2021 (first affidavit) and 17 March 2023 (second affidavit). The plaintiff also relied on affidavits affirmed by Timothy Gray on 18 July 2023, Marc Shaw affirmed on 18 July 2023, and Daniel Goldsmith affirmed on 18 July 2023. The defendant relied on an affidavit by Gerry Anneveldt dated 30 June 2023.

Background

7This background information is derived from the plaintiff’s affidavits. The plaintiff is 46 years old. He lives with his partner, Marlena, and has two adult daughters from a previous relationship.

8The plaintiff was schooled until the age of 15, he was a “street kid” for a year or two and had long term issues with substance abuse.

9He has worked as a removalist for most of his career and had a number of work-related injuries and health issues. He had periods, up to years, when he has not been able to work mainly because of his mental health and other personal issues.

Issue in dispute

10The issue in this case was whether the plaintiff satisfied the burden of establishing his impairments and losses were at least very considerable and certainly more than significant and marked. The plaintiff’s case was that in determining whether the consequences of a transport injury are ‘serious’, the court must take into account the pecuniary disadvantage suffered by the plaintiff as a result of the injury. The plaintiff’s case is that the diminution of his earning capacity is the most significant consequence. Whilst there are other consequences of a domestic nature, the principal consequence is his employment situation.[5] The plaintiff’s counsel relied on Petkovski v Galletti.[6] In that case, the Appeal Division of the Supreme Court of Victoria found the claimant could work full time prior to the accident, albeit interrupted on occasions by back problems. The Court found the transport accident effectively reduced the claimants weekly working hours from over 30 to 20 hours and accepted “that such an interference with working capacity may fairly be regarded as a “serious consequence” for the applicant.”[7]

Work history

[5]        T 3

[6] [1994] 1 VR 436

[7]        Petkovski v Galletti [1994] 1 VR 436, 444

Grace Worldwide Removalists

11In 1994 the plaintiff started working with Grace Worldwide Removalists. In October 2008 he fell at work and injured his right hand and had surgery on 7 November 2008. He returned to work, initially on light duties, and then on normal duties.

12In 2010, the plaintiff’s marriage broke down and he had a shoulder dislocation. After an in-patient admission and a diagnosis of bipolar disorder, he was able to return to work on full duties.

13On 3 March 2011 the plaintiff fell off the back of a truck walking backwards carrying furniture with a co-worker and fractured his back. He had a few weeks off work and resumed on alternative duties including some office work. He struggled due to ongoing back pain and intermittent right-hand pain.[8]

[8]PCB 8

14In July 2011 the plaintiff had shoulder impingement, and on 1 August 2011 he had an ultrasound guided injection.

Period of not working June 2012 – April 2016

15In 2012 he had continuing issues with his mental health and was referred to Pine Lodge Clinic. He stopped work at Grace Worldwide in mid-June 2012, mainly because of his back.

16In February 2013 he had serious mental health issues, namely a suicide attempt and attendance by a CAT team. He was having physiotherapy for his back. In late 2014, he settled his case with Grace Worldwide Removalists regarding his back. He did not work during 2014, describing himself as, “still pretty damaged that time”.[9]

[9]        T 5

17In May 2015 the plaintiff had a flareup of his bipolar disorder and was taking Zyprexa and Avanza. He did not work in the 2015 financial year and stated he was having problems with his mobility and getting up in the morning and psychological issues too.

East Coast Van Lines

18From 19 April 2016 until 28 September 2016 the plaintiff worked as a casual with East Coast Van Lines, based in Queensland, as a jockey, although he drove a little van occasionally. The employer was an interstate removal company with a lot of work from brokers so there were lots of little jobs all the way up and down the coast and for the most part the plaintiff stated he was “off siding” in the truck on interstate trips.[10] His job involved packing, wrapping, loading and doing inventory reports, and small house removals and small jobs would be booked for the one truck.

[10]        T 7

19The plaintiff described “packing” as taking up a tea chest size carton, putting crushed paper on the bottom, then wrapping plates and putting them on the sides and then another layer of crush and then glassware and lighter things up the top.[11] “Wrapping” meant wrapping things in blankets. The cartons were loaded onto the truck using a trolley. “Inventory reports” required identifying the contents of cartons, the room that items were from, and listing the information on the cartons and making things safe for transport. It also involved checking furniture and noting the condition.[12]

[11]        T 8

[12]        T 8

20The plaintiff stated he would have been lifting because at that time he was trying to go back to work, “hoping that I’d healed enough to get back into it.”[13] He described the work as small jobs that were not overly strenuous. He was easing back into the industry after his back injury and clarified he would have been doing minimal lifting.[14] He agreed his main job was packing, wrapping and the inventory reports. At East Coast, the plaintiff described long haul trips whereby they would leave Noosa on a Monday morning, drive to Sydney, do tiny jobs along on the way there, drive to Melbourne, back to Sydney, back to Noosa and then head north to Townsville, Cairns. He said there were busy seasons at certain times of the year for example, defence moves and teachers moves during school holidays, so the availability of work fluctuated accordingly.[15]

[13]        T 9

[14]        T 9-10

[15]        T 10

21The plaintiff stated he left East Coast because they were booking bigger jobs, doing whole truckloads in Sydney, and as he had done a lot of heavy lifting for years, he started feeling he was past his prime.[16]

[16]        T 10

22He was also told by a friend who was a long-term employee at Blue Lion, that they used dollies and trolleys and there was not as much heavy lifting. He agreed that was what attracted him to going to work at Blue Lion.[17]

[17]        T 11

23In September 2016 he had an inpatient admission for his deteriorated mental health, and he was taking Zyprexa, Mirtazapine and Valium. His symptoms improved with treatment.[18]

[18]        PCB 9

Blue Lion Moving Services

24In October 2016, the plaintiff started working at Blue Lion. He drove a small van and assisted in moving furniture. In cross-examination he stated he was “packing a lot”.[19] When asked if that was his main role the plaintiff stated, “pretty much everywhere I’ve worked in removals – because I’ve been doing the packing so long, it doesn’t take long before they sort of getting me in charge of training the new people.”[20] He provided training in packing, wrapping, as well as little tricks on getting things through doorways and how to pack a truck.

