Papaconstantinou v Victorian WorkCover Authority
[2020] VCC 1016
•14 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05107
| ANDREW PAPACONSTANTINOU | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 June 2020 | |
DATE OF JUDGMENT: | 14 July 2020 | |
CASE MAY BE CITED AS: | Papaconstantinou v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1016 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Road Safety (Vehicles) Regulations 2009
Cases Cited:De Bono v VWA [2019] VSCA 85; Jones v Dunkel (1959) 101 CLR 298.
Judgment:
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith QC with Ms A Smietanka | Zaparas Lawyers |
| For the Defendant | Ms B Myers | IDP Lawyers |
HIS HONOUR:
Introduction
1 Andrew Papaconstantinou applies under s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for leave to issue a proceeding for the recovery of damages in respect of an injury suffered arising out of or in the course of his employment with Papa Service Station Pty Ltd. Specifically, there was an accident on 6 September 2014 where he injured his left hand.
2 The plaintiff asserts this injury satisfies paragraph (a) of the definition of “serious injury” in s325(1) of the Act. His application is made in respect of both pain and suffering damages and pecuniary loss damages.
3 At the start of the hearing before me, the defendant conceded the granting of leave in respect of pain and suffering damages, with the issue of leave for pecuniary loss damages contested.
4 The plaintiff is a motor mechanic and has been since about 1998. His employer is the corporate trustee of a family trust, A Papas Family Trust[1], which owns a business repairing and maintaining commercial and private motor vehicles.
[1]The plaintiff’s counsel put it another way at p 11 of the transcript.
5 The name of the corporate trustee is Papas Service Station Pty Ltd. Now, it has three directors, the plaintiff and his parents. The plaintiff was appointed a director on 10 October 2014[2]. In reality, he works in the family business. The trust is a discretionary trust[3]. I daresay this structure has taxation benefits, but it does complicate the determination of the remaining issue. The trustee may be a bare trustee acting as a conduit for money passing from the business to the beneficiaries.
[2]See Defendant’s Court Book (“DCB”) at p122.
[3]See DCB at p 131.
6 In 2014, the business operated from leased premises attached to a Caltex service station. This premise had three car bays with two hoists occupying two of the bays. The business engaged three persons, the plaintiff, his father and another motor mechanic. Each worked full-time. The business used a full-time bookkeeper who was not an employee.
7 After the accident, the business employed another motor mechanic to do mechanical work which the plaintiff previously performed. This remains the situation. The workforce now comprises the plaintiff, his father and two other motor mechanics.
8 In November 2017, the business bought a factory in Mill Park, which manufactured laminates. It paid between $1.22 and 1.25 million, financed through a loan of more than $900,000 with the balance provided by the plaintiff’s mother. After refitting and installing hoists, the business moved into these larger premises in late 2017 or early 2018. It now contained four hoists. The number of workers remained the same.
Circumstances
9The plaintiff was born in 1978. He is married with three young children. On 6 September 2014, the plaintiff injured his left hand while working on a car. For the purposes of this application, the fact, nature and circumstances of the injury are undisputed, as is the treatment received. These are set out in his first affidavit[4]. The injuries were to his index, middle and ring fingers. To the index finger, there was a fracture and dislocation; to the middle finger, amputation of the distal phalanx, fracture and dislocation; and to the ring finger, a degloving injury.
[4]Sworn 12 June 2018.
10 Since 2014, the plaintiff has lived in his present home with his family. It is mortgaged, owing between $300,000 and $360,000.
11 His father, Peter, is now 65. He is a qualified motor mechanic and auto-electrician. He still works full-time in the business but, for health reasons, does little mechanical work. In the year before the accident, the plaintiff was sharing managerial work with his father. The plaintiff now works between 50 and 60 hours per week.
12 In July 2014, the plaintiff obtained a licence to perform roadworthy inspections and issue certificates of roadworthiness. His ability to do so meant the business could expand into that area. It also meant he needed to become a director of the corporate trustee, as the licence holder needed to be a principal of the business, which he did in October 2014.
13 At the time of the accident, the company had not applied to be a vehicle testing site. In 2020, it applied but the application was returned because the plaintiff’s police checks were out of date. He has not yet reapplied because of the COVID-19 restrictions. He proposes to send a mechanic to undertake the course so that that person can become a tester. He believes the business is losing money by its inability to test. Since the licensed tester must be a principal of the business, it seems this idea might have a problem.
