Prevolsek v Victorian WorkCover Authority
[2023] VCC 1827
•16 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-01194
| DAVID PREVOLSEK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 September 2023 | |
DATE OF JUDGMENT: | 16 October 2023 | |
CASE MAY BE CITED AS: | Prevolsek v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1827 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious Injury – application for leave to issue proceedings to recover damages for pain and suffering and loss of earnings – left upper limb –worker under 26 at date of injury – defendant conceded pain and suffering consequences were “serious” – whether plaintiff satisfies loss of earnings test – application of common law principles
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Jarvis v Woolworths Ltd [2012] VCC 1329; State of New South Wales v Moss (2000) 54 NSWLR 536; Debono v Victorian Workcover Authority [2022] VCC 1317; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; Transport Accident Commission v Katanas (2017) 262 CLR 550; Guppy v Victorian Workcover Authority [2010] VSCA 164.
Judgment:Leave granted to the plaintiff to bring a proceeding at common law to recover damages for pain and suffering and damages for loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | John Dellios & Associates |
| For the Defendant | Mr A Middleton | Lander & Rogers |
HER HONOUR:
Introduction
1The plaintiff seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries to his upper left limb sustained in a specific incident on 8 March 2017 while working for Turbo Rigging Pty Ltd (“Turbo Rigging”) when he was aged twenty-three.
2The plaintiff was represented by Mr Valiotis of counsel and the defendant was represented by Mr Middleton of counsel.
3This application is brought pursuant to paragraph (a) of the definition of “serious injury” as that term is defined in s325(1) of the Act.
4The impairment of body function relied upon is the left upper limb.
5On 21 March 2023, the plaintiff issued an Originating Motion naming Turbo Rigging as the first defendant and the Victorian WorkCover Authority (“VWA”) as the second defendant.
6At the hearing on 21 September 2023, the parties agreed there should only be one defendant - the VWA.
7The plaintiff sought leave to amend the Originating Motion to name the VWA as the only defendant. There was no opposition to that application and leave was granted.
8At the commencement of the hearing, Mr Middleton informed the Court that the VWA accepted that the plaintiff satisfied the serious injury test for pain and suffering.
9The plaintiff conceded that he retains some capacity for alternative employment but asserts that he has established a permanent loss of 40 per cent or more.
10The question to be determined relates to the plaintiff’s residual earning capacity.
The hearing
11The hearing proceeded in the “usual way”, in that the plaintiff tendered affidavit material, comparable employee payment summaries and medical reports.
12The plaintiff relied on two affidavits which were sworn on 14 October 2022 and 20 September 2023.[1]
[1]Plaintiff Exhibit P1, Plaintiff’s Court Book (“PCB”) 5-12 and 13-16
13The defendant tendered medical reports, a vocational assessment, comparable employee payment summaries, material from post-accident employers and extracts from the Kings Park Medical Centre clinical notes.
14The plaintiff was the only witness to give viva voce evidence and be cross-examined.
15I have considered all the tendered evidence, the plaintiff’s viva voce evidence, and the oral and written submissions of counsel, but I shall only refer to the materials to the extent necessary in these reasons.
16I make the following findings:
· The plaintiff’s credit was not impugned.
· He has lost the capacity to work as a rigger and general labourer.
· He is restricted to full-time alternative employment.
· As a result of his employment restrictions, he has suffered a pecuniary loss which satisfies the statutory test.
17The application succeeds.
Legal principles
18The plaintiff was under twenty-six at the time of injury therefore common law principles apply to the assessment of loss of earning capacity and have been expressed in successive County Court decisions since Jarvis v Woolworths Ltd[2] (“Jarvis”).
[2][2012] VCC 1329
19In Jarvis, Judge Brookes referred to State of New South Wales v Moss[3] (“Moss”) in which Heydon JA identified the common law principles used to assess the loss of earning capacity of a plaintiff injured in a school accident at the age of fourteen years.[4] His Honour identified the following as relevant:
· Evidence of past economic loss is some evidence, though not conclusive evidence, of reduced earning capacity.[5]
· It is generally desirable to have precise evidence of what the plaintiff would have been likely to earn before the injury and what he is likely to earn after it.[6]
· Where a plaintiff has suffered a significantly disabling injury which affects the range and nature of the work he can perform, a court can, without specific evidence as to what other persons with that kind of disability can earn, make a judgement and assessment on a percentage basis or otherwise of the value of the lost capacity.[7]
· The compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of financial loss.[8] It is an issue of calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities and not proof of probabilities.