[19]        T 11

[20]        T 12

25The plaintiff also did lifting at Blue Lion:

“We lifted lots of desks although they…dismantled a lot of the desks. Like we’d move them to a certain area, then they’d have the tops dismantled, and then they were put onto A frame trolleys, and they’d be pushed through the lifts…They’d move whole floors out and things like that. So we had – we had special trolleys that were – were for those.”[21]

[21]        T 12

26The plaintiff would only have to move the desks a few metres before they were dismantled. The heaviest thing he would have to lift would vary, every now and then there might be a large credenza or a sideboard but generally they would go on to dollies or a piano trolley. Per office job of 500 items, he estimated there would be at least two or three heavy items on a job.[22]

[22]        T 13

27The plaintiff described packing up whole floors of desks with partitions whereby the keyboards were unplugged, the monitors labelled and putting them in plastic bags and in the special trolley and then unloading them at the other end. The plaintiff estimated he would do heavy lifting a few times a week at Blue Lion before his injury, for example, a boardroom table made of hardwood, “they’d be about the worst.”[23] This would be a few times a week with at least three or four people helping. This would be physically lifted onto a trolley or a dolly and then pushed down the hallway to the lift where another crew would take them down the lift and another crew would load them onto the truck. He might have to physically lift without the assistance of a trolley or dolly, but “not for long distances, we didn’t carry them for long distances.”[24]

[23]        T 14

[24]        T 14-15

28In his first affidavit, the plaintiff stated he coped well with his work duties at Blue Lion. He earned to the end of June 2017 $43,546, gross, an annual equivalent of about $64,700 gross.[25] He was employed on a casual basis and his weekly earnings varied considerably. Whilst working as a truck jockey for Blue Lion on 2 June 2017 he had his transport accident, which is the subject of this case. He finished working at Blue Lion in early July 2017. He stated he had a dispute with his manager and was struggling to cope with his work.[26]

[25]        PCB 9

[26]        PCB 10

29In the plaintiff’s second affidavit he stated prior to his left wrist injury:

“…I was coping well with my work duties at Blue Lion Moving Services which included lifting and manoeuvring boxes, and lifting sofas, tables and filing cabinets, often with a co-worker. I was able to lift at least 30 to 35 kg by myself. I had some back and right hand pain but they did not stop me performing the heavier lifting.”[27]

[27]        PCB 13-14

Period not working - 2018

30In February 2018 the plaintiff was medically investigated for seizures and was advised not to drive for six months.[28] He agreed he had some difficulties with his drug use around this time as well. He also was charged with drug driving and his driver’s license was cancelled for 12 months.[29] During this time he did some work on his father’s farm for a few months. He also did a snake catching course.

[28]T 15

[29]T 16

RJ Hill & SE Hill

31In April 2019, the plaintiff started working at RJ Hill & SE Hill (“RJ Hill”). In his affidavit he stated his left hand and wrist symptoms were aggravated by lifting and carrying furniture.[30] His duties there comprised of packing, wrapping and carrying light things.[31] He worked with two other guys who were bodybuilders. The light things he would carry would be things like dining chairs and couch cushions and occasional tables. The plaintiff was taken to a clinical note by Dr Knapp dated 18 July 2019.[32] which stated, “history: low back pain, radiates down into left thigh, chronic, working 2 to 3 days a week doing removal which exacerbates back, worse since going back to work.” Whilst the plaintiff could not recall, he said his back left him at less than 100% capacity and agreed, “it limited the things that I could do.”[33]

[30]PCB 10

[31]T 20

[32]        Defendant’s Court Book (“DCB”) 114

[33]        T 21

32When it was put to the plaintiff that at this point in July 2019, the plaintiff was not having problems with his left wrist, he responded that “nearly every part of my body aches…everything aches…my knees and my ankles and my hips…”. [34]

[34]T 21

33In his second affidavit the plaintiff stated he worked at RJ Hill on a casual basis between 8 April 2019 and 3 October 2019 and earned $7,293 gross. He stated, “My earnings were low because they only had limited suitable duties for me.”[35]

[35]        PCB 14

34The plaintiff left RJ Hill on 3 October 2019 and moved back to Melbourne where his children live as he wanted to be around for them. He also wanted to get out of furniture removals and give gold prospecting a go. He stated he had been trying to find something else to do other than removal work for the last 10 years.[36] Just as he tried his luck on the Victorian goldfields as a gold prospector, the COVID-19 pandemic hit. During the pandemic he would visit his elderly grandmother who lived near the goldfields and do some chores for her like mopping and leaf blowing.

