Rickard v Stirloch Constructions Pty Ltd
[2023] VCC 872
•2 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Sale COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-22-04192
| DEAN ALLAN RICKARD | Plaintiff |
| v | |
| STIRLOCH CONSTRUCTIONS PTY LTD (ABN 70 082 616 840) | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Sale | |
DATE OF HEARING: | 2 and 3 May 2023 | |
DATE OF JUDGMENT: | 2 June 2023 | |
CASE MAY BE CITED AS: | Rickard v Stirloch Constructions Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 872 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left upper limb – pain and suffering and loss of earnings consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:The Herald & Weekly Times Limited and Victorian Workcover Authority v Jessup [2014] VSCA 292
Judgment: Leave granted for pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with Ms J Frederico | Slater and Gordon Lawyers |
| For the Defendant | Ms C A Kusiak | MinterEllison |
HER HONOUR:
Introduction
1Mr Dean Rickard, the plaintiff, is a forty-eight-year-old man who has mainly been employed as a steel fixer during his working life.
2The plaintiff started working for the defendant on 13 December 2019. He suffered an injury to his left wrist in an incident on 16 December 2019 (“the incident”), on his third day of work.
3The plaintiff seeks leave to commence a common law proceeding for both pain and suffering and loss of earning capacity damages. His claim is that he has a “serious injury” to his left upper limb.
4The relevant legal principles are well known and were not in issue.
5There was no dispute between the parties that the plaintiff suffered a compensable injury to his left upper limb.
6Whilst the defendant did not concede the issue of pain and suffering, the focus of the defendant’s submissions was upon the claimed pecuniary loss consequences. It was also submitted that the evidence did not establish that the plaintiff’s impairment was permanent.
7The pecuniary loss issues related to the calculation of the plaintiff’s “without injury” earning capacity, and his “with injury” earning capacity.
8For the reasons that follow, the plaintiff is granted leave to seek loss of earning capacity damages. Such leave also entitles the plaintiff to claim pain and suffering damages.
Background
9The plaintiff was born and brought up in Victoria. He currently lives in Orbost with his partner.
10The plaintiff’s schooling was disrupted due to his father’s itinerant work, though he completed Year 10.
11The plaintiff is left hand dominant.
12The plaintiff is a qualified bricklayer, but has mainly worked in the construction industry as a steel fixer/labourer.
13In the years preceding the incident, the plaintiff worked for a number of different employers.
14In 2015, the plaintiff suffered an injury to his left elbow. This necessitated some time off work and surgery in October 2015. By February 2016, the plaintiff had recovered from this injury and was cleared to return to full-time unrestricted work as a steel fixer.
15The plaintiff began working for the defendant as a steel fixer on a casual basis on Friday, 13 December 2019. He was to work on a project that involved the construction of water storage facilities at Wy Yung.
16The plaintiff said that he understood the job with the defendant was to be for at least six months, but he was not sure whether it would extend to eight or twelve months. He said that, as was typical in this type of role, he was required to work Monday to Saturday each week. On this particular project, his work hours were to be ten hours on Mondays, Tuesdays, Wednesdays and Thursdays, and eight hours on Fridays and Saturdays. This was a union site and the plaintiff understood he was to be paid at union rates.
17The plaintiff worked on Friday, 13 December, and Saturday, 14 December 2019. The incident occurred at about 8.00am on Monday, 16 December 2019. The plaintiff was assisting to move a roll of BAMTECH reinforcement when he fell, injuring his left wrist.
Treatment following the incident
18The plaintiff was driven to Bairnsdale Hospital. X-rays revealed the plaintiff had suffered an undisplaced fracture of the distal left radial metaphysis. His left forearm and wrist was put in plaster. The plaster remained in place for ten or twelve weeks as the fractures were slow to heal.
19After the plaster cast was removed, the plaintiff had hand therapy for a period of time. Whilst the fracture reunited, he continued to experience pain, swelling, weakness and episodes of numbness and pins and needles in his left arm, wrist and hand.
20The plaintiff underwent a CT scan on 3 March 2020. This was reported to reveal a near complete radiographic union of the distal radius fracture. Only the volar component remained ununited. The plaintiff was referred to Mr Ben Brooker, orthopaedic surgeon, for assessment. Mr Brooker recommended that the plaintiff continue with conservative treatment.