Before the accident
14 The business comprised the plaintiff, his father and a mechanic called George. The plaintiff had assumed a larger management role in the business as his father was moving towards retirement. The greater management role required him to close a separate business he operated, AP Engine Mounts.
15 Most of the plaintiff’s time was spent working as a mechanic even though his 2014 and 2015 tax returns described him as a manager. His salary increased in the 2014 financial year to compensate him for the closure of the business of AP Engine Mounts and his greater management role. He worked longer hours in the business.
16 The plaintiff became a director of the corporate trustee, namely, his employer. As his father headed for retirement, it was expected he would assume more of the managerial tasks of the business. He believes directorship was a recognition of his greater responsibility. He says he does not receive director’s fees or dividends. In truth, none of the directors do, probably because the trustee is a bare trustee. He does receive a salary “which represents the profitability of the business”[5]. His salary after the accident included weekly payments of compensation. Between 15 September 2014 and 3 March 2017, he was paid $164,396 before tax by way of weekly payments.
[5]Affidavit sworn 15 November 2019 at [4].
After the accident
17 After the accident, the plaintiff was off work for a while, undergoing operations. In 2014 or 2015, another mechanic was employed to do the work he had done. The cost of this mechanic is about $75,000 in all.
18 Since the accident, the plaintiff has assumed more “managerial” tasks. He describes them as directing the overall operation of the business, liaising with customers, making and taking phone calls, making bookings, preparing quotations, ordering parts, advertising (including through a website) and sponsoring sports clubs. The bookkeeping is done by the bookkeeper. He works 50 to 60 hours per week now, comprising about 70 percent administrative and about 30 percent mechanical work. The latter involves its lighter aspects, including servicing and auto-electronic work. He is able to do basic services of vehicles, remove lighter tyres, and clean tools and benches.
Tax returns
19 Part of evidence was taxation returns for the plaintiff and the trust. For the trust, the 2014, 2015, 2016, 2017 and 2018 trust returns are interesting[6]. The plaintiff’s parents are directors, with him, of the corporate trustee. The gross income of the trust has risen and fallen over those years but, overall, shows an increase from $439,517 in 2014 to $528,641 in 2018. Between 2014 and 2016, the trust shows a profit, but losses emerge in 2017 and 2018. The loss in 2018 is much greater than that in 2017 ($88,464 against $34,815). Admittedly, in 2018, there is a non-cash item (depreciation of $23,845) which, I assume, is largely depreciation on the building for there was no depreciation in the previous year.
[6]In referring to the year 2012, I am referring to financial year 2011-2012. The same applies to the other years.
20 In 2018, the trust is in a precarious financial position. Its liabilities exceed its assets by $123,251 and, more importantly for an ongoing business, its current liabilities exceed its current assets by $473,209. In 2018, the combined figure for rent and interest was $66,848, while in 2017 the rental figure is $46,977. It appears the interest on the borrowed monies is greater than the rent payable on the leased premises. The acquisition of the new premises caused a marked deterioration in the trust’s financial position. In 2016, the total assets exceeded total liabilities by $50 while in 2017, total liabilities exceeded total assets by $34,767. The position worsened in 2018.
21 When the business was profitable, the trust distributed the profit to the plaintiff’s parents. In 2012 and 2013, it was shared unequally, with the bulk going to the plaintiff’s mother, while in 2014, the profit went entirely to his father. In 2015 and 2016, it was shared equally.
22 Turning to the plaintiff’s income tax returns, in 2012, the plaintiff received a wage of $46,190 from the trust. AP Engine Mounts yielded an additional income of $6,525. In 2013, he received $42,328 and the other business yielded $497. In 2014, he received $88,200. By then, he had closed the other business and had no other source of income. In 2015, he was paid $73,092. Now he claimed a loss on a rental property as a deduction from his taxable income. In 2016, the payment was $58,608. Again, there was a loss claimed on a rental property. In 2017, his payment declined to $47,859. Again, the loss on the rental property was claimed. In 2018, his payment rose to $56,763 with the loss on the rental property claimed as a deduction.
23 By the time of the hearing, the plaintiff had not lodged his 2019 income tax return. However, he produced a draft of that return. Although a draft, I accept its accuracy. He was paid $30,098. His main deduction again was the loss on the rental property. As in his previous returns, there were other deductions. There was some cross-examination as to whether the loss on this investment property is entirely his, as opposed to that of his wife or shared. Ultimately, it proved immaterial for the purposes of this application. The material figure is $30,098.