· The mere fact that the quantum of damage is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum.[9]
· The task of the trier of fact is to form a discretionary judgement by reference to not wholly determinate criteria within fairly wide parameters.[10]
[3](2000) 54 NSWLR 536
[4](Ibid) at paragraphs [66]-[87]
[5](Ibid) at paragraph [64]
[6](Ibid) at paragraph [66]
[7](Ibid) at paragraph [69]
[8](Ibid) at paragraph [71]
[9](Ibid) at paragraphs [72] and [74]
[10](Ibid) at paragraph [87]
20I adopt this reasoning.
21The plaintiff is not required to discharge the onus as to capacity for suitable employment found in s325(2)(g) of the Act.
22Nor is he required to establish the reasonableness of his attempts to participate in rehabilitation and retraining.
23While the income earned by the plaintiff before the injury is relevant, it is only as an evidentiary aid in assessing damages for the loss of the plaintiff’s capacity to earn income.
24It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities.
25In Malec v JC Hutton Pty Ltd (No 2),[11] Brennan and Dawson JJ approved Lord Diplock’s statement in Mallett v McMonagle
“… the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.”
[11](1990) 169 CLR 638 at 640
26When undertaking an assessment of loss of earning capacity, the Court may have regard to the probable income from personal exertion which a worker would have earned but for the injury over the worker’s probable earning life.
Background
27The plaintiff is now aged thirty.
28Prior to commencing employment with the defendant, the plaintiff worked as a sheet metal worker/labourer in Queensland. He did not obtain any formal qualifications as a sheet metal worker.
29In 2016, the plaintiff moved to Melbourne. He worked as a general labourer.
30At some unidentified stage, he obtained certificates in rigging, dogman, scissor lift, elevated work platforms and working at height.
31The plaintiff commenced employment with Turbo Rigging (“the employer”) in October 2016 as a rigger/labourer.
32On 8 March 2017 (when aged twenty-three), the plaintiff injured his wrist and left thumb while working for the employer.
33It appears the plaintiff was working on an elevated platform and was spreading purlins along beams. While doing so, a purlin which had not been placed properly, or was not properly secured, fell onto his left hand and wrist and crushed it. He attended first aid onsite and took a few days off work.
34The plaintiff returned to work and continued working with ongoing pain.
35He had some hand therapy.
36In June 2017 he had two injections to his left wrist and continued working.
37The plaintiff then suffered a further minor laceration injury to his left middle finger in July 2017.
38He took some time off work for the laceration to heal. He said he was unable to return to work because of pain in his wrist and not because of the laceration.
39He had an MRI scan and an ultrasound, and was ultimately referred to Mr David McCombe, surgeon, in September 2017.
40Mr McCombe operated on 11 April 2018. The surgery included reconstruction of the APL tendon with a tendon and nerve graft. The surgery was complicated by the fact that the plaintiff is a haemophiliac and a specialist haematologist, Dr Ali Bazargan, was called in to provide advice and assistance.
The Plaintiff as a witness
41The defendant asserted that the plaintiff’s credit was in issue, relying primarily on the content of a confidential health assessment completed by the plaintiff on or about 16 February 2022, when he was applying for a light-duties job at Bulla Park Mushrooms Pty Ltd (“Bulla Park Mushrooms”).[12]
[12]Defendant Exhibit D8, Defendant’s Court Book (“DCB’”) 149-150
42In cross-examination, the plaintiff accepted that he completed the confidential health assessment in which he disclosed that he had a previous problem with his left hand and wrist and had undergone surgery.
43The defendant relied upon the plaintiff’s answers to questions 17(d) and (f) within the confidential health assessment to underpin its assertion that the plaintiff’s credit was impugned.
44Question 17 enquired as to whether the plaintiff had a previous worker’s compensation claim, to which he answered “yes”.
45Question 17(d) asked “what residual problems do you have?”. The plaintiff answered “none”.
46Question 17 (f) asked “are there any other restrictions?”. The plaintiff answered “no”.
47In cross-examination, the plaintiff said that it was incorrect to say that he had no residual problems in his left wrist when he started work with Bulla Park Mushrooms.[13]
[13]Transcript (“T”) 21, Line (“L”) 27-29
48The plaintiff said that he must have made a mistake when answering question 17(d).[14]
[14] T21, L30 – T22, L1-3
49The fact that he completed a form in February 2022 and provided the answers he did to question 17 when applying for a light-duties job, does not impugn his credit in any way. The form must be considered in its context. The plaintiff was clearly looking for work and making every endeavour to obtain work within his capacity.