[36]T 22-23

Formby Logistics

35In June 2020 the plaintiff started work with Formby Logistics. He worked as an order picker, picking boxes and items of furniture which he loaded onto containers. In cross-examination, he describes picking and packing items of furniture into containers. The furniture was cartonised, meaning packaged in boxes. The boxes were pushed onto a trolley and taken to the container where they were loaded. He would also “put blankets around stuff sometimes”.[37]

[37]T 29

36The statement annexed to the affidavit from Gerry Anneveldt Executive General Manager at Formby Logistics stated the plaintiff commenced work at Formby Logistics on 18 June 2020 as a casual, became full-time on 1 October 2020 for two months and ceased work there on 2 December 2020.[38]

[38]DCB 137

37It was put to the plaintiff he had been doing packing and wrapping work throughout his career. The plaintiff stated that packing and wrapping is his “sort of niche” and that he was very good at it. He agreed that it was his niche since before his left wrist injury in 2017.[39]

[39]T 29-30

38Mr Anneveldt in his statement annexed to his affidavit stated that whilst the plaintiff was at Formby Logistics, he would handle furniture weighing up to 100kg and that he would lift items weighing up to 25kg to 30kg.[40] The plaintiff agreed and said that the furniture weighing up to 100kg would be manoeuvred on a trolley.[41] The plaintiff stated his duties varied, sometimes he would be order picking for example, light boxes of potato chips and stack them up on a pallet which he would shrink wrap.

[40]        PCB 137

[41]        T 30-31

39On 5 October 2020, whilst working at Formby Logistics the plaintiff aggravated his left wrist when he tried to pull open a bent rusty door and jarred his wrist.[42] This set him back a few months. He agreed that prior to this incident, although his left wrist hurt, he could manage his duties.[43]

[42]        T 31-32

[43]        T 32

40Although the plaintiff was taken to the records of his general practitioner dated 8 July 2020 where there was no mention of his prior sore left wrist, he stated he always had problems with his left wrist at the time, it just would not have been at the top of his priorities.[44] When he attended his general practitioner after aggravating his wrist on 5 October 2020, the general practitioner record states, “at work today, and while opening container, acute left wrist pain. No pain prior to this injury…”.[45] The plaintiff stated he couldn’t understand how the doctor had possibly written that, when he had told him he had a previous injury.[46] The consultation was with Dr Jessica Castles and the plaintiff agreed he could not remember this attendance.

[44]        T 32

[45]        DCB 94

[46]        T 33

41Despite the absence of a record in the general practitioner’s notes, the plaintiff stated that whilst he worked at Formby Logistics, he always had concerns with his left wrist.[47]

[47]        T 34

42Mr Anneveldt stated the plaintiff did not “display any restrictions in his physical capacity” and that “he was physically able to fulfill the requirements of the role.”[48] He noted towards the end of his employment there was a “shift” in him which he stated was “psychological”, and he took some days off.[49]

[48]        DCB 137-138

[49]        DCB 138

43The plaintiff in his affidavit stated, from 18 June 2020 to 2 December 2020 he earned $20,304 gross at Formby Logistics. He stated he “was struggling to cope due to left wrist pain and restriction and this limited my earnings.”[50]

[50]        PCB 14

44The plaintiff stated he left Formby Logistics as his marriage ended, which coincided with the Queensland border re-opening, so he moved back to his family in Queensland.

Work during 2021 and 2022

45In 2021, the plaintiff had some months when he was unfit for work due to his bipolar disorder. These were from 4 March 2021 to 4 June 2021 as well as 22 October 2021 to early January 2022. The plaintiff stated that every year or two he has an episode involving his mental health.[51]

[51]        T 36

46During April 2021 to June 2021 the plaintiff worked for AWX Labour Hire and earned $2,158 gross as a landscape labourer.[52] He stated he was not able to do heavier work, such as pulling out pickets.[53] From 5 January 2022 to 30 June 2022 the plaintiff worked for Mr Movee Removals and earned $14,137 gross.[54] In his affidavit he stated his earnings were reduced because he could not perform a lot of the work. Younger workers helped him with the heavier items, and he was mainly packing things into boxes, using his right hand and arm as much as possible to limit the stress on his left wrist.[55]

[52]        PCB 14

[53]        PCB 14

[54]        PCB 14

[55]        PCB 14-15

Best Deal Removalists

47The plaintiff has worked at his current employer, Best Deal for nearly 12 months. In his affidavit he states he does lighter duties like wrapping items and packing them into boxes, which he can lift and carry. He states he continues to do “mainly lighter forms of removalist work and predominantly with my right hand and arm.”[56] The company does residential removals as well as contract work for the Department of Education for the police.[57] Best Deal has between eight and 12 staff and the number goes up over Christmas when more labourers are hired.[58]

[56]        PCB 15-16

[57]        T 37

[58]        T 39

48The plaintiff is employed as an offsider which is the same sort of work he was doing at East Coast Van Lines. This involves wrapping and packing.[59] The company offers an all-inclusive removal service which includes the packing and unpacking, “They do every single sort of part of it.”[60] He agreed this was not a position that had been made up for him, and he works with another worker who packs most of the time. The plaintiff also completes inventory condition reports which requires placing a sticker on each item and listing every little discrepancy on the condition.[61] The plaintiff agreed this was almost exactly the same as the tasks he had been doing for example, at East Coast Van Lines.[62] He also does some of the training of other staff in packing and wrapping.

