Ross v Patrick Portlink Pty Ltd and VWA
[2009] VCC 293
•6 March 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-01271
| JOHN LYLE ROSS | Plaintiff |
| v | |
| PATRICK PORTLINK PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 and 18 February 2009 |
| DATE OF JUDGMENT: | 6 March 2009 |
| CASE MAY BE CITED AS: | Ross v Patrick Portlink Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0293 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the left upper limb – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni SC and | Barbante & Associates |
| Mr J Sala | ||
| For the Defendants | Mr J Parrish SC and | Herbert Geer |
| Ms C Boyle | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the first defendant on 24 August 2005 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the left upper limb.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon one affidavit and gave viva voce evidence. He was cross-examined.
6 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is presently aged fifty four, having been born on 3 February 1955. He left school at the age of sixteen, having completed Form 4.
8 The plaintiff’s employment history since that time has included working as a semi-skilled tradesman and motor panel repairer, working as a cartage contractor and performing yard work.
9 Eventually the plaintiff obtained his truck licence and he started driving, initially for Hunter’s Transport in Shepparton, where he did both local and interstate trips for four to five years. He then worked for six years with the Gaylard Family Group of Companies in Shepparton, driving from Shepparton to other areas of Victoria. Thereafter, he worked at Goulburn Valley Liquid Tankers as a truck driver for twelve months and for the following two years at Garrard’s Waste as a truck driver. He then worked for George’s Transport in Tatura for a year and then returned to Hunter’s Transport for approximately eighteen months.
10 During that time, the plaintiff did not suffer injury in any motor vehicle accidents nor could he recall any work accidents where he required time off work.
11 The plaintiff commenced employment with the first defendant, then known as Phillip’s Transport, in 2002. He drove trucks in the local area around Shepparton. He was required to load and unload at the cannery and food factories. He drove the trucks, once loaded, to the yard where another driver would take them for delivery to the appropriate destinations. He obtained his B double trailer licence whilst employed by the first defendant. The work involved a lot of overtime and was physically demanding and strenuous, but he had no problems performing his duties.
12 The plaintiff worked a 38 hour week, together with overtime. He was paid $16.23 per hour and his ordinary gross weekly earnings totalled $617.00.
13 On the said date, the plaintiff suffered injury as he was securing a load when the ratchet on the Tautliner slipped past the clipper and he fell backwards onto the ground (“the incident”). The plaintiff suddenly felt a very sharp severe pain in the little finger of his left hand and side of left hand, and there was intense pain and burning to his wrist.
14 Following the incident, the plaintiff was required to drive back to Shepparton via Kyabram for another job. When the plaintiff returned to the Shepparton depot he had great difficulty getting out of the truck and the pain in his hand and wrist was unbearable. He was unable to see his local doctor that night. He took painkillers and had a very sleepless night.
15 The following day the plaintiff saw the work doctor, Dr Sneyd, at the Wyndham House Clinic (“the Clinic”). A fracture of the scaphoid was confirmed on x-ray and Dr Sneyd put the plaintiff’s left hand in plaster, where it remained for six weeks. Despite that treatment, the plaintiff continued to experience severe pain in his left wrist, hand and arm and when the plaster was removed they were severely swollen.
16 For a month after the removal of the plaster, the plaintiff complained of quite severe pain and swelling to his left wrist and hand.
17 In November 2005, the plaintiff was referred by Dr Sneyd to Mr Ian Critchley, orthopaedic surgeon, who sent him for an MRI and a nerve conduction study. Following receipt of these investigation results, Mr Critchley told the plaintiff he could not help him, and referred him to Mr Patel, orthopaedic surgeon, who examined him in February 2006.
18 On his return to work after the incident in late 2005, the plaintiff worked in the gatehouse at the transport yard, probably for about four to five hours a day, writing down truck registration numbers. He thought he did these duties for about two to three months until he underwent surgery performed by Mr Patel on 27 February 2006 (“the first operation”).
19 Following the first operation, the plaintiff was sent to an occupational therapist at the Goulburn Valley Hospital for strengthening exercises. Dr Brooder carried out another nerve conduction study which revealed nerve problems.
20 The plaintiff had some time off work after the first operation. When he returned to work he again worked in the gatehouse and did a bit of yard work. There may also have been some, but not much, truck driving duties involved. The plaintiff worked at least four to five hours a day until he underwent further surgery on the nerve in his left elbow on 24 October 2006 (“the second operation”).