50Contrary to the defendant’s submission, I found the plaintiff to be a refreshingly honest witness who was prepared to make appropriate admissions against his interests, and either made a mistake when filing out the form or was simply trying his best to get a job.
51Accordingly, I accept with some confidence what the plaintiff said to doctors and to the Court about his ongoing consequences and restrictions.
52The plaintiff is not workshy.
53After leaving the employer he completed a traffic controller course and ultimately obtained a job as a traffic controller.[15]
[15]Plaintiff Exhibit P1, PCB 8 at paragraph [18]
54He worked as a traffic controller for approximately two weeks in September 2019. He ceased that job as he was in pain “from all of the repetitive lifting and gripping of the signage and cones”.[16]
[16]Ibid
55The plaintiff was challenged in cross-examination about the amount of repetitive lifting and gripping involved in the traffic controller job. He told the Court that on some jobs he could spend up to two hours per day setting up bollards and signs in the morning and up to two hours per day taking them down at the end of the shift.[17]
[17]T19, L5-17
56I accept the plaintiff’s evidence that he was, at times, required to spend up to four hours a day setting up and then taking down bollards and signs in the course of his work at the traffic controller.
57Such evidence is consistent with the photographs of the traffic controller’s duties contained in the Recovre report dated 28 July 2023[18] tendered by the defendant that showed a traffic controller dragging bollards behind him using both hands and unloading/loading signs onto a truck and placing signs on roadways.[19]
[18]Defendant Exhibit D4, DCB 66-99
[19] Defendant Exhibit D4, DCB 81-83
58I accept the plaintiff’s evidence that traffic control work was beyond his capacity in 2019. I find that it remains beyond his capacity.
59As mentioned earlier, the plaintiff applied for and obtained a light-duties job at Bulla Park Mushrooms in early 2022. He carried out his duties inside and was able to work in the light-duties job on a full-time basis at Bulla Park Mushrooms until September 2022.
60In September 2022, the plaintiff’s duties at Bulla Park Mushrooms were altered and he was required to perform more physical duties outside. He was unable to cope with those duties. He resigned from his employment on 13 October 2022.
61The plaintiff said, and I accept, that he is not able to return to construction work and is now restricted to light work.
62An attempt was made in cross-examination to establish that the plaintiff left employment at Bulla Park Mushrooms in October 2022 because he had been involved in a transport accident and lost his licence.
63It is clear from the evidence that the plaintiff resigned from employment at Bulla Park Mushrooms on 13 October 2022.[20]
[20]Plaintiff Exhibit P1, PCB 9 at paragraph [20]
64The plaintiff was involved in a transport accident on 25 October 2022, which is obviously after his cessation of employment.[21]
[21]Defendant Exhibit D9 – see clinical attendance on Dr Wu, 18 October 2022, noting that the plaintiff had resigned from his job the previous week, DCB 187; and further attendance on Dr Wu, 1 November 2022, confirming that the plaintiff had been involved in a transport accident on 25 October 2022, DCB 185.
65I accept the plaintiff’s evidence that his resignation had nothing to do with the subsequent transport accident.
66The plaintiff is not currently working but is actively seeking employment. He has applied for lighter work such as picker/packer but has been unable to get any interviews.
67The plaintiff accepts he has a capacity to undertake full-time light duties similar to the light work he was performing at Bulla Park Mushrooms between February 2022 and September 2022.
Plaintiff’s treating doctors’ reports
68The plaintiff relied upon material from Dr Olufemi Olutayo of Durham Road Clinic,[22] Mr McCombe of Victorian Hand Surgeons Associates[23] and Ms Leanne Graham, hand and occupational therapist.[24]
[22]Plaintiff Exhibit P2, PCB 35-36
[23]Plaintiff Exhibit P3, PCB 37-41
[24]Plaintiff Exhibit P4, PCB 46
Dr Olufemi Olutayo, general practitioner
69The only report produced by the plaintiff from Dr Olutayo is a report dated 4 August 2017, which confirmed that the plaintiff had sustained a crush injury to his left hand in February/March 2017. Dr Olutayo saw him for a subsequent work-related injury in June 2017, which was a left middle-finger laceration with a phalanx fracture. Dr Olutayo considered that the subsequent injury had resolved at the time of the report in August 2017.