21The plaintiff began having physiotherapy treatment with Mr Geoff Delaney in March 2020, and continues to have that treatment on a fortnightly basis.
Work following the incident
22The plaintiff said that he was encouraged to return to work with the defendant performing alternative duties on reduced hours. He said that he was given little meaningful work, and there were no duties he could perform because of the ongoing problems with his left arm. That return to work attempt appears to have been short-lived.
23In October 2020, the plaintiff began a twelve-month course to gain a Certificate III in Individual Support, specialising in disability. He obtained casual work with Melba, Bairnsdale, as a disability support worker in September 2021. This enabled him to undertake the placement hours required for his course and he was thereafter employed by Melba as a disability support worker on a permanent part-time basis.
24The plaintiff continues to work part-time for Melba. He works in a community residential house, providing assistance and support to six residents. The residents are adults with varying physical or intellectual disabilities.
The Plaintiff’s evidence as to his pain and suffering consequences
25The plaintiff tendered three affidavits sworn by him on 17 May 2022, 24 April 2023 and 2 May 2023, and an unsworn affidavit of his wife, Nicole Rickard.
26The plaintiff deposed to experiencing ongoing pain in his left arm which varies in intensity. The flare ups are not necessarily activity related. His arm is very sensitive and he has lost significant strength. The plaintiff often sleeps separately from his wife to protect his arm from being touched. In addition to pain, the plaintiff also experiences symptoms such as spasms, pins and needles, swelling, colour changes and numbness over his forearm, wrist and hand.
27The plaintiff ceased taking medication for his arm as he experienced significant side effects.
28This was not a case in which the defendant raised issues as to the plaintiff’s credit.
29I found the plaintiff to be a straightforward witness. Whilst he had some difficulty remembering dates, he impressed me as candid. He made appropriate concessions.
30Overall, in determining this application, I am satisfied that I can rely on the plaintiff’s evidence.
31Before considering the statutory test regarding loss of earning capacity, it is appropriate to consider the medical evidence tendered by the parties relevant to that issue.
The medical evidence
32There was some controversy on the medical material as to whether or not the plaintiff suffers from a Complex Regional Pain Syndrome in his left upper limb. That issue aside, there was no dispute that the plaintiff is now permanently unfit to work as a steel fixer because of the continuing impairment to his left wrist. He retains a capacity for suitable employment.
Treaters
Mr Geoff Delaney, physiotherapist
33The plaintiff tendered three reports from Mr Geoff Delaney, physiotherapist, dated 14 May 2021, 11 December 2022 and 1 April 2023.
34Mr Delaney began treating the plaintiff on 17 March 2020 and continues to do so on a fortnightly basis. Mr Delaney provides the plaintiff with certificates of capacity. A certificate of capacity dated 11 April 2023 was tendered. It noted limitations in the plaintiff’s ability to lift and use his left hand. The restrictions on work hours were noted as:[1]
“Working ≥ 50 hours per fortnight as a support worker.”
[1]Plaintiff’s Court Book (“PCB”) 48
35When he was first seen by Mr Delaney, the plaintiff’s wrist was very stiff and there was a change of colour in the lower dorsum of his forearm and wrist. He had allodynia to light touch. Mr Delaney determined that the plaintiff had a sympathetic response to an extensive period of immobilisation in plaster.
36Since that time, Mr Delaney has been treating the plaintiff for Complex Regional Pain Syndrome.
37In his report of 11 December 2022, Mr Delaney opined that the plaintiff’s symptoms had improved but he will never be fit for his pre-injury employment or any other manual employment. He noted the plaintiff’s left shoulder musculature remained quite wasted.
38In his supplementary report dated 1 April 2023, Mr Delaney opined that the plaintiff–
“… has exhausted all avenues regarding treatment for his injury and is not likely to benefit from any further interventions.”
Medico-legal reports
39The plaintiff tendered two medico-legal reports, from Mr John O’Brien, orthopaedic surgeon, and Dr James Rowe, occupational physician. The defendant tendered medico-legal reports from Dr Barry Slon, pain physician, and Professor Evange Romas, rheumatologist.