21 Since the second operation, the plaintiff’s whole left hand and wrist, including his arm, has deteriorated considerably.
22 The plaintiff returned to full time restricted duties in early 2007 but he was unable to drive a truck on the advice of Dr Sanders, who had taken over his care from Dr Sneyd. The plaintiff found he was severely restricted in any weight bearing using his left arm and hand, and he had difficulty holding objects, sometimes dropping them.
23 The plaintiff returned to work as a yardman and he also had to do a number of other duties around the depot. He did cleaning work in the loading bay using a sweeper machine for approximately one hour per day and he removed rubbish. He did a little bit of manual sweeping and wiped down the tables in the ‘smoko’ room. After completing these tasks, he might go and empty a few plastic wheelie bins using a forklift.
24 The plaintiff engaged in traffic control work which involved sitting in the gatehouse and controlling the trucks that went in and out. In addition to recording their number plates, he pushed the button to bring the boom gate up and down. The plaintiff admitted this part of his duties was a real job which he did when someone was on holidays or someone was sick. He also filled in when the person who normally did that job was at lunch. The first defendant wanted the plaintiff to do more work in the gatehouse but he did not have the necessary computer skills.
25 The plaintiff also filled in a lot of time just trying to find something to do. He would wander around the yard and pick up rubbish and put it in the wheelie bin. He drove a tray body around with a water tank on it to wet the yard. This was done usually once a day during summer. Sometimes he loaded the tanker with water. Every now and again he would hook up a trailer but not very often. He was not involved in any office activities. His entire job was outside. Some of the duties involved his left hand which he used on a limited basis. He did not suggest that he could not use his left arm but it fatigued very quickly.
26 The plaintiff had a bit of time off during 2007 because of left arm pain. He tried to stick at work as much as he could, but on a couple of days the cold weather affected him badly and he could not continue working.
27 When Toll IPEC took over from the first defendant, the plaintiff’s employment was terminated on or about 14 November 2007 on the basis of a company restructure. The plaintiff believed he was terminated because he could not drive trucks and forklifts and that the job he had was not a “real job in the real world.”
28 The plaintiff became interested in sign writing in October 2006 when he was still employed by the first defendant. He purchased a computer and cutter for three to four thousand dollars from a friend who had ceased trading. The money was given to him by a relative.
29 In October 2006, the plaintiff set up business as JR Airbrushing and Signs. He registered the name and operated as a sole trader. When he started the business he advertised by business card, which he had printed and he distributed to local shops.
30 The plaintiff conducts his business in a shed in his backyard. He uses the computer to generate lettering and layout and the computer transfers lettering and images onto a plotter. The plotter cuts out the designs on vinyl film which he then tapes to tin or other surfaces. The plaintiff does not do any actual cutting. He has to weed the vinyl which involves pulling out the vinyl that is not being used, with a little pick, and the vinyl is then taped and applied to whatever surface is being used.
31 The plaintiff’s daughter assists him in doing more complicated computer design work. He does not pay her but if he had to employ someone to do her job they would be paid $18 per hour. The plaintiff is also assisted by his son or friends in putting up the signs because he lacks the strength in his left upper limb to do the job himself.
32 The plaintiff initially explained that he charged his services out at $35 to $40 an hour. There was no further charge for erecting the signs. Later in his evidence, the plaintiff said that he did not really charge an hourly rate – he just gave a quote. He tries to work out the cost of a job and how much he should make, depending on the materials to be used, and he comes up with whatever is fair.
33 The plaintiff charged $650 for the work he completed on 27 January 2009. Having designed and cut the sign on his computer, he spent an hour and a half on that date finishing putting up the sign, having spent six hours on an earlier date at the job site.
34 The plaintiff has been in receipt of New Enterprise Incentive Scheme (NEIS) payments of $430 a fortnight since September 2007. NEIS is a government scheme to assist people starting their own business. The plaintiff initially underwent a six-week training course as part of the scheme.
35 The plaintiff’s business is now called Sign Lord. The name was changed only a few weeks ago. The plaintiff changed the name because no-one seemed to understand what JR Airbrushing and Signs meant.
36 The plaintiff was required by NEIS to advertise in the Yellow Pages at a cost of $1,200. He presently leases a new computer with a proper graphics package known as SignMaster. His lease payments are $1,200 per year.