[59]        T 37-38

[60]        T 38

[61]        T 39

[62]        T 39

49The plaintiff only moves light boxes which he will place on a trolley and push with one hand. He can use one hand and one foot to push the trolley.[63] He does not move heavy boxes such as book cartons, although sometimes he pushes trolleys that have furniture on them. In re-examination, he was asked why he would not use two hands on the trolley and he stated, “I’ve been doing it for 30 years. It’s not necessary, it’s second nature to me, it’s just the way I grab it.” One hand is on the trolley, the other hand is resting on top of the box.[64]

[63]        T 40

[64]        T 56

50In his second affidavit, the plaintiff stated, “My employers know me, know the extent of my injury, and help me as much as possible. Despite that, the repetitive nature of my work duties make it a daily struggle for me.”[65]

[65]        PCB 16

51He agreed he works 3 to 5 days a week, and stated last week was the first week he worked five days for a couple of months.[66] Two recent payslips were put to him. The first of which was for the pay period 3 July to 9 July 2023 when he worked 37.50 hours a week. The plaintiff stated he thought that was the week he went to Wagga Wagga on a two-day trip.[67] The plaintiff explained it “will be a lot of travel time, this isn’t actually like working time.”[68] The travel component means the plaintiff finds his role at Best Deal easier than working for a mainstream company. He agreed the amount of travel involved was like the travel he did with East Coast Van Lines where he worked in 2016. The second payslip put to him was for the following week where he worked 38.5 hours.

[66]        T 40-41

[67]        T 43

[68]        T 43

52In re-examination, he was taken to two other payslips which showed from period 19 June 2023 to 25 June 2023 he worked 13 hours during that week, and from 26 June 2023 to 2 July 2023 he worked 25.5 hours for the week.

53Over Christmas, work was busy and the plaintiff did country work. An example the plaintiff gave was, leaving at 4am with truck to Wodonga, packing up a whole house and then travelling back in the afternoon. He stated some of those days were 18 hour days, but he might be packing for four and a half or five hours.[69]

[69]        T 44-45

54In his second affidavit, the plaintiff stated in the financial year to 7 March 2023 he has earned $43,504 gross which is an annual equivalent of $63,516 gross.[70]

[70]        PCB 16

55The plaintiff agreed he might take a day off or turn down work if his arm is feeling a bit sore if he has overdone it, “like twisted it through a doorway or something”.[71] If there is no space in the work schedule for him to have a day off, instead he might be sent on a smaller job and be swapped over with another crew.

[71]        T 45

56He stated he does not take days off if his back is playing up, stating “I did years ago but no, it doesn’t affect me that much now.”[72]

[72]        T 46

Defendant’s submissions

Haphazard employment history

57Counsel submitted prior to the wrist injury in 2017, the plaintiff was out of work from 2012. In 2014 and 2015 he was receiving Newstart and in 2016 he started work with East Coast Van Lines. This was because of his back injury, his mental health and substance abuse issues. After his wrist injury, the same issues regarding his mental health and substance use arose when he was out of work in 2018 and the effect of the 12 months period when he lost his licence. In 2021 he had flare ups of his bipolar disorder which caused him to be out of work.

Duties before and after the injury

58Counsel compared the similarities between his work at East Coast Van Lines and his role at Best Deal. The plaintiff’s role at East Coast Van Lines in 2016 involved lots of little jobs up and down the coast. He was an ‘off-sider’ doing interstate work. His job description at Best Deal is as an ‘off-sider.’ At East Coast Van Lines, he was packing, wrapping and doing inventories which is the same work he is doing at Best Deal. For example, at East Coast Van Lines he would travel from Noosa to Sydney, and at Best Deal he travels from Melbourne to Wagga Wagga or Wodonga or Mildura. His hours vary at Best Deal and increase over Christmas, which is also similar to East Coast Van Lines. He is doing minimal lifting in his current role with Best Deal, which is similar to his role at East Coast. At Blue Lion, the heaviest work he did was lifting a boardroom table a few times a week with other people.

59Counsel submitted that the plaintiff’s pain does not limit his employment, such as the hours he can work when viewed against his pre-injury employment history and his unrelated comorbidities. His pain is controlled by medication and the pain does not impact on his hobbies, social or recreational pursuits or sleep.

Medical records

60In 2020, there is no reference in the general practitioner’s records to the plaintiff reporting his left wrist pain. When he has the workplace incident on 5 October 2020, it is recorded he had no prior injury to his left wrist.

Time of life

61In his evidence, the plaintiff stated he would have reduced his heavy lifting at this stage of his career. He has wanted to get out of removalist work for many years and stated everything hurt. It is unlikely he would still be doing heavy physical work at this stage of career, regardless of the 2017 wrist injury.

‘Niche’ role

62There is no evidence to support the plaintiff has a special ‘niche’ packing and wrapping role because of his wrist injury. Packing is his speciality, and this was the case before his left wrist injury. The packing and wrapping service is offered by the employer, as do all removalist companies and he has a colleague in the same team.

Financial remuneration

63Counsel submitted there are discrepancies in the financial evidence. There is no end of financial year tax return for 2023. Based on a payslip ending 8 March 2023,[73] the plaintiff’s year-to-date earnings are $30,984 (35 weeks). If annualised, this equates to $45,899. Counsel submitted this should be contrasted with the plaintiff stating in his second affidavit that for the financial year ending 2023 he has made an annual equivalent of $63,516 gross.[74] The plaintiff’s hours varied from week to week. He has failed to discharge his onus in relation to financial disadvantage.

[73]        DCB 149

[74]        PCB 16

64The defendant submitted the plaintiff had failed to demonstrate any financial disadvantage as a consequence of his left wrist injury. If he has, the financial disadvantage is minimal compared to his earnings at Blue Lion, when considered in the context of him not being in a steady regular employment prior to his wrist injury.

Pain and suffering

65The plaintiff’s accounts of pain are inconsistent and have changed from constant in his first affidavit to variable in his second affidavit, and he stated sometimes when he doesn’t think about his wrist, he does not notice the pain. The pain is well controlled with Lyrica. He takes Voltaren intermittently, his treatment of his one physiotherapy appointment is minimal. He has a splint which he chooses to wear, rather than being medically recommended.