Mr John O’Brien, orthopaedic surgeon
40Mr O’Brien examined the plaintiff on 30 January 2023 and provided a report the same day.
41The plaintiff told Mr O’Brien that he experienced constant pain at a level of one out of ten in his left wrist, mainly localised to the dorsum of the wrist, with pain extending distally to the dorsum of the hand and into the middle fingers, and proximally up the dorsum of the forearm to the elbow. The plaintiff also reported that he experienced a significant exacerbation of pain on active use of his left arm and hand, particularly when lifting. His left arm and hand felt weak and at times there was a colour and temperature change. The plaintiff told Mr O’Brien that as medication was not providing symptomatic improvement, he stopped taking it.
42On physical examination, Mr O’Brien noted a very mild bony irregularity over the dorsal aspect of the left radius and a very mild restriction of movement of the left wrist. He opined that there were no signs to suggest the presence of Complex Regional Pain Syndrome.
43Mr O’Brien opined that the plaintiff’s residual symptoms related to the long-term effects of significant soft tissue injury accompanying his fracture and some soft tissue contracture of the wrist joint capsule.
44Mr O’Brien was of the view that as the plaintiff’s symptoms had not changed over the preceding two years, the clinical condition was stable. He noted that the plaintiff remained capable of the normal activities of daily living but had residual problems with significant activity requiring the use of the left dominant arm. He was permanently unfit to resume his pre-injury employment as a steel fixer or other unrestricted manual duties.
45Mr O’Brien considered that the plaintiff was capable of continuing in his present employment as a disability support worker, where the manual duties were limited at his current hours (which Mr O’Brien understood to be 30 hours per week).
Dr James Rowe, occupational physician
46The plaintiff was examined by Dr Rowe on 31 January 2023, and he reported the same day.
47The plaintiff told Dr Rowe that he continued to suffer with pain and loss of function in his left arm and hand. The pain was always there but the severity varied. He experienced symptoms including spasms, pins and needles, swelling, colour changes, numbness and skin sensitivity about his forearm, wrist and hand. He told Dr Rowe that he worked to a maximum of 50 hours per fortnight – occasionally he had worked more, but that was unusual. He had restrictions in place on the use of his left arm, including lifting and repetitive activity.
48Upon examination, Dr Rowe found movements of the plaintiff’s elbow were restricted to about half the normal range; grip strength in the left hand was 4.5 kilograms compared to 36 kilograms in the right hand, measured with a dynamometer. The plaintiff’s left upper arm was wasted, measuring 5 centimetres smaller compared with the right. Dr Rowe described this is a very significant difference.
49Dr Rowe opined that the plaintiff had developed Complex Regional Pain Syndrome with ongoing pain and dysfunction in his left wrist and hand. The condition had essentially stabilised.
50Dr Rowe opined that the plaintiff was permanently unfit for his pre-injury duties. He said that the plaintiff retained a capacity to work in suitable employment where he could avoid use of his left (dominant) hand. He was of the view that the plaintiff was working to his maximum capacity. Whilst he nominated 50 hours per week in this part of his report, it is clear from a consideration of the entire report that this was an error and he meant 50 hours per fortnight.
Dr Barry Slon, pain physician
51Dr Slon examined the plaintiff on 29 June 2022, and reported the same day.
52The plaintiff reported continuing pain in his left forearm and hand. He described colour changes, temperature changes, and sweating changes.
53Upon examination, Dr Slon found unimpaired left shoulder and elbow function. He noted visible duskiness associated with the left hand and forearm, which were warmer.
54Dr Slon opined that the plaintiff suffered from neuropathic pain, and diagnosed Complex Regional Pain Syndrome. He recommended a referral to a pain medicine specialist.
55Dr Slon opined that the plaintiff was unfit for his pre-injury duties, and was restricted in his capacity to push, pull and lift “… but he would possibly be able to increase up his present hours from the 25 per week that he is doing”.[2] Dr Slon believed that the plaintiff was capable of increasing the hours he worked to as many as he wished.
[2]Defendant’s Court Book (“DCB”) 5
Associate Professor Evange Romas, rheumatologist
56Associate Professor Romas examined the plaintiff on 12 November 2021 for the purpose of an impairment assessment, and reported on the same day. He revised his impairment assessment in a supplementary report dated 10 December 2021 after being advised of the plaintiff’s prior left elbow injury.