37 The plaintiff cannot really develop the business far because of his capacity for work. He does not find it so hard operating the machine and the computer – his big problem is trying to apply the vinyl to a surface. He only buys smaller rolls of vinyl because he cannot lift bigger ones. He uses a squeegee with his right arm and holds the vinyl up with his left. He has trouble holding the vinyl up because his left arm fatigues and sometimes he drops the vinyl.
38 The plaintiff takes work as and when it comes, providing it is not too big a job, which he would then knock back. He has knocked back a few jobs because they were too big for the computer cutting machine. Further, a lot of people want printed work which is all done on a wide format printer which is “out of his league”. He has also knocked back work because he physically cannot not do it.
39 The amount of time the plaintiff spends in his business varies a lot over the course of a week. Sometimes he works for 12 hours, and pretty rarely he works for 15 hours. His work hours fluctuate depending very largely on the amount of work coming in and what he feels he can do.
40 The plaintiff does not know if he sees the business as a future for him because he does not know how long he will be able to do it for. He is probably slower than most tradesmen/people who do that sort of work. He supposed he could do more than his present workload and he could do 20 to 25 hours a week if the work was not constant.
41 The plaintiff did not think the business would expand to the point where it was going to support him. He agreed he was operating the business to make money. The plaintiff agreed that what the business is making now does not reflect his physical limit; it just reflects how much work is coming in. He could do a bit more if it came in and that is the aim of the advertising campaign. He does not know until the work comes in whether he could actually do it. He wants the business to get a bit better and to expand but he does not want it to be huge because he knows he would not be able to handle it. He can handle it just as far as he can push himself.
42 In re-examination, the plaintiff said if he had the work, he could not work 8 hours a day, 7 days a week, and he probably could not work 4 hours a day.
43 In the 2007/8 financial year, the plaintiff’s gross income from the sign writing business was $10,515 with expenses of $11,234, resulting in a net loss of $719. The plaintiff also worked for the first defendant until November 2007 and earned $16,567.
44 Since November 2007, the plaintiff has applied for part time vinyl weeding work at Michael Signs, John King Signs and Bicknell Signs, and Line in Shepparton. He was unable to get work with these business as there were no jobs available.
45 The plaintiff would be unable to work full time in a sign shop because of the cold. He would also have difficulty working with the heavy rolls of vinyl which are used in bigger print shops. He agreed he would not have to handle heavy rolls all the time, and whilst there might be difficult moments, he did not really know how he would cope with this type of work until he got the opportunity. He would probably give it a go.
46 The plaintiff had one day’s work at Goulburn Valley Signmakers in 2008. He worked for about 6 hours and he was paid $90.
47 If he was offered work as a gateman/despatch clerk, the plaintiff could do that work but he did not think he had good telephone skills and he lacked computer skills. The computer sign/graphics program he uses in his business is his only computer skill. He doubted whether he would get on top of a new computer program such as would operate at a gatehouse. He has not applied for that type of work.
48 Working as a traffic controller in an open air situation would be a problem in winter because of the cold. He has not applied for traffic controller work but is prepared to give it a try. He agreed he did not know how he would cope with gatekeeper or traffic control work until he tried.
49 The plaintiff agreed that physically, other than his left arm, he was in largely good health and he had a completely normal dominant right hand. He could sit, stand or walk as required.
50 When cross examined about his 2006-2007 tax return, the plaintiff explained he did not declare any business income as he had been advised by his tax agent that his business income was too small to mention. The plaintiff denied having done any cash work which he had not declared.
51 When asked about the profit and loss statement for the business between July and December 2008, the plaintiff agreed the ordinary income figure was $7,765.33. He did not agree that amount represented income based on $35 an hour. The amount represented money paid by his customers and some of it was his own money.
52 The expenses of the business in that six months were as follows: accounting fees $1,270; computer lease $623; insurance of materials $1,365; cost of materials $3,458; car expenses $1,158; telephone $584; tools $488; and personal drawings $950.
53 At home the plaintiff attempts to carry out domestic activities, although hanging out the washing is difficult because it involves raising his left arm and also holding the clothes. He tries to dry the dishes but he has broken a few plates because he has problems holding them with his left hand.
54 The plaintiff’s house is on a half acre block. He uses a ride-on mower and uses his right hand and arm to do most of the heavy twisting and turning. He cannot use a whipper snipper because it requires the use of both arms. He cannot pull out weeds because his left hand is just too sore. He used to do home maintenance tasks before the incident. He now does a little bit around the garden and he gets assistance from friends with heavier tasks.