Mr David McCombe, hand, plastic and reconstructive surgeon
70Mr McCombe operated on the plaintiff on 11 April 2018 and reviewed him post-operatively. He last examined the plaintiff in September 2018. At that time, Mr McCombe recorded that the plaintiff had recovered good function of the APL tendon, but had pain at the base of his thumb, which was likely to be related to a scar associated with his original trauma and surgery. Mr McCombe said the plaintiff had no obvious tenosynovitis or tendon instability and recommended ongoing hand therapy.
Leanne Graham, hand and occupational therapist
71Ms Graham wrote to Mr McCombe on 4 September 2018 and advised that the plaintiff had continued to make progress with range of motion, and grip and pinch strength. He continued to report sharp pain at the base of his thumb, both at activity and at rest.
72She recorded the plaintiff’s strength assessment as follows:
“Gross grip Right 59 kg Left 44 kg
Lateral Pinch Right 11.4 kg Left 9.1 kg”[25]
[25]Plaintiff Exhibit P4, PCB 46
Comment
73The plaintiff is not having active treatment.
74It is clear from the material that no medical practitioner has identified any active treatment which would be suitable.
75There is no suggestion in any of the medical material that he should be undergoing active treatment.
76The fact that a plaintiff is having little or no active treatment does not of itself preclude a finding of serious injury.[26] It is one of the factors to be taken into account when determining, on the whole of the evidence, whether the test has been satisfied.
[26] Transport Accident Commission v Katanas (2017) 262 CLR 550
77Consequently, the lack of current medical reports from treating doctors is of no significance in this case.
Plaintiff’s medico-legal reports
Mr Damon Thomas, plastic and reconstructive surgeon
78Mr Thomas examined the plaintiff in February 2022 for the purposes of conducting an impairment assessment and prepared a report dated 15 February 2022[27] addressed to the claims agent.
[27]Plaintiff Exhibit P5, PCB 48-60
79The relevance of this report is that the examination took place the day before the plaintiff started the job at Bulla Park Mushrooms as a picker/packer.
80Mr Thomas noted the plaintiff had pain over the radial border, reduced movement and nerve irritation with superficial radial nerve neuropathy. He was unable to wear a watch on his left wrist and his scars were hypersensitive.
81The plaintiff reported that he felt his symptoms were slowly getting worse and that they were exacerbated by anything physical or repetitive, and a cold environment.
82On clinical examination, Mr Thomas noted that the left wrist superficial radial nerve revealed dysesthesia and sensory neuropathy from the scar distally in the distribution of the superficial radial nerve.
83Mr Thomas diagnosed a left wrist traumatic laceration with either a complete or partially ruptured abductor pollicis longus, which in time became a complete rupture. Mr Thomas confirmed that the plaintiff has been left with post-traumatic issues with pain, reduced range of motion and overall reduced function.
84Mr Thomas did not expect the plaintiff’s thumb to improve over time. This was consistent with the plaintiff’s comment that he had noticed a slow deterioration in his thumb.
85Mr Thomas accepted that the plaintiff’s occupation was affected, as he had a reduced capacity for left-handed physical or repetitive tasks. He also had sensory issues, which included problems when there was contact with the radial border of his left wrist.
86Mr Thomas did not make any further comments as to the plaintiff’s capacity for employment, as it was not within his remit.
Dr Catherine Bones, consultant occupational physician
87Dr Bones provided a report dated 14 June 2023.[28]
[28]Plaintiff Exhibit P6, PCB 61-75
88The plaintiff told Dr Bones that he had gained employment with Australia Post as a forklift operator on a casual basis in 2021 but was unable to take the job as he could not have a second COVID-19 vaccination at the time. The plaintiff had been given an exemption for a second COVID-19 vaccination as he had suffered an adverse reaction to his first COVID-19 vaccination in 2021 and had to be hospitalised.
89In 2022 he was able to have his second COVID-19 vaccination and was able to work at Bulla Park Mushrooms.
90Dr Bones was told that the plaintiff was able to cope when provided with the light work at Bulla Park Mushrooms, but when his work was changed and the duties altered he experienced increased pain in his thumb, and swelling, and he resigned.
91Dr Bones noted that the plaintiff was taking Panadeine Forte or Voltaren for pain. She also noted he had a problem with gripping and grasping and carrying weights, as well as problems using hand tools.
