Rice v Central Highlands Group Training Inc and VWA

[2011] VCC 1509

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT BALLARAT
CIVIL DIVISION
DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-11-00180

JONATHAN PHILIP RICE	Plaintiff
v
CENTRAL HIGHLANDS GROUP TRAINING INC	First Defendant
(trading as BALLARAT GROUP TRAINING) ABN 73288998195
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Ballarat
DATE OF HEARING:	3 and 4 November 2011
DATE OF JUDGMENT:	4 November 2011
CASE MAY BE CITED AS:	Rice v Central Highlands Group Training Inc & VWA (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VCC 1509

RULING
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(38)(f)(ii) – meaning of phrase “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”.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J A Jordan SC with	Saines Lucas Solicitors
Mr M A Nightingale	104 Lydiard Street South Ballarat
For the Defendant	Mr P D Elliott QC with	Herbert Geer Lawyers
Mr I S Gourlay	Level 20, 385 Bourke Street Melbourne
HIS HONOUR:

1          At the conclusion of a long and stable period of employment with Goodman Fielder at the Ballarat Flour Mill (“the Mill”), where he undertook physical work as a packer man, the plaintiff was retrenched on 13 July 2001. At that time the plaintiff was earning a gross income of $776 per week. There is no issue that this employment came to an end by reason of the plaintiff's retrenchment and not by reason of the plaintiff seeking to alter the nature of his employment, or to seek alternative employment, or by a lifestyle decision by him to reduce the hours of his employment.

2          Following the loss of his employment at the Mill, the plaintiff sought to exercise his employment capacity, which I assess as being largely to undertake unskilled physical work, by seeking alternative employment of that type with a number of employers, including “McCain's, Mar's and Laminex”.[1]

[1]             See the plaintiff’s viva voce evidence

3          Being unsuccessful in these applications, the plaintiff retrained as a cook but was again unsuccessful in obtaining employment in that field.

4          Having eventually found work with the Central Highlands Group, it is accepted that the plaintiff was earning $427 gross per week at the time at which he was injured.

5 Although the plaintiff had been unsuccessful in finding full-time employment of the type which generated the income which had been available to him in employment at the Mill, I am satisfied that at all material times during the period which I am required to take into consideration pursuant to the provisions of s.134AB(38)(f) of the Accident Compensation Act 1985 (“the Act”, the plaintiff possessed the physical capacity to generate the income which he had produced in the course of his employment at the Mill, namely $776 per week; and that the plaintiff would have done so had employment which generated that type of income been available to him.

6          I make the latter finding taking into account the fact that at the time at which the plaintiff suffered the injury the subject of this application he was, in order to maximise his income, working for two employers on a part-time basis. It follows, in my opinion, that had more remunerative full-time work been available to the plaintiff which generated the income which he had previously earned in employment at the Mill, it is likely that the plaintiff would have undertaken that work.

7          I am also satisfied that the level of income which was available to the plaintiff in his employment at the Mill was one which was reasonably attainable within the market place, and was one which was not unrealistic in the market place for someone possessing the plaintiff’s skills.

8          In making this finding, I take into account the evidence contained in the vocational assessment of the plaintiff undertaken in 2005[2] which refers to a number of basic occupations of a much less physical type than that undertaken by the plaintiff at the Mill which generated income which varied from $523 to $700 per week. It seems probable to me that unrestricted physical work of the type undertaken by the plaintiff at the Mill would have generated levels of income significantly greater than these amounts. Further, there is no issue that it did so as at early 2001 given the plaintiff’s actual earnings at that time.

[2]             See the Defendant’s Court Book at page 18

9 Section 134AB(38)(f) of the Act provides as follows:

“(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.”

10        The section directs my attention, when assessing the plaintiff's lost earning capacity during the period fixed by the section, to a concept measured in terms of the sum which the plaintiff:

• was earning or would have earned; or

• was capable of earning or would have been capable of earning;

from personal exertion, which most fairly reflects his earning capacity had the
injury not occurred.

11        It is as to the meaning of the words employed by the Act, namely:

“was capable of earning from personal exertion or would have earned or

would have been capable of earning from personal exertion”;

that the submissions of the parties are directed.

12        It is submitted on behalf of the defendant that the analysis which I am required to undertake is effectively governed by the market forces which prevailed at the relevant time.

13        In this respect it is put that:

• Notwithstanding that the plaintiff possessed a theoretical capacity to perform the work he had undertaken at the Mill, if the employment market was such that it had not been possible for the plaintiff to find employment which generated that level of income, I should ignore the plaintiff’s theoretical income earning capacity;

• The employment market had determined the true (and in practical terms only) earning capacity which the plaintiff had proven he was capable of exercising, namely the generation of the income which he was producing as at the time of his injury, and that the income earning capacity which the plaintiff had possessed whilst working for the Mill had been lost.

14        It is put on behalf of the plaintiff that the provisions of the Act direct my attention to the question of what the plaintiff was capable of earning in suitable employment, and that this concept focuses its attention on his capacity independent of market forces which is appropriately represented by his wage whilst working at the Mill.

15        As I have said, I am satisfied that in the present case, that at all relevant times before he sustained his injury, the plaintiff's industrial capacity was such that he had the capacity to engage in unrestricted work of a physical nature and that he was seeking to exercise that capacity by seeking full-time work.

16        If it was the case that a theoretical capacity for work was incapable of being exercised in the market place because in reality no such job existed, or that it was not being sought to be exercised, then there may be some merit in the position put on behalf of the defendant.

17        My finding in this case is however, that the market contained employment opportunities for the plaintiff in which the working capacity he was both capable of exercising and seeking to exercise, would have generated levels of income similar that which he had earned as a packer man at the Mill.

18 I do not lose sight of the fact that, other than for some six weeks during the period fixed by Section 134AB(38)(f) of the Act, the plaintiff’s income fell well below that which his employment with the Mill had produced. I am of the opinion however, that when assessing the income level which most fairly reflects the income that the plaintiff would have earned, or would have been capable of earning, from personal exertion during the relevant period, I should be influenced primarily by the following matters about which I am satisfied, namely:

• That at all times during the relevant period the plaintiff was fit to perform unrestricted physical work on a full-time basis;

• That the plaintiff was at all relevant times willing to undertake unrestricted physical work on a full-time basis;

• That income of the level which the plaintiff earned whilst working at the Mill was reasonably attainable within the job market applicable to the plaintiff;

• That the plaintiff would have availed himself of the opportunity to work in an occupation which generated the income which he had earned at the Mill if he had been successful in obtaining such employment.

19        In these circumstances, I am satisfied that in fixing the level of income which the plaintiff would have been capable of earning which most fairly reflects his earning capacity had the injury not occurred, it is appropriate to fix that figure at the level of the gross wage available to the plaintiff in employment at the Mill, namely $776 gross per week.

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