55 The plaintiff enjoyed game fishing before the incident. He now does a little bit of river fishing but no longer goes game fishing because he cannot handle a heavy rod with his left hand. The plaintiff has not been camping lately and probably last went camping before the incident.
56 The plaintiff still owns a motorbike which he has not ridden for the last four to five months. Since the incident he has only ridden it a little bit, not to the extent he did prior to suffering injury. He rides locally and would not be able to ride a greater distance, such as from his home to Melbourne.
57 The plaintiff can hold a fork in his left hand but it is awkward. He tends to use his right hand for day-to-day activities. Sometimes he uses his right hand for the column shift in his automatic car. It is awkward doing up a shoe lace or a shirt button as he cannot spread the fingers in his left hand.
58 In winter the plaintiff regularly wears gloves as in the cold his hand goes blue. He wears a thermal glove under a normal woollen glove.
59 The plaintiff is right-handed. He has lost considerable power in his left hand and arm. He can no longer do any heavy lifting and he uses his left hand only to support some objects. He tends therefore, to overuse his right hand which has caused it to become weaker. He has significant difficulties doing tasks as minor as holding a coffee cup or cleaning his teeth with his left hand.
60 The plaintiff regularly has left hand and arm pain. He used to frequently take painkilling medication, such as Nurofen, Panadeine and Tramadol, avoiding stronger drugs as they caused him to become drowsy. The plaintiff is presently prescribed Endep. There is no treatment that has been suggested for him that he has not undertaken. Physiotherapy ceased because it was not giving him any benefit. The plaintiff continues to see his general practitioner, Dr Sanders, but he has not seen his treating specialists for some time.
The Plaintiff’s Medical Evidence
61 Clinical notes from Dr Sneyd’s Clinic were tendered, detailing attendances from 29 January 2002 until 8 June 2007. The plaintiff attended the Clinic from 25 August 2005 in relation to his left upper limb injuries.
62 Dr Sanders of the Clinic reported to QBE in March 2007 that the plaintiff’s condition was wasting of the ulnar and thenar eminence due to ulnar nerve neuropathy at the elbow. She noted the plaintiff had significant wasting of the small muscles in his hands.
63 Dr Coulthard saw the plaintiff once at the Clinic in July 2008 when he prescribed him Tramadol. He considered the plaintiff had developed symptoms of ulnar neuropathy and reflex sympathetic dystrophy following the incident which had continued to cause limb pain.
64 The plaintiff has attended Shepparton Sports and Spinal for physiotherapy treatment relating to severe ulnar degeneration of his left upper limb
65 The plaintiff was referred by Dr Sneyd to Mr Critchley in November 2005. Mr Critchley considered the most likely diagnosis was that the plaintiff injured his ulnar nerve in Guyon’s canal and he may have either a fractured hook of the hamate or a fractured pisiform. Following an MRI which showed a probable minor scapholunate lesion, Mr Critchley referred the plaintiff to Mr Patel.
66 On 27 February 2006, Mr Patel performed the first operation which involved a left wrist arthroscopic TFCC and radial gutter debridement. The ulnar nerve was also decompressed. On 24 October 2006, Mr Patel performed the second operation – a left ulnar neurolysis and anterior transposition of the ulnar nerve.
67 After the second operation, Mr Patel last reviewed the plaintiff on 20 December 2006, at which time the plaintiff was making a slow but steady recovery. Mr Patel noted that the clawing of the plaintiff’s hand certainly looked better. There were still problems with the abductor muscle size and weakness. He noted the plaintiff’s left wrist had recovered very well with a full range of motion and no pain or discomfort.
68 The plaintiff was examined by Associate Professor Wallin on 13 March 2008. Dr Wallin noted the history confirmed the plaintiff suffered a not gross stress fracture of his left scaphoid and a major complex tendon tear in his left wrist region. He also suffered a primary or secondary left ulnar nerve injury.
69 Dr Wallin considered the plaintiff was currently very marginalised in the workforce and that he was presently permanently unfit to return to his normal truck driver duties. He was unfit to perform a substantial component of any of the machinery driving duties he had previously performed. At that stage he considered the plaintiff was fit for a very minimal light duty work program.