57On examination, Professor Romas noted no abnormal allodynia, pinprick hyperalgesia or hyperpathia. He noted a stiff left wrist, with a loss of range of motion. His grip strength was 23 kilograms compared to 46 kilograms in the right.
58Professor Romas diagnosed left wrist dysfunction following an impacted distal radial fracture, with no evidence of Complex Regional Pain Syndrome type I or type II.
59Professor Romas did not provide an opinion as to the plaintiff’s work capacity.
Analysis of the medical evidence
60Each of the doctors agreed that there was an ongoing impairment to the plaintiff’s left wrist, although there was disagreement as to diagnosis.
61The plaintiff’s treating physiotherapist has seen the plaintiff fortnightly for three years. His opinion, that the plaintiff has symptoms and signs of a Complex Regional Pain Syndrome, accords with the opinions of Dr Slon and Dr Rowe. I accept that opinion. This is also in accordance with the acceptance of liability for the payment of an impairment benefit in December 2021 for a left wrist/Complex Regional Pain Syndrome.
Permanence
62The defendant submitted that there was an issue as to whether the plaintiff’s current impairment consequences were permanent in the requisite sense. This submission was founded upon Mr Delaney’s report in which he said:[3]
“… His current employment is working well at this point but does cause him pain which he can cope with. Whether he can increase his hours further remains to be seen.”
[3]PCB 25
63Mr Delaney confirmed in his third report of 1 April 2023 that the plaintiff’s injury was stable, that he had exhausted all avenues for treatment and was not likely to benefit from any further interventions.
64I accept the opinions of Mr Delaney, Mr O’Brien and Dr Rowe that the plaintiff’s condition is unlikely to change, and approximately 50 hours a fortnight represents his capacity for employment into the foreseeable future. I therefore find that the plaintiff’s condition is permanent in the requisite sense.
Loss of earning capacity
65For the plaintiff to succeed in his claim for the loss of earning capacity consequence, he must establish:
(a) his loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable (“the narrative test”);
(b) he has a loss of earning capacity of 40 per cent or more measured as set out in s325(2)(f) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”); and
(c) after the date of the hearing, he will continue permanently to have a loss of earning capacity productive of a financial loss of 40 per cent or more.
“Without injury” earning capacity
66The plaintiff’s case was put on the basis that a figure of at least $100,000 per annum most fairly reflected his “without injury” earning capacity. Sixty per cent of that figure is $60,000 per annum, $1,153 per week.
67The defendant submitted that the figure of $83,847 per annum most fairly reflected the plaintiff’s “without injury” earning capacity. Sixty per cent of that figure is $50,308 per annum, $967 per week.
68In order to determine the plaintiff’s “without injury” earnings, I am required to decide which of the following four scenarios most fairly reflects the plaintiff’s earning capacity if the injury had not occurred:
(a) the gross income that the plaintiff was earning during the period of three years before the injury;
(b) the gross income that the plaintiff was capable of earning from personal exertion in the three years before the injury;
(c) the gross income the plaintiff would have earned in the three years after the injury, if the injury did not occur;
(d) the gross income the plaintiff would have been capable of earning from personal exertion in the three years after the injury if the injury did not occur.
69I approach the assessment of the plaintiff’s “without injury” earning capacity on the basis that it represents a capital asset which, when exercised, produced income from personal exertion.[4]
[4]The Herald & Weekly Times Limited and Victorian WorkCover Authority v Jessop [2014] VSCA 292 at paragraph [53] (“Jessop”)
70The plaintiff’s actual earnings in the three taxation years prior to injury were:
· Year ending 30 June 2017 - $54,765[5]
· Year ending 30 June 2018 - $83,847[6]
· Year ending 30 June 2019 - $75,135.[7]
[5]Transcript (“T”) 3
[6]PCB 43 and DCB 64
[7]PCB 43 and DCB 66
71The plaintiff’s earnings during the financial year ending 30 June 2017 were reduced as he had a considerable time not working because of his elbow injury and surgery.