66The affidavits refer to no impact on his hobbies, social or recreational pursuits, and no reference to any impact on his sleep.

67The defendant’s counsel submitted the consequences, whilst not trivial, when compared with other cases in the range, do not meet the test for serious injury.

Plaintiff’s submissions

Work capacity

68Counsel for the plaintiff compared the plaintiff’s work capacity before he had his wrist injury and his capacity after he had his wrist injury. Whilst he did have an impaired capacity because of his back injury, he worked at Grace Removalists for a decade and now has the additional problem of his left wrist injury.

69Whilst counsel conceded the work the plaintiff did for East Coast Van Lines in 2016 was similar to the packing work he is currently doing at Best Deal, he stated at East Coast, he “did trips down to Melbourne or Sydney and they would pick things up and drop things off all the way down.” He contrasted that to a trip to Mildura, doing one load and coming back.

70Counsel referred to the plaintiff’s affidavit where he stated “…prior to my left wrist injury I was coping well with my work duties at Blue Lion Moving Services which included lifting and manoeuvring boxes, and lifting sofas, tables and filing cabinets, often with a co-worker. I was able to lift at least 30-35kg by myself. I had some back and right-hand pain but they did not stop me performing the heavier lifting.”[75] The plaintiff was cross-examined about using a trolley to move boardroom tables made of hardwood and taking them to a lift.

[75]        PCB 13-14

Financial remuneration

71Counsel, referring to the defendant’s financial summary, submitted that in 2017 the plaintiff earned $47,477.[76] This is a gross figure.

[76]        T 75.  It appears from the defendant’s financial summary the figure is $48,106 excluding allowances,

72Plaintiff’s counsel disputed the defendant annualising the plaintiff’s March 2023 income to $45,000 when the amount of work fluctuates and it is busier at Christmas. Counsel stated “So, the overwhelming probability is we’re certainly never going to get to $47,000 this year or this financial year 2023. And he’d be very lucky to get to $40,000. We would suspect he might get to $35,000 or something like that.”[77] He submitted “$15 000 a year is a significant consequence. It's an overwhelmingly important consequence.”[78]

[77]        T 76

[78]        T 76

73Counsel submitted the plaintiff worked for RJ Hill from 1 July 2019 to 3 October 2019 and he earned $3,925, and his earnings were low because they only had limited suitable duties for him. This works out at approximately $300 a week, so “these are very modest earnings post his hand injury.”[79] Further, he struggled with the work at Formby Logistics.

[79]        T 77

74It was submitted the reduction in earnings for a man who is a very modest earner is a very clear consequence that is of great significance for him in terms of his life.

75Plaintiff’s counsel relied on Petkovski v Galletti,[80] stating this case was a classic example. In that case, the evidence established, before the accident, the applicant was able to work fulltime,  and “While the evidence of economic loss is skimpy, to say the least, and the evidence is imprecise as to the normal working hours, it can be safely inferred that they must have totalled significantly more than 30 per week; the accident has effectively reduced them to 20…such an interference with working capacity may fairly be regarded as a “serious consequence” for the applicant.”[81] Counsel referred to evidence that the plaintiff lost work because of his wrist injury, and the affidavits in support by his co-workers and his boss who work with him, noting the evidence is unchallenged, “that he has time off and asks for days off when he’s having trouble with his wrist and it’s flared up.”[82]

[80] [1994] 1 VR 436

[81]        Petkovski v Galletti [1994] 1 VR 436, 444.

[82]        T 79

Other consequences

76He is on Lyrica for pain which is heavy duty, and this has been prescribed showing he has a very genuine need for it. He also uses Voltaren intermittently because of side effects and Voltaren gel. Further, he wears a splint, and has developed tennis elbow in his right elbow which Dr Thomas opines is the direct result of the left wrist injury and his reduced capacity for anything requiring use of the left wrist. He “loads up the right hand in preference and therefore has developed a lateral epicondylitis from this.”[83]

[83]        PCB 67

Is the injury a serious injury?

Pecuniary disadvantage

77Plaintiff’s counsel conceded the plaintiff had an impaired work capacity because of his back prior to his wrist injury. In 1994, he commenced working with Grace Worldwide Removalists and in 2008 he tripped injuring his right hand. Following surgery, he was able to resume normal duties. On 3 March 2011 the plaintiff fell off the back of a truck and fractured his back for which he had a few weeks off and resumed alternate duties. His second affidavit acknowledges he continues “to suffer from intermittent low back pain which may prevent me from doing the heaviest of removal duties.”[84] He worked for Grace Worldwide Removalists for about 18 years. He has now been employed with his current employer, Best Deal for about 12 months. Plaintiff’s counsel submitted the periods of unemployment should be disregarded when comparing his pre-injury work capacity.

[84]        PCB 17

78The pecuniary disadvantage submission by plaintiff’s counsel compared the plaintiff’s earnings for financial year ending 2017 of $47,477 gross, with the plaintiff’s financial year ending 2023 submitting he would be lucky to earn $40,000 but more like $35,000. Plaintiff’s counsel submitted that for a man who is a ‘pretty modest earner’, $15,000 is a significant consequence.[85]

[85]        T 76

79However, the plaintiff’s second affidavit states, “In the financial year to 7 March 2023 I have earned $45,504 gross, an annual equivalent of $63,516 gross.”[86] He notes it was a particularly busy Christmas/New Year period and he did a lot of country work.