70 Dr Wallin thought, because of his ongoing left arm disability, the plaintiff realistically could engage in only fairly light, effectively desktop or mild office administration duties requiring only very minimal use of the left hand. He could probably engage in a very minimal amount of computer keyboard use of his left hand, such as in his current business. The plaintiff would not be able to drive for long distances and he could not then work as a taxi driver or delivery driver. Dr Wallin considered on the open job market there appeared to be a significant difficulty in identifying any type of job which the plaintiff could be provided with within the area where he lived. He thought the plaintiff’s disability and impairment was permanent.
71 Dr Wallin re-examined the plaintiff on 13 November 2008. He confirmed the plaintiff had in fact not improved since the previous examination. Dr Wallin’s examination confirmed stabilised ulnar nerve impairment and diminished movement of the left wrist. Based on the lack of improvement, he believed the plaintiff had a very poor long term prognosis. He considered the plaintiff remained permanently unfit to perform a substantial component of any of the duties he had done previously and that the plaintiff remained very marginalised in the workforce.
72 The plaintiff was examined by Mr Kevin King, orthopaedic surgeon, on 24 June 2008. The plaintiff complained to him of persistent generalised aching pain in the whole of his left hand and wrist, worse on the ulnar border of the hand, and associated with numbness and tingling in the ulnar nerve distribution to the little and ring fingers. He complained of generalised overall weakness of the hand, particularly of the flexor muscles to the fingers, and persistent hypersensitivity in the scar over the inner side of the elbow.
73 On examination, Mr King found a well healed scar over the medial aspect of the left elbow which was rather hypersensitive. There was a full range of flexion and extension.
74 Mr King found there was quite marked generalised wasting of all muscles in the flexor compartment of the plaintiff’s left forearm, particularly the ulnar half. There was obvious generalised quite severe wasting of the hypothenar and first dorsal interosseous muscles of the left hand with mild trophic changes in the ulnar nerve distribution of the left hand. There was marked muscle weakness in the hand consistent with quite severe generalised ulnar nerve palsy. There was moderate wasting of the thenar muscles, possibly due to disuse, at the base of the left thumb.
75 Mr King found classical signs of a severe ulnar nerve palsy, together with generalised wasting of muscles in the median nerve distribution.
76 In Mr King’s view, the plaintiff had suffered a severe ulnar nerve lesion in the left upper limb consistent with the incident. He considered it was going to be difficult for the plaintiff to find suitable work as his capacity to use his left hand for anything other than light steadying tasks was extremely difficult. Mr King considered the impairment permanent and thought the plaintiff unfit for any work which involved significant use of the left hand for gripping, twisting, straining or pushing.
77 Dr Helen Sutcliffe, occupational physician, examined the plaintiff on 19 November 2008. In her view, the plaintiff permanently had no capacity for any occupation for which he had training, expertise or experience, taking into account the nature of the work-related injury, his age, background, education and past work experience. She considered it unlikely the plaintiff could sustain employment in his own business, which she considered a niche employment without the benefit of family and friends.
78 Dr Sutcliffe did not consider the plaintiff had any capacity for the jobs set out in the HealtheWork Report. She thought he had no capacity for the use of keyboards in an occupation, nor did he have any capacity for the use of forklifts, for carrying or lifting in an occupation and no capacity for the positioning, lifting and application of signs as required.
Investigations
79 Since the incident, extensive investigations of the plaintiff’s left upper limb have been carried out, including plain x-rays, MRI, nerve conduction studies and ultrasounds.
80 Whilst the plaintiff suffered some damage to the scaphoid and the cartilage in the incident, which counsel for the defendants submitted had largely recovered, it has been effectively conceded by the defendants that the nature of the plaintiff’s injury is an ulnar nerve neuropathy which is organically based. Therefore, I am not required to consider the investigation results further.
Vocational Evidence
81 Ms Katrine Green provided a vocational assessment dated 4 November 2008.
82 In Ms Green’s view, the duties the plaintiff performed during 2007 were to be considered ad-hoc and did not represent an occupation. Considering the medical opinions provided and the physical demands of the core duties involved in work as – a truck driver, delivery driver, courier driver, taxi or chauffer driver, forklift driver and product assembler – due to the plaintiff’s left hand injury and his current physical capacity, she thought the plaintiff was unable to perform the inherent duties of those occupations or the inherent duties of any suitable employment.