24 The high point is $88,200, received in 2014, being the financial year before the accident. Thereafter, there is a decline to $30,098. Between 18 September 2014 and 3 March 2017, he was paid weekly payments of compensation totalling $164,396. These payments were his major source of income. Although his rental property produced an income, this was overwhelmed by the losses incurred in producing it. His tax returns for 2015, 2016 and 2017 cannot be used to gauge his after injury income, for they consist largely of his weekly payments. These payments are calculated under a statutory formula which uses the concept of “pre-injury average weekly earnings”. They provide no guidance as to the amount he could earn by personal exertion.
25 Despite the figure of $30,098, the plaintiff is not paid regularly in the sense of particular pay dates. He “withdraws” whatever the business can afford towards payment of his living expenses. This is usually fortnightly. He estimates he receives $3,000 to $4,000 per month, which is an over-estimate. I would rely on the figure in the draft return, derived from figures supplied by the bookkeeper. As to emphasise his predicament, his parents help him financially, as do his brothers. He estimates his parents contribute $10,000 per year. I do not know the amount contributed by his brothers. The other source of income for the family is the amount received by his wife through the family tax benefit, about $26,000 per year. Once he was able to save, but no longer.
26 A central aspect of the plaintiff’s application is the assertion the business needed another mechanic because of his impairment. Or put another way, without the impairment, the business would need one less mechanic.
27 There was some examination of the trust tax returns as to whether there was an extra mechanic. In 2014, salary and wages totalled $167,630 where the plaintiff received $88,200. In 2015, the corresponding figures were $148,761 and $73,092; in 2016, $143,554 and $58,608; in 2017, $155,016 and $47,859; and in 2018, $165,385 and $56,763. If one subtracts his wage from the total wages, then the amount remaining for wages, other than the plaintiff, are respectively $79,430, $75,669, $84,946, $107,157 and $108,622.
28 At some point, the plaintiff’s father was not paid a wage. He continued to help administratively but was not paid. The new mechanic was paid less than the existing mechanic, George, because of the latter’s experience and responsibility. Although in his first affidavit, he spoke of three mechanics apart from himself, that is a mistake. I am satisfied, after the accident, one more was employed and this is still the case. The figures cast doubt on the cost of that person, not his existence. I do not accept it is $75,000 per year (including expenses)[7].
[7]Affidavit sworn 12 June 2018 at [18].
Medical evidence
29 Anthony Berger is a surgeon, specialising in hand and upper limb surgery. Mr Berger started treating the plaintiff’s injuries on 27 July 2016. On 6 February 2017, he performed an osteotomy of the proximal phalanx. When last seen on 12 October 2017, there remained stiffness with flexion of the proximal interphalangeal joint. Mr Berger considered him capable of returning to most of his pre-injury duties, with some difficulty with fine manipulative tasks and heavy gripping. He thought there might be benefit from a tenolysis and contracture release.
30 Murray Stapleton is a specialist hand surgeon who examined the plaintiff on 16 August 2016 at the request of an authorised agent[8]. His report is of limited value now, for his examination occurred before Mr Berger’s surgery.
[8]Report dated 16 August 2016.
31 Joseph Slesenger is a specialist occupational physician. On 18 February 2020, he examined the plaintiff at the request of his solicitors. Owing to the impairment of his left hand, Dr Slesenger considered the plaintiff should avoid with his left hand pushing, pulling, carrying or lifting over five kilograms, prolonged gripping, turning, pushing and pulling with his left side, fine dextrous tasks and use of power tools. He believed the plaintiff could not return to his pre-injury physical duties. As to other duties, he could not say, noting that he was working in “a supported environment in a family business”. If he left this employment, Dr Slesenger felt he would have difficulty replicating his current work arrangements in an open job market.
32 John Buntine is a hand, plastic and reconstructive surgeon. On 19 February 2020, he examined the plaintiff at the request of his solicitors. He considered all of the fingers of the left hand were severely injured. In particular, the index finger had very poor flexion of its proximal interphalangeal joint, the distal interphalangeal joint of the middle finger was stiff with flexion, and there was poor sensation at the end of the finger. After noting restrictions in various activities, Mr Buntine considered the plaintiff lacked the capacity to work full-time on the “tools” as an employed mechanic. He had the capacity to work full-time as an owner and supervisor of the service station.
