Pickering v Impact Drilling Pty Ltd
[2013] VCC 992
•9 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-01009
| NOEL ANDREW PICKERING | Plaintiff |
| v | |
| IMPACT DRILLING PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 August 2013 | |
DATE OF JUDGMENT: | 9 August 2013 | |
CASE MAY BE CITED AS: | Pickering v Impact Drilling Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 992 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – back injury – loss of earning capacity damages only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (38)(e) and (f)
Cases Cited: Bell v Indigo Shire Council [2008] VCC 473
Judgment: Leave granted to the plaintiff to bring common law proceedings for pecuniary loss damages in respect to injury suffered by him on or about 30 August 2007 during the course of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hoare-Lacy SC with Mr R C Forsyth | Patrick Noonan & Co |
| For the Defendant | Mr B R McKenzie | Lander & Rogers |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on or about 30 August 2007 due to the nature of his employment.
2 The plaintiff seeks leave to bring proceedings for economic loss only, as I have been informed that a certificate has already been granted with respect to pain and suffering damages.
3 That being the case, the sole issue between the parties is whether or not the plaintiff has discharged the onus of proof with respect to the formula contained in s134AB(38)(e) and (f) of the Act.
4 The plaintiff was born in 1962 and was originally employed as a driller for the defendant. In approximately April of 2007, he was promoted from that role to occupational health and safety manager for the defendant.
5 On or about Tuesday, 30 October 2007, the plaintiff spent ten-and-a-half hours in a cabin of a vehicle and, upon alighting from same, suffered from a painful and stiff back.
6 A claim was made for compensation which was ultimately accepted. At Epworth Hospital Casualty the plaintiff was seen by orthopaedic surgeon, Mr Michael Johnson, who informed the plaintiff that he required immediate surgery for a large L3-4 prolapse, leading to surgery by way of laminectomy at L3, on 31 October 2007.
7 The plaintiff had significant problems after surgery, the extent of which is not in issue in this proceeding.
8 Ultimately, the defendant made the plaintiff redundant in or about May of 2008 and thereafter he found work teaching at the Box Hill TAFE as an industry training consultant. He commenced thereat in May of 2008 on a casual basis and then became a permanent employee.
9 In his first affidavit, sworn 14 October 2010, he swore that his gross earnings for the financial year ending 30 June 2010 were $57,728. This matter originally came on for hearing in June of last year and it is common ground that in the intermediate time the wages have now increased to a figure of $81,487.54. The parties in this matter have agreed that that figure is the appropriate figure to be taken into account under s134AB(38)(e)(i) and (38)(f)(i).
10 The defendant further submits that to that sum should be added a figure described as an allowance, which was referred to in the taxation returns between June 2010 and June of 2013. There was some argument as to whether or not those figures should become part of the assessed income from personal exertion according to the formula, but in any event, in my view, the figure for the period 30 June 2013 ought to be added to the aforementioned figure, leaving a total of $81,605.54 pursuant to s134AB(38)(f)(i).
11 It was not in issue between the parties that this represented both the figure in suitable employment pursuant to ss(a) and also the figure representing what the worker was capable of earning pursuant to ss(b). The main area of dispute between the parties was the figure to be calculated pursuant ss(38)(f)(ii).
12 It was common ground that the definition of “income from personal exertion” referred to therein was the same definition contained in s6(2) of the Transport Accident Act 1986, which relevantly cites:
“income from personal exertion in relation to a person means—
(a)the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and
…
but does not include—
…
(h) any employer superannuation contribution.”
13 Counsel for both parties agreed that the extra benefits negotiated and paid to the plaintiff at the commencement of his employment, being provision of a motor vehicle, mobile phone, laptop computer and e-TAG were referrable to the word “allowances” in s6(2)(a) of the Act.
14 I note that a similar concession was made in this Court in the matter of Bell v Indigo Shire Council,[1] a decision of his Honour Judge Anderson dated 7 April 2000. I am content to rely on the joint submission of the parties for the purposes of this case.
[1][2008] VCC 473
15 A great deal of evidence was led as to the accounting with respect to those “benefits”. Defence counsel agrees that the base salary was $100,000 gross per annum and then contends that the motor vehicle allowance should be $10,800 gross, the mobile telephone allowance should be $840 per annum gross, and figures with respect to the laptop computer and the e-TAG have not been reliably proved. He has submitted that the figures put forward are consistent with the evidence given on the defendant’s behalf by Mina Atalla in her affidavit sworn 12 June 2012 (exhibit 1). If correct, these benefits total $11,640.