92Dr Bones did not formally measure the grip strength, but she found it was clearly reduced in the left hand and noted that movements of the plaintiff’s left wrist were restricted to 45 degrees of flexion and 50 degrees of extension, with some restriction on radial deviation.
93Dr Bones expressed the clinical opinion that the plaintiff most likely had osteoarthritis of the carpometacarpal joint of the left thumb. She was prepared to provide that diagnosis without recent imaging.
94She expressed the opinion that the plaintiff was incapacitated for pre-injury work as a rigger. She also said that he did not have the capacity to undertake any work which required continuous constant or strenuous use of his left upper limb, particularly his left hand and thumb.
95Dr Bones was of the view that the plaintiff had a limited capacity to work as a forklift driver, depending on the nature of the forklift mechanism, and she thought he was capable of working only up to twenty hours per week initially.
96In her opinion, the plaintiff had a significantly reduced capacity for suitable employment in the open-labour market and the role of traffic controller was not physically suitable for him, noting that the role included manual handling and dexterity. She thought it would be appropriate the plaintiff to have further x-rays of his left hand.
Defendant’s medico-legal reports
Dr Simone Ryan, consultant occupational physician
97In a report dated 10 July 2019,[29] Dr Ryan noted that, at that time, the plaintiff was actively looking for work and had recently obtained a traffic-control certificate and it was hoped that the plaintiff would return to full-time work in lighter types of duties. This report predates the plaintiff’s attempt to work as a traffic controller and/or picker/packer.
[29]Defendant Exhibit D1, DCB 27-36
98The relevance of this report is that Dr Ryan considered, as at July 2019, that the plaintiff had probably reached the position of maximum medical improvement.[30]
[30](Ibid), DCB 30
99She noted that the plaintiff was motivated for work and recommended that he be assisted in obtaining work. She said:
“[The plaintiff] presents as a young determined and motivated young man who is very keen to return to work doing any type of work for which he can recondition his wrist … .”[31]
[31](Ibid), DCB 32
Dr Sam Soliman, occupational medicine consultant
100The defendant relied upon two reports of Dr Soliman, the first dated 6 June 2023, the second dated 4 August 2023.[32]
[32]Defendant Exhibit D2, DCB 37-46 and 47-48
101Dr Soliman examined the plaintiff on 6 June 2023. The plaintiff told him he had no pain or little discomfort at rest, but experienced sharp pain if he was using his left thumb or wrist, which could last for one to two days. The pain was worse when he had to lift awkward objects or open a jar.
102Dr Soliman noted the plaintiff had slight muscle wasting around the base of his left thumb, a full range of movement and slight discomfort at the end of movements. He had good grip strength and pinch gripping with pain at the end.
103Dr Soliman tested dynamometer grip strength at 45 kilograms in his right hand and 25 kilograms in the left hand, which he noted was lower than the grip strength reading made by Ms Graham in September 2018 of 59 kilograms in the right hand and 44 kilograms in the left hand. Dr Soliman provided no explanation or comment about this bilateral reduction of grip strength.
104Dr Soliman said that the plaintiff had near-normal gross grip and pinch gripping strength , relying on Ms Graham’s testing. This was inconsistent with Dr Soliman’s own tests.
105Dr Soliman considered that the plaintiff was fit to work full normal hours in suitable duties with no repetitive forceful gripping in the left hand.
106In his second report dated 4 August 2023, Dr Soliman said the plaintiff was capable of working as a road traffic controller.
107Dr Soliman did not explain why he formed the view that the plaintiff was capable of working as a road traffic controller, given that the plaintiff had attempted to do such a job and was unable to continue in the role.
Dr Michael Lucas, occupational physician
108The defendant relied upon a report of Dr Lucas, dated 29 September 2017[33] and a supplementary report dated 10 October 2017.[34]
[33]Defendant Exhibit D3, DCB 6-13
[34](Ibid), DCB 14
109Dr Lucas’s reports are obviously quite dated.
110Given the date of Dr Lucas’s reports, and the fact that they predated surgery and the plaintiff’s attempts to return to work, his reports are of little assistance to the Court.
Other material
111The defendant tendered a report of Recovre, dated 28 July 2023[35] which identified a number of “suitable employment” jobs.
[35]Defendant Exhibit D4, DCB 68-99
112In the course of argument, the defendant said it would rely only on the road traffic controller job referred to in the Vocational Assessment Report for the purposes of this application.