33 Damian Ireland specialises in the surgery of the hand. On 30 October 2019, he examined the plaintiff at the request of the defendant’s solicitors. He found no significant loss of grip strength, but the injury to the left hand left the plaintiff with an inability to lift more than 10 kilograms with that hand, and an inability to use it for fine motor movements or dextrous activities in confined spaces or when that hand is out of view.
Current position
34 During summer or when resting, the middle finger of the plaintiff’s left hand is not always painful. It worsens in winter with more stiffening. It is painful when he grips things. Although right handed, he must use both hands as a mechanic. The tip of the middle finger is numb. If he touches it too hard, he gets a “shock pain”. He cannot bend the index finger. He cannot make a fist.
35 The plaintiff now works 50 to 60 hours a week, dividing his time between 30 percent working as a mechanic and 70 percent on administrative duties. He does the lighter aspects of motor mechanic’s work. Even though others can do it, he does most of the diagnostic work using a computer. He can do basic servicing of cars, but if he has to take off a heavy tyre he calls for help. Even with lighter tyres, he will not work with for extended periods. His work as a mechanic now includes the menial task of cleaning tools and benches. However, these tasks only occupy five to ten minutes daily.
36 His administrative or managerial work involves directing the business, answering and making phone calls, preparing quotations, ordering parts and preparing invoices. The financial side of the business is left to the book keeper.
37 His father does not work as a mechanic. He oversees the decisions the plaintiff makes and questions him about them.
Legal considerations
38 To establish the loss of earning capacity consequence, the plaintiff must establish:
(a)his loss of earning capacity consequence when, judged by comparison with other cases in the range of possible impairments or losses of a body function, is fairly described as being more than significant or marked and at least very considerable (the narrative test); and
(b)he suffered a loss of earning capacity of 40 per centum or more, measured as set out in s 325(2)(f); and
(c)he would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more[9].
[9]De Bono v VWA [2019] VSCA 85 at [47].
39 It is worthwhile setting out s 325(2)(f):
“for the purposes of paragraph (e)(i), a worker’s loss of earning capacity is to be measured by comparing –
(i)the worker’s gross income from personal exertion (expressed at an annual rate) which the worker is –
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment –
as at that date, whichever is the greater, and –
(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred.”
40 The “date” is the date of the hearing for leave.
Discussion
41 This application raises the problem of an injured person who outwardly is self-employed, but is treated as a worker in the context of the modern version of workers’ compensation legislation.
42 The plaintiff works in a business. It forms an asset of a trust, of which he is a beneficiary. I know nothing of the terms of the trust. He is a director of the corporate trustee of the trust. His income comes from the trust. He is paid enough to cover his living expenses. While the gross income of the trust has increased over the years, its profitability has not, becoming unprofitable in 2017 and 2018. A significant item of expense is wages. They have increased over the years while the plaintiff’s income has decreased, going from $88,200 to $30,098.
43 Why has this occurred? There are two factors: the effect of his injury and the move from rented premises to purchased premises. The plaintiff cannot perform the mechanical work he did before the injury, spending much of his time administratively. The business requires more of the mechanical side and less of the administrative and has engaged another mechanic.
44 On the evidence before me, the change in premises was unwise. It appears the interest payable on the loan is greater than the rent. The trust’s net income is diminished by depreciation. Nevertheless, notionally returning estimated amounts for interest and depreciation to the income of the trust still leaves it losing money at a significant level. I do not know whether this trustee has any reserves. These trustees are generally bare trustees without any. Even in the absence of change of premises, his income would have decreased markedly. The existence of a non-cash item like depreciation enables the business to pay the plaintiff $30,098 even though it is losing money. It has cashflow, which strikes others as sufficient to pay the plaintiff a reasonably regular amount.
The narrative test
45 Owing to his impairment, the plaintiff will lose significant income for the rest of his working life, whether as a mechanic or mechanic/administrator. I do not accept his counsel’s submission that the loss will be $60,000 to $75,000 annually over 23 to 25 years of work, totalling about $1.5 million. However, the true cumulative loss will be very large. This is very considerable for a man of 42 with a young family and significant financial commitments. I am satisfied that he answers the narrative test.