[86]        PCB 16

80The plaintiff’s counsel’s submission is that the plaintiff has sustained a loss of earnings of $15,000 between 2017 and 2023. Firstly, $47,477 (the plaintiff’s 2017 earnings) less $35,000 (plaintiff’s counsel’s estimate of his 2023 earnings) is $12,477. Further, this submission ignores the plaintiff’s affidavit which states in 2023 he will earn $63,516 gross (an annual equivalent). This is $16,039 more than his 2017 income of $47,477.

81I note the fact a plaintiff is earning more at the time of the application compared to the date of the injury does not prevent a conclusion of serious injury. In Hooley v Transport Accident Commission [2019] VSCA 263 an applicant suffered a permanent and very significant injury at a young age which would prevent the applicant engaging in significant aspects of their chosen profession. In those circumstances the Court held “it is not to the point” that the applicant was earning more at the time of the hearing than at the time of the injury.[87]

[87]        Hooley v Transport Accident Commission [2019] VSCA 263 at paragraph [46]

82I turn to the tendered payslips as the most accurate record of the plaintiff’s earnings in 2023. The Financial Summary (Exhibit D-A) prepared by the defendant and adopted by the plaintiff does not include financial year ending 2023.

83The plaintiff’s payslip from Best Deal for the period to 7 March 2023, shows a year-to-date income of $30,894.00 (net).[88] The plaintiff’s payslip from Best Deal to 25 June 2023, (Exhibit P-1) puts his year-to-date income as $42,601.50 (net). As 25 June 2023 is six days prior to the end of 2023 financial year this is the most accurate record of his yearly earnings.

[88]        DCB 149

84I accept the payslips as the best evidence regarding the plaintiff’s earnings for the end of financial year 2023.

85The financial records do not support the plaintiff’s counsel’s submission the plaintiff  has sustained a $15,000 financial disadvantage for his 2023 end of financial year earnings, when compared with his earnings in 2017 prior to his injury.

Hours and duties pre and post injury

86As noted, some of the plaintiff’s 2023 payslips from Best Deal were tendered.

87From 1 March 2023 to 7 March 2023, he worked 19.50 hours.[89] From 19 June 2023 to 25 June 2023, he worked 13 hours.[90] From 26 June 2023 to 2 July 2023, he worked 25.50 hours.[91] From 3 July 2023 to 9 July 2023, he worked 37.50 hours.[92] From 10 July 2023 to 16 July 2023, he worked 38.50 hours.[93]

[89]        DCB 149

[90]        Exhibit P-1

[91]        Exhibit P-1

[92]        Exhibit D-A

[93]        Exhibit D-A

88With respect to his weeks at Best Deal working 37.50 hours and 38.50 hours, the plaintiff stated there was down time or travel time, so he was not doing the strenuous tasks during that time. He gave the example of a trip to Mildura which was 7 and a half hours travel and packing was 3 hours or so and the return trip was seven and a half hours.[94] He agreed his hours varied, depending on how much work was on.[95]

[94]        T 54-55

[95]        T 44

89In other jobs such as at East Coast Van Lines and R J Hill, the plaintiff agreed he was a casual and his hours would go up and down depending on the availability of the work.[96] At Formby Logistics he worked 8am to 4pm one week, and 7am to 3pm the next with no overtime.[97] He was made a full-time employee for two months between 1 October 2020 to 2 December 2020. Bar this, all his other positions in the removal industry have been casual and the hours vary depending on the season and work availability. 

[96]        T 10

[97]        T 31

90The defendant’s counsel submitted the plaintiff’s duties with East Coast Van Lines were similar to his current duties with Best Deal. As such his pain does not limit his employment in terms of his hours as compared with his pre-injury employment history. The plaintiff’s counsel conceded there were similarities in the plaintiff’s role with both companies. The plaintiff was packing, wrapping and doing inventories.

91This is in contrast with his role at Blue Lion where, whilst he was doing a lot of packing, he was also moving credenzas and sideboards as well as heavy items such as boardroom tables. In his affidavit he stated he was coping well with his work duties at Blue Lion which included lifting and manoeuvring boxes, and lifting sofas, tables and filing cabinets.

92In his second affidavit, the plaintiff stated he is doing lighter types of duties at Best Deal and that he tries to use his left hand as little as possible and do most of the work with his right hand. He stated his employers know the state of his injury and help him as much as possible.[98]

[98]        PCB 16

93Timothy Gray, the Branch Manager of Best Deal detailed the plaintiff’s work duties at Best Deal in his affidavit.[99] These include light tasks, completing Inventory Condition Reports, wrapping and packing, and if he is on a removal job he is sent with two others so he does not have to do heavy lifting and carrying. The plaintiff works three to four days a week, sometimes five days a week.[100] The plaintiff is taking one to two days off a fortnight due to his left wrist injury.