72During the financial year ending 30 June 2018, the plaintiff worked as a steel fixer for several different companies:
(a) At the start of that financial year, he was working for Venables Precast Crane Hire Pty Ltd (“Venables”). This was a company operated by the plaintiff’s friends. The plaintiff’s evidence, which I accept, was that he was being paid less than he could earn if working elsewhere. The plaintiff said that he was willing to accept the reduced pay as his friends needed his help;
(b) From 16 October 2017, the plaintiff worked for Tynong North Operations Pty Ltd for approximately three weeks. This was a short-term job helping the plaintiff’s brother-in-law. The plaintiff went back to Venables once this work was complete. Once again, the plaintiff’s evidence was that this job also paid less than he could earn if working elsewhere, but he undertook the work to help his brother-in-law;
(c) The plaintiff said, and I accept, that in early 2018, he decided he could no longer afford to work for reduced pay to assist his friends or relations. On 13 March 2018, the plaintiff started working for Ace Labour Hire Pty Ltd (“Ace”). He was placed at GBG Concrete & Construction Pty Ltd performing work at union rates. In the approximately sixteen weeks between then and the end of that financial year, the plaintiff grossed $48,273 – an average of approximately $3,000 gross per week.
73During the financial year ending 30 June 2019, the plaintiff worked only for Ace. His gross earnings were $75,135.The plaintiff did not give any particular evidence about the pattern of work he performed during this particular financial year. When compared to the quantum of his gross earnings from Ace in the prior financial year, the differential warrants explanation. Mr O’Dwyer submitted that I should infer that the plaintiff did not work for the full year. Another, and perhaps more likely, explanation is that the plaintiff was performing less remunerative work for some of the year.
74The financial documents tendered by the parties do not permit calculation of the plaintiff’s gross earnings in the period between 1 July 2019 to 13 December 2019. Whilst the parties agreed that the plaintiff’s gross income during the taxation year ending 30 June 2020 was $87,897 (which included that period), this comprised income from all sources during the entire financial year, including weekly payments following the plaintiff’s injury.
75The evidence as to the plaintiff’s remuneration in his casual employment with the defendant was confusing and contradictory:
(a) The plaintiff deposed that he believed his rate of pay was $56 per hour for ordinary time, and double time for overtime. He said overtime rates were payable for each hour worked beyond eight hours on a weekday and all day on Saturday. Inconsistently, the plaintiff also deposed to being paid $46.19 per hour;
(b) Two payslips issued by the defendant were tendered. These recorded that the plaintiff was employed on a casual basis pursuant to the EBA Construction Award.[8] The award was not tendered:
[8]PCB 45 and 46
(i)The first payslip recorded payment for the two days worked in the week ending 15 December 2019 (Friday, 13 and Saturday, 14 December 2019) in the gross sum of $1,242.26, calculated as follows:
-8 hours of ordinary time at $46.19 per hour, in the sum of $369.52.
-9 hours of ‘double time’ recorded at $36.95 per hour – but a payment of $748.24 was made (which equates to $83.14 per hour or $41.57 at double time).
-travel allowance of $39.30 per day for two days, and a site allowance of $2.70 per hour for 17 hours, totalling $124.50;
(ii)The second payslip recorded payment for one day worked in the week ending 22 December 2019 (Monday, 16 December 2019) in the gross sum of $665.28, calculated as follows:
-12 hours of ordinary time at $46.19 per hour, in the sum of $554.28.
-travel allowance of $39.30 per day for two days, and a site allowance of $2.70 per hour for 12 hours, totalling $111.00;
(c) A Victorian WorkCover Authority File Note Enquiry record was tendered which relevantly recorded as follows:
“Emp confirmed IW was expected to work 38hr per week
IW worked less than 4 weeks pre-injury
Weekly base rate $2,133.70 = 38hrs x $56.15
No shift allowance
No overtime
TOTAL PIAWE 100% RATE $2,134.”[9]
[emphasis added.]
[9]PCB 44
76Based on the figures from the payslips, if the plaintiff worked ‘four tens and two eights’, that is 56 hours per week, with 16 of those hours on double time, together with a site allowance and travel allowance each day, his gross weekly earnings in his employment with the defendant would have been:
40 hours x $46.19 = $1,847.60
16 hours x $83.14 = $1,330.24
56 hours x $2.70 = $151.20
6 hours x $39.30 = $235.80
________
$3,564.84
========
77On the basis of the plaintiff working for the defendant for the remainder of the 2019/2020 taxation year, with say three weeks not working (due to holiday/illness), his gross earnings for the period would have been 26 x $3,564.84 = $92,686. An annualised figure would be 46 x $3,564.84 = $163,983 (based on six weeks not working due to holiday/illness/time between jobs).