The threshold test
46 The plaintiff submitted three ways of approaching the threshold:
(a)his current gross income of $30,098 compared with “without injury” gross earnings of $99,000. That is, the $150,000 he expected to bring into the business through testing, less the $62,000 the business would pay for a replacement mechanic while he did that work;
(b)his current gross income of $30,098 compared with $88,200, being his gross income in the last financial year before the accident;
(c)his current gross income of $30,098 compared with what he received in three years after the accident by way of weekly payments of compensation coupled with the excess he earned in those years through personal exertion (an average of $5,054).
47 Two of those ways, (a) and (c), invoke the hypothetical aspects of s 325(2)(f). (b) is straightforward; it asks me to find his present gross income is the amount he now earns, and his without injury gross income is what he earned in the financial year before the injury.
48 Looking at (b), since the trust pays the plaintiff and he is a trustee, then it is said the payments are not a proper measure of his earning capacity. This contention is supported by his hours of work and the broad description of his duties (manager/technician) being the same now as they were before the accident.
49 I accept the figure of $88,200 most fairly reflects his without injury earning capacity. The figures for the three financial years before the injury show an overall increase to $88,200. In 2012, he earned $52,715. It dipped to $42,325 in 2013 and jumped to $88,200 in 2014 after closing his other business and focussing entirely on the trust’s business. The returns for 2010 and 2011 lend weight to the continuing increase in his income until 2014. I have already explained why no regard should be paid to the income in the three financial years after the injury. Accordingly, I will adopt $88,200.
50 There is no subtlety about the plaintiff. He has little knowledge of his or the trust’s tax returns. He may well be an excellent mechanic, but he shows little aptitude for financial matters. I accept his evidence that what the trust can pay him is determined by the state of the business. He would like to receive $3,000 to $4,000 per month. Overall, he does not, but whatever he receives depends on the finances of the business and that means its cash flow. It is not strictly speaking “profit” for, as the defendant pointed out, he was being paid even when the trust lost money.
51 This business cannot afford the plaintiff doing full-time administrative work or the combination he performs presently. It needs the plaintiff as an unimpaired mechanic, working full-time on mechanical duties. Any administrative duties would be added onto those mechanical duties. The restriction in his capacity as a mechanic translates into the decreased profitability of the business, primarily, through the need to employ an extra mechanic.
52 I consider the comparison caused by (b) is appropriate here. His gross earnings of $30,098 are a true reflection of his earning capacity.
53 In arriving at that conclusion, I disagree with the plaintiff’s submission that nothing turns on the purchase of new premises for the interest bill is comparable with the rent paid previously. It is not. During the year when the business left the rented premises, the combined amounts paid for rent and interest well exceeded the rent paid in the previous year.
54 The defendant submitted if the business was performing badly, it would be unlikely the trust would buy a new premise. Certainly, the business expanded, going to a larger premise with more bays and hoists. The purchase was financed by the plaintiff’s mother together with borrowings, but the profitability of the business was poor in the period leading up to the purchase. I would not draw that inference because the decision to relocate, on the available evidence, appears to have been unwise.
55 In terms of workload, I would not find that the business has the same number of employees now as there were before the accident if one includes the plaintiff’s father. His father is a mechanic, but he was in the process of retiring. The work of a motor mechanic is physically vigorous and his father was almost 60 at the time of the accident. How much his father contributed as a mechanic before the accident is vague. When asked about 2013-2014, the plaintiff thought his father was working full-time, but “not a lot” of work on the tools[10].
[10]Transcript 17.
56 If one looked at turnover, then there has not been a significant downturn following the accident, but that reflects the fact of employing an additional mechanic. The wage bill has remained largely steady, but the profitability has declined, as have the payments to the plaintiff. The cost of the relocation may be reflected in the cost of sales figure as well as the item “all other expenses”. I cannot say because those figures are not broken down as they would have been in a profit and loss statement. Even subtracting out a figure for the excess of interest over rent and the non-cash item of depreciation, this business was losing money in 2018.