The Defendants’ Medical Evidence
83 Mr Hugh Weaver, orthopaedic surgeon, examined the plaintiff on 17 March 2008. He thought the plaintiff’s problem appeared to be one of a combination of bony and soft tissue injuries. He considered the plaintiff might cope with ongoing employment as a truck driver but that he would probably have to have a lot of ongoing support. However, he thought it would be conceded the plaintiff might not resume driving activities. He thought the plaintiff had a capacity for suitable employment and, for that reason, he suggested that if the plaintiff failed to resume driving activities, then a vocational assessment and subsequent retraining would have to be provided for him.
84 Mr Weaver said he was obviously a little reluctant to suggest there was necessarily a permanent incapacity present, although he accepted the plaintiff might genuinely find it difficult to return to driving activities at any time in the future.
85 Mr Damian Ireland, hand surgeon, examined the plaintiff on 7 January 2009. In his view, the plaintiff had a severe compromise of the left ulnar nerve at the elbow, and wrist pain and wrist stiffness of some uncertain origin. He thought it most likely the plaintiff had sustained an injury to the ulnar nerve by direct trauma at the elbow in the incident.
86 Mr Ireland thought the plaintiff was extremely disabled by his current condition and that he required further investigation and treatment in the form of an EMG and nerve conduction tests with a comparative analysis of all tests performed to date. Mr Ireland thought that testing needed to be followed up with specialist imaging of the ulnar nerve at the elbow using either ultrasound or MRI. He considered it highly likely that the plaintiff would then require further surgical treatment to the ulnar nerve and that it was not possible to prognosticate at that stage without those preparatory investigations.
87 Mr Ireland considered the plaintiff’s current prognosis was poor and whether or not it improved would depend upon the appropriateness of further surgery to the ulnar nerve, which required the investigations he detailed.
88 In Mr Ireland’s view, the plaintiff had no capacity for his pre-injury work as a truck driver due to pain, stiffness and weakness of grip strength. He considered the plaintiff was suited for non-manual work. He noted the plaintiff was currently coping without difficulty with his 10 hours a week as a sign writer.
89 Mr Ireland believed the plaintiff could double his hours in that capacity and that the plaintiff would be suited for light manual work in other areas. He noted the plaintiff’s limited educational background and geographic location do not offer many such opportunities.
Video Surveillance
90 Approximately an hour and a half of video footage was shown of the plaintiff carrying out sign writing duties on the front window of a local shop on 27 January 2009.
91 The defendant admitted video surveillance had been conducted on numerous occasions and that there was 12 minutes of film not shown.
92 The plaintiff was shown at various times using both arms to perform various tasks. He carried out significant tasks using his right hand. He was able to hold various items, including a mobile phone, papers and vinyl in his left hand.
93 In cross examination, the plaintiff agreed he could not point to anywhere in the video where he was shown having difficulties with his left hand, but he knew he did so whilst carrying out the work. The work which he took an hour and a half to complete would be done in half an hour by someone with the full use of their hands.
94 I accept that the plaintiff was not shown in the video engaged in or performing any activity inconsistent with his evidence.
Financial
95 The defendants tendered the plaintiff’s taxation return for the financial year 2006/7, together with the profit and loss statement of the plaintiff’s business for the period July to December 2008.
96 In the 2006/2007 return there was no reference to any income from the plaintiff’s business.
Vocational Evidence
97 Details of the duties of a groundsman at the first defendant’s Shepparton property in June 2007 were tendered. That job involved undertaking the role of traffic controller, attending to minor site facility and plant repairs and maintenance, undertaking facility cleaning on a daily basis, maintenance of terminal grounds as directed and daily inspection of the terminal’s housekeeping standards.
98 A number of return to work plans were tendered relating to the plaintiff’s return to work in early 2007 until his employment was terminated in November that year. The duties involved relief traffic controller, forklift operator, loading checks, restricted truck driving and inwards goods dispatch.
99 A labour market analysis was carried out by HealtheWork on 9 February 2009. It was requested to provide job descriptions, information relating to qualifications and wage information regarding sign writing, traffic controller and despatch clerk jobs.
100 The report set out that a self-employed sign writer could command an hourly rate from $65 to $70. A traffic controller, after a three-month probation could expect to earn $18.85 per hour. A despatch clerk could expect to earn from $20 to $25 per hour.
Impairment Consequences
101 The impairment to the plaintiff’s left upper limb must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, as at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
102 The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against possible impairments not necessarily in the same category: see Humphries v Poljak [1992] 2 VR 129, at 170, and accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26.