113According to Recovre, the average gross weekly wage for a road traffic controller in 2022 to 2023 was $1,625 gross per week/$85,904 per annum.[36]
[36](Ibid), DCB 73
114The plaintiff tendered two comparable employee payment summaries produced by the employer – the first covering the period 1 July 2019 - 30 June 2020 which showed a gross payment of $141,635 plus allowances of $18,930[37] and the second summary covering the period 1 July 2021 – 30 June 2022 which showed a gross payment of $122,695 plus allowances of $11,044.[38]
[37] Plaintiff Exhibit P7 DCB 119
[38] Plaintiff Exhibit P8 DCB 121
115The defendant tendered two sets of comparable employee pay slips produced by the employer – the first covering the periods 21 June 2023 – 27 June 2023 and 23 August 2023 – 29 August 2023,[39] and the second covering the period 14 June 2023 - 20 June 2023 and 30 August 2023 - 5 September 2023[40] – both sets of pay slips showed a base annual salary of $104,064.
[39] Defendant Exhibit D5 DCB 123-124
[40] Defendant Exhibit D6 DCB 125-126
Submissions of the Defendant
116Despite the documents tendered by the defendant, Counsel for the defendant conceded that a comparable employee in the pre-injury role of rigger would now be earning $133,739 (i.e. $122,695 plus $11,044).[41] The defendant agreed that 60 per cent of that figure is $80,243 or $1,543 per week.
[41] T47 L5 and corrected at T70 L7
117Counsel for the defendant argued that the plaintiff could return to work as a road traffic controller and earn approximately $1,625 per week and therefore would not establish a 40 per cent loss.
Submissions of the Plaintiff
118In contrast, counsel for the plaintiff submitted that the comparable earnings were $160,765 relying on the earnings of a comparable employee in 2020[42] ꟷ 60 per cent of that figure is $96,459 or $1,854 per week.[43]
[42] Plaintiff Exhibit P7 DCB 119
[43] T69, L20-26
119On reviewing the figures, there was a slight but ultimately inconsequential mathematical error in the calculation. The correct figure was $160,565 ($141,635 plus $18,930). Therefore, 60 per cent of that figure is $96, 339 or $1,852 per week.
120Counsel for the plaintiff also submitted that, even if the defendant’s figures were accepted as to the appropriate comparable employment, the plaintiff would still succeed, as he did not have the capacity to work as a road traffic controller.
Findings
121Neither party explained why their figures as to comparable earnings should be preferred.
122I find that the plaintiff does not have the capacity to return to his pre-accident employment.
123I further find that the plaintiff does not have the capacity to return to work as a road traffic controller. I accept his evidence that he was unable to perform that work because of his left upper limb impairment – he attempted to undertake such work and was unsuccessful.
124The plaintiff cannot earn the sort of money he would now be earning as a rigger.
125At best, on the evidence, the plaintiff has the capacity to earn between $1,001 a week as a packer (general) and $1,109 as a picker/packer as identified in the Recovre report.[44] These figures are the defendant’s figures and were not disputed by the plaintiff.
[44] Defendant Exhibit D4, DCB 73
126Having considered all the evidence, I find that the plaintiff’s capacity, at its highest, is to earn $1,109 per week as a picker/packer.
127On the figures, he satisfies the statutory test whether the Court accepts the plaintiff’s higher figure or the defendant’s lower figure for without injury comparable earnings.
128Further, the plaintiff has, in effect, lost his preferred career.
129I therefore find that the plaintiff has satisfied the provisions of s325(2)(e)(i) and(ii) as he has sustained a loss of capacity of 40 per cent or more, and this loss is permanent.
130I refer to the observations of the Court of Appeal in Guppy v Victorian WorkCover Authority.[45] Considering the plaintiff has lost over 40 per cent of his earning capacity and considering that he has lost his chosen career early in his working life, I further find the loss of earning capacity consequences are fairly described as being “more than significant or marked” and are “at least very considerable”. Therefore, the plaintiff has met the narrative test set out in s 325(2)(c).
[45] [2010] VSCA 164 at paragraph [51]
131Accordingly, the application is granted.
132I will hear the parties on the issues of costs, and I invite the parties to submit either proposed consent orders dealing with costs or brief submissions in favour of, or against, some alternative costs order within fourteen days.
133Unless persuaded by a submission to reconvene the hearing, I will resolve the issue of costs on the papers.
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