78Using the PIAWE figure recorded by the WorkCover agent, the plaintiff’s gross earnings for the same period would have been 26 x $2,134 = $55,484. An annualised figure would be 46 x $2,134 = $98,164 (based on six weeks not working due to holiday/illness/time between jobs). This figure reflects earnings for 38 hours per week with no overtime or allowances.
79The plaintiff’s evidence was that the work hours for steel fixers would vary between jobs. Sometimes it would be four 10-hour days and two 8-hour days each week (56 hours a week); on other projects there may be no overtime during the week, only on Saturdays; at other times it would be five 10-hour days (50 hours a week). I understand from this evidence that there would usually be at least 50 hours of work each week on a project, sometimes more.
80The plaintiff said that as at December 2019, he believed the union rate was $56 per hour for steel fixers. This was the hourly rate he believed he would be paid by the defendant. He believed the union rates generally increased by four to six per cent each year. This was a substantially better hourly rate than on non-union sites, by perhaps $20 per hour.
81Prior to his injury, the plaintiff worked on a casual basis. He did not have paid holiday or sick leave. His evidence was that he would take several weeks for holidays each year, and there could also be periods in between jobs where he was not working, waiting for the next job to start.
82The defendant submitted that in performing work for friends and his brother-in-law at reduced rates, the plaintiff was preferring to choose more favourable working conditions at times rather than less favourable conditions with better pay. Whilst that may have been a reason for the plaintiff’s choices, I accept that by early 2018, he had decided he could no longer afford to do so.
83In this case, I find that the earnings revealed by the plaintiff’s taxation returns in the three years before December 2019 do not most fairly reflect the plaintiff’s earning capacity if the injury had not occurred. The 2017 earnings were reduced due to an unrelated injury. The 2018 earnings reflected the plaintiff’s choice to accept less well remunerated employment to assist friends and his brother-in-law.
84I find that the gross sum the plaintiff was to be paid by the defendant is the appropriate starting point in determining the plaintiff’s “without injury” earnings. The difficulty is in determining what those earnings were.
85I find that the rates of pay for ordinary time, overtime and allowances were as demonstrated by the payslips the defendant issued to the plaintiff.
86I accept the plaintiff was to work significant overtime on the project for the defendant and perform that work for at least six months. Thereafter, the plaintiff would have continued in casual employment as a steel fixer. That would have been on both union sites and at times non-union sites. He would have had periods not working either between jobs, for holidays or illness. His earnings (at least when on union sites) would have been similar to his pay rate for the defendant, increased by four per cent each year.
87Doing the best I can on the whole of the evidence, considering the calculations at paragraphs 77 and 78 above, I find the figure which most fairly reflects the plaintiff’s “without injury” earning capacity is at least $100,000 per annum. Sixty per cent of that figure is $60,000 per annum, or $1,153 per week.
“With injury” earning capacity
88The plaintiff’s “with injury” earning capacity is the greater of the gross income from personal exertion which he is earning, whether in suitable employment or not, or capable of earning in suitable employment.[10]
[10]Section 325(2)(f) of the Act
89The plaintiff has been working as a disability support worker for Melba since 27 September 2021. He is employed on a part-time contract. His work hours vary somewhat from week to week, but he generally works 25 hours each week, comprising two overnight shifts and one day shift. His pay varies according to the particular days and shifts that he works because of overtime and allowances.
90The plaintiff submitted that he is exercising his earning capacity to the extent of his retained capacity, and that situation is likely to continue into the future.
91The defendant submitted that the plaintiff is capable of earning more than 60 per cent of his “without injury” earning capacity if he works 25 hours per week, depending on the particular shifts that he works. He also has the capacity to increase his hours beyond 25 per week.
92The parties each tendered a selection of the plaintiff’s fortnightly payslips from his employment with Melba – approximately 30 in total.