16 Crucial to the determination of this case, in my view, is the plaintiff’s evidence contained in his affidavit sworn 13 June 2012 to the effect that his contract benefits were negotiated with a Mr Robinson, whom he nominated as “Chris” but in fact whose name was “Grant”.
17 His evidence in paragraph 3C of that affidavit is to the effect that the starting figure would be $100,000 per annum plus the provision of a motor vehicle, laptop and mobile phone. He further stated he was “given to understand that if the appointment proved worthwhile, [he] would increase in the package to $125,000 plus motor vehicle, laptop and mobile phone in the next six months to a year”.
18 If this evidence was to be accepted, the plaintiff has submitted that that figure would be relevant to the figure contained in s134AB(38)(f)(ii), being income that he “was capable of earning from personal exertion … during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred”.
19 The plaintiff was methodically, persistently, but fairly, cross-examined on this topic to the extent that, in essence, it was a reconstruction, and that in fact Mr Robinson, or no other person, had indicated to him that he would receive a wage of $125,000 plus allowances.
20 At transcript 64, line 25, it was put to the plaintiff:
Q:“What I suggest to you is a couple of things. Firstly, you say that ‘I was given to understand’, that is another way of saying that you hoped that it would increase?---
A:No. That is my way of saying that Grant Robinson said to me ‘We will review you within six to 12 months and if you are doing a good job, we will put you up to $25,000’. It was an understanding that we had. I was given to understand that that would happen. There was nothing put down in writing. It is just my interpretation of that part of the conversation.”
21 The defendant has tendered in evidence five affidavits from parties associated with the defendant company, being Exhibits 1 to 5. Mr Grant Robinson, in his affidavit sworn 13 March 2013, swore, in paragraph 4 therein, that in relation to the paragraph of the plaintiff’s affidavit with respect to the negotiated figures, he stated:
“I have a vague recollection of meeting with the plaintiff in Sydney and of discussing the plaintiff’s role changing from that of a driller to occupational health and safety manager. To the best of my recollection, the contents of paragraphs 3B are correct. I cannot recall whether discussions relating to salary, provision of a motor vehicle, laptop or mobile phone took place. Although discussions may have taken place, I did not as claimed in sub-paragraph 3C make any offer to the plaintiff in relation to salary and non-cash benefits. As I was in the finance area and the plaintiff was in the operations area, I was not authorised to make any such offer.”
22 For the purposes of reconciling the two affidavits, I prefer the evidence of the plaintiff that a discussion did take place relating to salary, provision of a motor vehicle, laptop and mobile phone.
23 Further, the defendant relied on an affidavit of Robert Snowden sworn 14 June 2012 wherein he states that he was the supervisor of the plaintiff. Further, at paragraph 6, he states:
“In response to paragraph 3D of the affidavit of the plaintiff, it is correct that the plaintiff was provided with a motor vehicle, mobile phone and laptop computer and further, that all expenses were paid by the defendant.”
24 The deponent then goes on to dispute that the motor vehicle allowance was calculated with respect to 20 per cent of the gross salary and the relativity of personal and company use with respect to the other benefits. In paragraph 11, he swears:
“Although personal use by the plaintiff of the vehicle, mobile phone and laptop computer was permitted, no monetary allowance was specified.”
25 In conclusion, in paragraph 12 he swears:
“For the reasons above, I dispute the plaintiff’s assessment that his gross salary including benefits would have amounted to $125,000.”
(my emphasis)
26 I note that there is no specific response from any witness from the defendant about the plaintiff’s wage being increased to $125,000 plus allowances within a period of six to twelve months after commencing. It was open to the defendant to contradict this evidence by stating that at no point did any person hold out any hope of an increase in wage within the timeframe asserted, or any other timeframe.
27 The plaintiff, in my view, in the witness box was doing his best to tell the truth, although it was apparent that he was probably keen to make sure that his side of the story was clearly heard. I consider that he was honest in his recollection of the figures that were discussed and, in my view, it is normal in the course of human activity that one’s pay and benefits would stick in one’s mind when negotiating a contract of employment.
28 That being the case, and adopting the value of the benefits contended for by defence counsel without necessarily rejecting the figures put forward by the plaintiff, I find that the earnings from personal exertion consist of the sum of the two figures of $125,000 per annum, which I find the plaintiff was capable of earning within the window of opportunity provided by the subsection, plus the figure of $11,640, being a total of $136,640. Sixty per cent of that figure is $81,984, which is in excess of the figure pursuant to ss(f)(i), being $81,605.54.
29 In those circumstances, I find that the plaintiff has discharged the onus of proof with respect to s134AB(38)(e)(i) of the Act and leave will be granted to commence proceedings for pecuniary loss pursuant to s134AB(16) of the Act.
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