57 (a) compares his present gross earnings with the “without injury” hypothetical earnings if the business expanded with the plaintiff issuing roadworthy certificates. It relies upon the expression “would have earned” or “would have been capable of earning” in s 325(2)(f)(ii). This relies on the business earning an additional $150,000 annually through issuing the certificates, with the plaintiff doing that work less the cost of employing another mechanic to do the work he would otherwise have done. This presupposes 20 such certificates a week each at $150. It also presupposes the plaintiff would have earned the entirety of the net $99,000 ($150,000 less the cost of a replacement mechanic at $62,000) and there would be no other deductions. In his first affidavit, the plaintiff said it would be too expensive to employ a mechanic with a certificate[11]. In his second affidavit, he estimated receiving four to five inquiries each day for roadworthy certificates, which were declined. The business lost $150 per certificate together with potential repair work to get a vehicle to a roadworthy condition[12].
[11]Affidavit sworn 12 June 2018 at [18].
[12]Affidavit sworn 15 November 2019 at [6].
58 This evidence is too uncertain for me to make a finding of the potential loss of income to the business. The plaintiff assumes each inquiry would result in work. He gives no reason for supposing that is so and, as far as I can see, has no previous experience in this area of work. In a competitive market, I would be surprised if all persons engaged in issuing those certificates charged the same fee for all types of motor vehicles and all inquiries were converted into the work.
59 The defendant raised the issue of additional costs if the business could issue such certificates. The plaintiff spoke of none. I would be surprised if there were none given the nature of the certification, namely, the vehicle is roadworthy. The concept of “roadworthiness” is undefined in the Road Safety Act 1986 and the regulations made under it. What amounts to roadworthiness is set out in directions given by the Secretary of the relevant department, which may vary from time to time[13]. I would be surprised if the requirements of the Secretary did not impose an ongoing cost upon the business.
[13]R 220(1) of the Road Safety (Vehicles) Regulations 2009.
60 (c) is inappropriate. To determine the “without injury” gross earnings, it relies on the weekly payments of compensation for the period of 130 weeks after the injury coupled with the amount the plaintiff earned additionally in that period. As I explained earlier, the use of a statutory formula is inappropriate for determining the gross income under paragraph (ii). The formula presupposes an incapacity for work. Generally, the amount paid by way of weekly payments bears no relationship to the earning capacity of a worker. It is calculated as a percentage of pre-injury average weekly earnings, which are calculated over a shorter period than that allowed in the paragraph.
61 Although Mr Berger and Dr Ireland express views about the usefulness of the plaintiff’s hand, I accept his evidence of the restrictions and the accuracy of his description of the work he now performs as a result. In doing so, I am disregarding the fact that the defendant conceded the issue of pain and suffering consequence and what might flow from that concession. Similarly, his limited ingestion of medicines these days is of no moment.
62 Dr Slesenger placed significant restrictions on the use of his left hand such that he could not return to his pre-injury duties, which included unrestricted mechanical duties. Dr Slesenger spoke of a “supportive” environment in the family business. I agree Dr Slesenger does not spell out why the plaintiff would have difficulty replicating his current work arrangement in the open job market, but he is an experienced specialist occupational physician. He combines medical expertise with an understanding of workplaces denied to other medical experts. I accept that opinion.
63 From what I know of the plaintiff, including listening to his evidence, I doubt he could leave this business and find employment in a purely administrative, non-mechanical, role. He has little understanding of the financial arrangements of the business. His present administrative duties involve directing the business, answering and making phone calls, ordering parts and preparing quotations and invoices. Directing this small business should be a straightforward task. He is directing himself and two mechanics. Even in this task, his father hovers, advising and supervising. I daresay his inability to dismantle vehicles would inhibit some aspects of the preparing of quotations.
64 The impairment to his hand is permanent. The plaintiff is not prepared to undergo further surgical treatment, which is understandable. On the material before me, the business is failing. If it fails, his future is bleak. The permanency of his loss of earning capacity consequence is established.
65 I am satisfied the plaintiff has now a loss of earning capacity of more than 40 per cent and will continue permanently to have a loss of earning capacity which will be productive of a financial loss of more than 40 per cent.
66 For completeness, the plaintiff, relying on Jones v Dunkel[14], raised the defendant’s failure to call the accountant or another director of the corporate trustee to negate the plaintiff’s plans for the business, the need to employ more staff, and whether the plaintiff can work beyond his self-reported capacity. The submission lacks merit. I would not expect the defendant to call either of those witnesses. First, the plaintiff bears the burden of proof. Second, it is speculative whether either would give evidence along the lines supposed.
[14](1959) 101 CLR 298.
Conclusion
67 I will grant the plaintiff leave to commence an action for the recovery of damages for pain and suffering and pecuniary loss.
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