103 In addition to being “serious” the impairment must be permanent, in that it is likely to last into the foreseeable future.
104 There is no dispute in this matter that the plaintiff suffered a compensable injury during the course of his employment on the said date, the nature of which has been effectively conceded to be an ulnar nerve neuropathy.
105 Whilst the question of seriousness was not conceded in relation to pain and suffering, no submissions were made by counsel for the defendant in this regard. It was conceded that there was evidence upon which a finding of serious injury could be made. Brief mention was made as to the issue of permanence raised by Mr Ireland, but it was conceded that Mr Ireland did not say that any further surgery would necessarily improve the plaintiff’s condition.
106 It was submitted by counsel for the defendants that the critical issue in this case was whether or not the plaintiff satisfied the pecuniary loss aspects of the Act.
107 Not surprisingly in these circumstances, save for matters relating to the plaintiff’s capacity for suitable employment, the plaintiff’s evidence was largely unchallenged.
108 I accept that the plaintiff, a man with a history of manual work, is no longer able to engage in unrestricted manual work involving the use of both hands. He can no longer work as a truck driver – a view supported by all medical witnesses, save for Mr Weaver.
109 The plaintiff is unable to engage fully in household domestic and maintenance tasks. He no longer enjoys game fishing because of problems controlling a heavy rod with his left hand. He is restricted in his ability to ride his motor bike.
110 Despite undergoing surgery on two occasions, the plaintiff has suffered, and continues to suffer, pain in his left arm and hand – pain that is particularly bad in winter when he requires the use of a thermal glove. He has undergone physiotherapy treatment which has not improved his condition. He continues to require daily use of painkilling medication.
111 The plaintiff’s left forearm is wasted and he lacks muscle power and control in his hand. There is also some muscle weakness in his left little and ring fingers.
112 Taking into account alI the evidence, I find that the plaintiff has a serious injury in relation to his left upper limb. I accept that the plaintiff’s impairment has consequences which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable”, and “more than significant” or “marked”.
Loss of Earning Capacity
113 Having satisfied the narrative requirements, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing he has a loss of earning capacity of 40 per cent or more – S.134AB(38)(e)(i); and also (b) after the date of hearing the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii). 114 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 115 The former must be calculated by reference to the six-year period specified in s 134AB(38)(f).
116 “Without injury” earnings consist of 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 had the injury not occurred.
117 It is to be calculated by reference to that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker’s earning capacity.
118 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein. That onus is not discharged by the rejection of the defendants’ calculations or even of their witnesses altogether on this topic: see Barwon Spinners (supra), at para 70.
119 I am therefore required to determine a “without injury” earnings figure.
120 The parties agreed that the “without injury” earnings figure was $46,712, being the plaintiff’s gross earnings in the 2004/ 2005 financial year. 60 per cent of that sum is $28,027.
121 Thus, to succeed in this application, the plaintiff must establish that he does not have the capacity to earn in excess of $28,027 and that such a situation is permanent.
122 The amount of plaintiff’s gross earnings from personal exertion at the date of the hearing are difficult to determine as he is self employed and his evidence as to the basis upon which his business charges clients is unclear.
123 Counsel for the plaintiff submitted there was no suitable employment the plaintiff was capable of doing where he could earn 60 per cent or more of his “without injury” earnings.
124 Counsel for the plaintiff submitted that the job with the first defendant in 2007 was not a real job and was not evidence of the plaintiff’s capacity for full time employment. Further, it was submitted that the plaintiff’s present business is only a niche employment and that, in any event, the plaintiff still suffers the requisite loss of earning capacity in operating that business.
125 Reliance was placed on the plaintiff’s 2007-2008 taxation return which set out the gross takings of the business were only $11,000. In such circumstances, it was submitted that whatever approach was taken in relation to the expenses of the business, the plaintiff established the requisite loss.
126 It was submitted the plaintiff was a witness of truth. Whilst, of course, he was hopeful of making money in his business, the reality is that since he bought the equipment he has not earned anywhere near $28,027 and if business expenses were to be deducted from the actual earnings, establishing the requisite loss would be a “lay down misère”.
127 Reliance was placed on the only vocational assessment carried out by Katrine Green and her view that the plaintiff was not fit for any work. Furthermore, Dr Sutcliffe, an occupational physician, considered the plaintiff’s present business as niche employment and thought that he was unfit for any of the jobs suggested on the defendants’ behalf.