93Counsel for the defendant pointed to the fact that the plaintiff has earned more than 60 per cent of his “without injury” earning capacity on several occasions in the nineteen months since he began working for the defendant:
· For the fortnight ending 6 November 2021, the plaintiff earned $3,382.81 gross ($1,691 per week). He worked 62.5 hours during the fortnight and was on casual rates;[11]
· For the fortnight ending 4 December 2021, the plaintiff earned $2,426.33 ($1,213 per week). He worked 50.5 hours during the fortnight and was on a part-time contract. He performed three sleepover shifts during this pay period;[12]
[11]DCB 57
[12]DCB 58
· For the fortnight ending 21 May 2022, the plaintiff earned $2,904.58 ($1,452 per week). He worked 50.5 hours during the fortnight and was on a part-time contract. He performed five sleepover shifts during this pay period.[13]
[13]DCB 59
94The variability of the plaintiff’s pay, even when he has worked the same number of hours in a fortnight is well illustrated by a comparison of three payslips. In each of the fortnights ending 4 December 2021 and 21 May 2022 (above), the plaintiff worked 50.5 hours. This was also the case for the fortnight ending 23 October 2021, for which the plaintiff was paid $1,895.63, $947 per week (at casual rates).[14] He did not perform any sleepover shifts during this pay period. The weekly pay during those three periods ranged from $947 to $1,452.
[14]DCB 56
95The pay differential appears to be due in part to the number of sleepover shifts the plaintiff worked for which he was paid an additional allowance. That allowance is more if the sleepover shifts are on weekends or public holidays.
96The plaintiff’s evidence was that sometimes he is not able to work 50 hours in a fortnight due to problems with his wrist. At other times he feels able to take on additional hours and does so. I accept that evidence.
97The plaintiff said that there is a lot of work available with his employer and other similar organisations.
98I bear in mind that I am applying a gateway provision.
99The defendant submitted, in reliance upon Jessop, that the plaintiff has demonstrated his capacity to work more than 50 hours a fortnight by having done so on occasion since September 2021:[15]
“… So there need not be a regular willingness to work, for example, every week additional hours, it’s sufficient that on some occasions, in our submission, the plaintiff elects to work additional hours that would satisfy the capacity test.”
[15]T88
100On the evidence, the plaintiff has been capable of earning more than the 60 per cent figure during only three fortnights in his current employment. Contrary to the defendant’s submission, I do not find that demonstrates the plaintiff has the capacity to work more than 25 hours a week on a regular basis. Nor do I find that it demonstrates a capacity to earn more (by way of penalty rates et cetera) on a regular basis.
101I accept the plaintiff’s evidence that he has worked more hours when able, but generally, he is not able to because of his wrist impairment. Indeed, sometimes he is not able to perform even the usual 25 hours in a week because of his left wrist impairment.
102In the period 27 September 2021 to 30 June 2022, the plaintiff earned $37,224 gross from his employment with Melba.[16] That is an average of $954 gross per week over approximately 39 weeks.
[16]DCB 69
103In the period 1 July 2022 to 22 April 2022, the plaintiff earned $38,949 gross from his employment with Melba.[17] That is an average of $927 gross per week over approximately 42 weeks.
[17]PCB 47
104Given the variability in the plaintiff’s earnings, and given my finding that the plaintiff is working to the extent of his capacity, I find that the figure which represents the plaintiff’s average earnings during his entire employment with Melba, most fairly reflects his “with injury” earning capacity. That is, $940 gross per week.
Analysis regarding earning capacity
105The plaintiff’s “with injury” earning capacity is $940 per week. This is less than $1,153 per week, which represents 60 per cent of the plaintiff’s “without injury” earning capacity.
106I am satisfied that the plaintiff will continue permanently to suffer a loss of earning capacity of 40 per cent or more as a result of the physical consequences of his left upper limb injury.
107I also find that the plaintiff’s inability to return to his pre-injury employment is a “very considerable” loss of earning capacity consequence for the purpose of s325(2)(c)(ii) of the Act. The plaintiff therefore satisfies the narrative test.
Conclusion
108Having determined that the plaintiff is entitled to leave to commence proceedings for loss of earning capacity damages, he is also entitled to seek pain and suffering damages.
109I will hear the parties as to costs.
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