[99]        PCB 21

[100]      PCB 22

94This information is supported by the affidavits of co-workers, Marc Shaw and Daniel Goldsmith. Mr Shaw is the plaintiff’s supervisor at Best Deal. He described the packing and inventory work the plaintiff does at Best Deal as well as “running the packing crew”. He also stated “The packing is much lighter work. It involves stuff like kitchen plates or smaller items that need to be packed into boxes for transportation. I nevertheless still see Scott in pain when he is doing these lighter packing roles.”[101]

[101]      PCB 25

95In terms of his hours, he estimated the plaintiff would have three days off in any given month because of his sore wrist. Noting he is a hard worker and loyal employee, he stated, “Despite only getting him to do lighter jobs, he still needs to take time off from work and he has said to me on a number of occasions that he is taking a day off to rest his left wrist.”[102]

[102]      PCB 26

96The plaintiff’s fellow employee Daniel Goldsmith works as a driver and removalist with Best Deal. He works directly with the plaintiff and sees him “grimacing in pain”.[103] He stated, “Scott maybe works 3 or 4 days a week on average. He takes time off because of his left wrist problem and does not work continuously.”[104] The plaintiff packs up kitchens, bedrooms linen, bedding and cushions so the other workers can concentrate on the heavy furniture. He stated the plaintiff is reliable and wants and needs to work but that “When he says his left wrist is causing too much pain, he says that he is going to take a day off.”[105]

[103]      PCB 27

[104]      PCB 28

[105]      PCB 28

97In his report dated 31 March 2023 Dr Slesenger refers to the plaintiff working at “Best Deal Removalist where he started working five days a week, 4 hours a day, commencing work at 7 am.”[106] Dr Damon Thomas, plastic and reconstructive surgeon in a report dated 28 February 2023 referred to the plaintiff as a casual worker, therefore his hours are never full time and the amount of work depends on how busy the industry is.[107]

[106]      PCB 61

[107]      PCB 67

98The plaintiff agreed he worked 3 to 4 days per week,[108] and I accept the evidence that he works 3 or 4 days a week, or sometimes five days a week.[109]

[108]      T 40

[109]      T 40-41

99In this case although the plaintiff sometimes works five days a week, he also takes days off when he can to recover from the pain from time to time and turn down work[110], which is supported by the affidavit of Mr Timothy Gray, the plaintiff’s branch manager at Best Deal.[111] The plaintiff’s return to work is relevant to the question whether the pain and suffering consequence of the injury is ‘serious’, but it is not determinative, and it is necessary to consider the evidence as a whole.[112] 

[110]      T 45

[111]      PCB 22

[112]      Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 at paragraph [26] (Ross AJA)

100In Stijepic v One Force Group Aust Pty Ltd & Anor,[113] the Court of Appeal stated:

“… if a worker successfully returns to alternative duties it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are serious. But, as always, the evidence as a whole must be considered.”

[113] [2009] VSCA 181 at paragraph [47] (Ashley JA and Beach AJA)

101In Haden Engineering Pty Ltd v McKinnon,[114] the President of the Court of Appeal noted “the cases recognise that some plaintiffs may be more ‘stoical’ than others,” and that the injury is not to be viewed as any less serious merely because he or she manages to remain more active than might have been expected given the level of pain. It could be said, in effect, as Justice Nettle stated in Dwyer v Calco Timbers Pty Ltd (No 2),[115] a plaintiff has been “prepared to put up with his pain and suffering and get on with his business as best he can”.[116]

[114]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [13] (Maxwell P)

[115] [2008] VSCA 260 at paragraph [3] (Nettle JA)

[116]      Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [3] (Nettle JA)

102I accept the plaintiff is hardworking. I accept his evidence about this and that of his colleagues. Whilst he has had periods off work for his mental health he has worked hard when he has been able. I also note his current workplace accommodates his injury in two ways; firstly, he takes days off when his wrist is sore. His manager Mr Gray estimates this to be one or two days a fortnight, and his supervisor Mr Shaw estimates he takes three days off a month.[117] His co-worker Mr Goldsmith estimates he works 3 or 4 days a week on average and takes time off because of his left wrist problem.[118] This evidence suggests if he works as a casual on average three or four days a week, with one or two days a fortnight off is at least a 25% reduction in his work hours. If he works four days a week and takes three days off a month that is about a 20% reduction.

[117]      PCB 26

[118]      PCB 28

103Secondly, whilst his role is not specifically curated for him, the evidence supports his employer at Best Deal modifies the nature of his duties around his left wrist injury. Although his duties are similar to his role at East Coast Van Lines, namely wrapping, packing and inventory work, at Best Deal he is accommodated by way of the specific rooms he packs (kitchen, laundry), and sometimes he is swapped onto teams with lighter jobs if he is in pain.[119] These modifications restrict his future employment options were he to leave Best Deal. The loss of opportunity to move to other employers is a component of the plaintiff’s pain and suffering.  I take into account the fact that at the age of 46, together with his low back injury, his long-term career prospects are already circumscribed. Despite that, he now has greater restrictions for future work options.

[119]      T 44

Pain and suffering

104As the main issue in this case concerned the plaintiff’s pecuniary disadvantage and whether he met the threshold for having a serious injury, I briefly consider the consequences of the pain and suffering as outlined in Haden Engineering Pty Ltd v McKinnon,[120] and the plaintiff’s experience of pain and the disabling effect of pain.

[120] [2010] VSCA 69

105In his first affidavit, the plaintiff stated after the injury, his left wrist and palm remained tender and he had reduced grip strength and movement.[121] He had difficulty holding the steering wheel to drive and a CT scan on 28 June 2017 showed small fractures in the left wrist. On 4 July 2017 he was placed in plaster below the elbow for a period of six weeks. He continues to be troubled with pain and reduced grip strength in his left wrist and hand.[122]

[121]      PCB 9

[122]      PCB 10

106When he started work with RJ Hill, his left hand and wrist were aggravated by lifting and carrying furniture, and he used to carry with his right hand and use his left elbow region for support.