128 Counsel for the defendants submitted that whilst the work done by the plaintiff during 2007 involved an aspect of job creation, the gateman/despatch job was a real job and the plaintiff was also required to perform a variety of duties during that time as a cleaner, forklift operator and general yardman. On this basis, it was submitted it would be nonsense to say the plaintiff had no capacity for employment.
129 Further, there was no real suggestion by the plaintiff that his left arm injury inherently physically prevented him from working as a gatekeeper or traffic controller. The only problems he mentioned he would have in performing these duties were the cold weather and his lack of computer skills. However, he conceded, in relation to both jobs, he was prepared to give them a go and he would not know how he would cope until he actually tried.
130 The plaintiff has also applied for part time jobs in sign writing shops. He was unsuccessful obtaining work because there was no work available. The only problems he would have working full time in a sign shop would be the need to handle heavy rolls of vinyl and he would have problems with the cold weather.
131 Further, it was submitted it would be nonsense to realistically suggest other than that the plaintiff has effectively invested time and money to get his business going and it was beyond belief to suggest he did not have a hope at least of an expectation that it will grow.
132 Taking into account all the evidence, I am not satisfied that the plaintiff will suffer a permanent loss of income to the requisite threshold.
133 I believe the plaintiff has the physical capacity to undertake more work in his own business than he presently does and that his workload, whilst influenced by his physical capacity, is determined in the main by the workload of the business. On his own evidence, the plaintiff has capacity to work between 20 and 25 hours per week, albeit not on a constant basis.
134 I found the plaintiff’s evidence in relation to his business aspirations, or lack thereof, somewhat hesitant. He did not establish with any degree of detail the manner in which his work is costed, ultimately resiling from his evidence that he charged on an hourly basis.
135 Taking into account the plaintiff’s evidence that he was paid $650 for the design and cutting of the sign involved in the job completed on site on 27 January after an hour and a half work with six hours work having been done on an earlier occasion, I do not accept that the plaintiff lacks the physical capacity to perform at least one job of this nature per week if the work is in fact available.
136 I do not accept that the plaintiff is capable of working only 12 to 15 hours per week as he maintains. In any event, on his own evidence he does not know his true capacity until he tries longer hours and believes he could work 20 to 25 hours with rest breaks. On one view of his evidence as to his charge out rate even if he worked only 20 hours per week at $35-40 per hour, the plaintiff would earn in excess of $700 gross per week.
137 I do not accept that the plaintiff would be unable to work on other than a part time basis in a sign making shop. He would be working inside so he should be unaffected by the weather. He agreed that whilst there might be difficult moments with lifting, he could do the job and he would probably try such work if it was available and he would not know until he tried whether or not he could cope.
138 Further, I am not satisfied that the plaintiff does not have the capacity to work full time in other employment. I consider a number of the tasks involved in the 2007 return to work plan were real jobs which the plaintiff largely coped with, with little time off work. There was no suggestion by the plaintiff that had his employment not been terminated in November 2007 that he would have been unable to continue working full time in these duties.
139 I am not satisfied the plaintiff would be unable to work as a gateman, traffic controller or despatch clerk. The cold weather and lack of computer skills, in my view, does not preclude the plaintiff undertaking these tasks on a full time basis. The plaintiff himself said he would be prepared to give these jobs a try and it would not be until then that he could say whether he could cope with the work or not.
140 I do not accept that the plaintiff does not have the ability to do further computer training, such as may be required to carry out gatekeeper work, given he is capable of operating a technical computer program in his own business.
141 Based on the wage details for these jobs set out in the Healthework Labour Analysis, the plaintiff would earn in excess of $28,027 performing these jobs full time.
142 I found Dr Sutcliffe’s evidence of little assistance. I accept the submission by counsel for the defendants that Dr Sutcliffe does not offer any real explanation as to the reasons for her conclusion that the plaintiff is effectively unfit for any work. She does not explain why he could not work in traffic control or as a gatekeeper. She dismisses the range of duties he undertook on his return to work in 2007 as ad-hoc without any analysis of the duties the plaintiff was actually undertaking. There is a similar bland statement as to the plaintiff’s incapacity in Ms Green’s report, without any explanation of her finding.
143 In all the circumstances, I do not accept that the plaintiff has permanent loss of earning capacity of forty per cent or more.
144 Accordingly, I grant leave to bring proceedings for damages for pain and suffering and I dismiss the plaintiff’s application in relation to loss of earning capacity.
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