107He suffered constant pain over his left wrist which radiates towards the thumb and index finger. Extending or twisting his wrist aggravates the pain. Repetitive lifting of even light items aggravates the pain.[123]

[123]      PCB 11

108His second affidavit states the pain is no longer constant, “It is variable, often depending on my level of activity.”[124] In cross-examination, the plaintiff stated he goes through times when he doesn’t have a great deal of pain and that, “I’m pretty much used to always being uncomfortable there…But…for the most part I can feel it, even when I’m not moving my hand, I can feel it.”[125] Whilst it was not constant, he stated it was “most of the time at least anyway”.[126]

[124]      PCB 16

[125]      T 48

[126]      T 49

109In addition to the impact on his ability to work, the disabling effects of his pain he described, includes pain when doing the cooking, as well as weakness and loss of strength.

110In terms of treatment for his pain, he usually takes Lyrica, one in the morning and one at night.[127] He uses Voltaren intermittently, sometimes going without when his stomach is affected, and he uses Voltaren gel topically.

[127]      T 49

111He gets a spasm in his back every couple of months and noted his last back spasm was three months ago, and he takes Diazepam for his back.[128] As noted in his second affidavit, his intermittent back pain prevents him from doing the heaviest of removal duties.

[128]      T 46

112He is also taking medication for his bipolar.[129] He had physiotherapy for his left wrist once and was given exercises to do.[130] He also wears a splint every day to keep his wrist warm, immobile and to stop it getting banged.

[129]      T 50

[130]      T 50-51

113Dr Slesenger, special occupational physician, in his supplementary medico legal report dated 31 March 2023 stated the plaintiff described pain over the base of his left thumb and the extensor surface of his left hand. He stated “He advised that the pain radiated into the forearm and he advised of restricted range of movements in his left wrist. He advised of difficulty gripping and lifting of heavier weights (more than 5 kg). The pain was aggravated by activity, particularly twisting, pushing and pulling as well as torque movements. The pain was worse in cold weather. He advised that he had become more reliant upon the right side.”[131] In his view working as a removalist was likely to lie outside the plaintiff’s capacity.[132]

[131]      PCB 59

[132]      PCB 63

Findings and reasons

114The consequences of the injury must be serious to the particular plaintiff, and the question to be asked is: “can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?”[133]

[133]See Humphries and Anor v Poljak [1992] 2 VR 129. Also see Mobilio v Balliotis & Ors [1998] 3 VR 833

115The plaintiff’s credit was not in issue. He was described as honest and genuine. He was guileless in his evidence which was at times against interest.  I accept the contents of his affidavits and his evidence in court and found the plaintiff to be credible and genuine.

116It was accepted the radiology revealed the plaintiff sustained fractures to his left wrist which was not in dispute. The contents of the medical reports tendered were not in issue.

117The plaintiff is stoic in that he continues to work. His work ethic is reflected in the comments in the medical reports he is working outside his limits,[134] and he is struggling with his job demands. This was noted in the plaintiff’s evidence. Removal work is the plaintiff’s only skill, his options for other work are minimal given his work history, disadvantaged childhood and limited schooling.

[134]      Dr Joseph Slesenger (PCB 55), Dr Devinder Garewal (PCB 72)

118The plaintiff’s counsel relied on Petkovski v Galletti.[135] In that case, the court found the applicant worked significantly more than 30 hours a week which because of his injury was reduced to 20 hours a week. This was a serious consequence for him.

[135] [1994] 1 VR 436

119In this case the plaintiff has lost approximately 20-25% of his ability to work in a highly casualised industry and holds his current job there, but for the grace of his accommodating employer. His first affidavit refers to his inability to find suitable work, indicating the rarity of his current position. In Demmler v Transport Accident Commission [2018] VSCA 284 at paragraph [64] the Court of Appeal noted “the risk to the applicant’s current employment…is a significant matter which fell to be taken into account in assessing the consequences of the applicant’s injury.”

120His income has increased in 2023 as compared with 2017, is partly attributable to him remaining with the one employer for 12 months. In Hooley v Transport Accident Commission [2019] VSCA 263, although the applicant in that case was much younger than the plaintiff, the Court of Appeal stated at [46]:

“He has already been precluded from engaging in significant aspects of work for which he was otherwise reasonably suited. That preclusion is ongoing and will persist in the decades to come. It is not to the point to say that he is now earning more than he was at the time he was injured or that he presently has a position which permits him to delegate to others tasks that he himself cannot do without restriction.”

121The plaintiff has had a peripatetic work history due to a combination of factors including mental health and drug issues. He is now precluded by his wrist injury from significant aspects of his work as a removalist which is accommodated by his current employer. His lack of flexibility in relation to future employment, though already qualified, together with his loss of, a minimum of 20% of his working hours is a serious consequence although it has not resulted in a loss of income at the time of this application. I find he has sustained pecuniary disadvantage.

122Although his pain is now variable and dependent on his activity, he is prescribed Lyrica which he takes daily. This is a powerful pain killer available only on prescription. In my view to take this every day is a very significant consequence.

123I consider the consequences of his pain and suffering and pecuniary disadvantage collectively.

124It is also a relevant consideration to look at the likely period the consequences will be experienced, and I note at age 46 the plaintiff is still in relatively young middle age.[136]

[136]      See Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph [43]

125The medical evidence supports the plaintiff’s reduced capacity is long term.

126I am satisfied on the balance of probabilities the combined consequences of the injury, particularly his pecuniary disadvantage, together with his ongoing pain and suffering consequences are serious to the plaintiff when judged by comparison with other cases in the range of possible impairments and losses and are at least “very considerable” and certainly more than “significant” or “marked”.

127Leave is granted to the plaintiff to commence common law proceedings for the injury he suffered in the transport accident on 2 June 2017.

- - -

           not $47,477.