Selman v Downer EDI Works Pty Ltd
[2018] VCC 694
•30 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-02176
| JASON SELMAN | Plaintiff |
| v | |
| DOWNER EDI WORKS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 April 2018 | |
DATE OF JUDGMENT: | 30 May 2018 | |
CASE MAY BE CITED AS: | Selman v Downer EDI Works Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 694 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – application in respect to pain and suffering damages and pecuniary loss damages – plaintiff employed as a welder on a “fly-in, fly-out” basis in Western Australia – substantial earnings – injury to the plaintiff’s dominant right hand as a result of welding work – reliance upon sub-paragraph (a) of the definition of serious injury – plaintiff’s subsequent return to various short term employments and work – whether earnings from these fairly represent post-injury earning capacity – approach to be adopted in relation to calculation of economic loss – whether burden of proof satisfied in relation to both heads of damages – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Ms C Moore | Nowicki Carbone Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahoney |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff is seeking leave to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages – see Transcript (hereinafter referred to as “T”) 2. In so doing, the plaintiff relies upon sub-paragraph (a) of the definition of “serious injury” found in s134AB(37) of the Act. The injury is one to the plaintiff’s dominant right hand and lower arm. It is alleged that the injury arose out of or during the course of the plaintiff’s employment with the defendant from approximately mid-2012 until October 2012. The plaintiff was essentially employed by the defendant as a welder. He was so employed as a “fly-in, fly-out” worker and the duties in which he was engaged involved the construction of a railway line in the vicinity of Port Hedland in Western Australia, this proposed line to be used in connection with mining activities.
2 Whilst leave in respect of pain and suffering damages was far from conceded, it was stated by both sides that there was going to be a lot of concentration upon the issue of economic loss – see, for example, T16. In this regard, essentially it was submitted by the defendant that, if the plaintiff succeeded on economic loss, as a result he would also obtain leave in relation to pain and suffering – see, for example, the decision of the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and various decisions of this Court. It was suggested by the defendant that, if the plaintiff should fail on the issue of economic loss, he “doesn’t get near” leave in respect of pain and suffering. Certainly matters of economic loss were at the forefront of cross-examination, re-examination and the submissions. That the plaintiff suffered injury to his lower right arm, wrist and hand was not disputed and statutory benefits, including medical expenses, were paid by the defendant.
3 Mr A Ingram of Counsel with Ms C Moore of Counsel appeared on behalf of the plaintiff. Mr C Miles of Counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of three affidavits as being true and correct. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
Factual background
(a) The plaintiff’s background prior to suffering the injury
4 The plaintiff is aged 40 years, he having been born in May 1978. He is a single man. He was educated to Year 10 level, leaving school at age seventeen. He was originally apprenticed as a carpenter and was so employed for approximately 3 ½ years. He then worked for a period as an employee fencing contractor, before setting up his own business and doing fencing work for approximately four years. He then performed labouring work in Queensland in the area of civil construction, before returning to Melbourne and determining to obtain a career in the mining industry in Western Australia. He worked as a track labourer at Port Hedland before returning to Victoria and obtaining work undertaking railway track welding. From there, he obtained employment with the defendant, commencing with it in October 2008.
5 With the defendant, the plaintiff was originally performing thermite welding and, in order to perform some of the work which he was allotted, he had to qualify as a flash butt welder, which he did. In mid-2012, the defendant obtained the contract to build a railway line at Port Hedland and the plaintiff had to drive a welding vehicle from Victoria to Western Australia in order to set up the project.
6 Accordingly, in mid-2012 the plaintiff commenced working as a flash butt welder on this project. The work output was very large and onerous according to the plaintiff. The plaintiff developed some pain, numbness and tingling in his right wrist and extending into his right hand. At the time, he was working “two weeks on and one week off”, working a 12 hour daily shift, working seven days a week during the weeks “on,” and returning to Victoria for the week “off”. It was whilst performing this work that the plaintiff developed the symptoms described above. He carried on for a while but ultimately saw a surgeon, Mr Roland Hunt, in Shepparton. It should be said that the plaintiff’s home is near Violet Town.
(b)The plaintiff as a witness
7 I have absolutely no hesitation in accepting the plaintiff as a witness of truth. In his closing address, Mr Miles, on behalf of the defendant, stated that, in his submissions, he was not being critical of the plaintiff’s credit – see T102. I also informed those present that I had no problem or difficulty in relation to the plaintiff’s credit – see T104. That remains my view. I consider him to have presented as a particularly frank, straight-forward and reliable witness. I note that Dr Joseph Slesenger, occupational physician, examining the plaintiff at the request of his solicitors, noted that the plaintiff gave a clear and consistent account of his injuries and that is also an observation with which I would agree.
(c)The state of the plaintiff’s health prior to the injury
8 In his affidavit of 6 December 2016, the plaintiff has sworn that he had not previously suffered from any injury to or impairment of the function of his right wrist or hand. Associate Professor Myers, general surgeon, who examined the plaintiff at the request of his solicitors, noted that there was no relevant past history, something which is also recorded by Dr Michael Baynes, occupational physician, who examined the plaintiff at the request of the defendant. I accept that, prior to the injury, the plaintiff was in good health and had no history of right hand or arm problems or of any condition that would inhibit his ability to engage in demanding physical work.
(d)The injury, its treatment and diagnosis
9 It would appear that the plaintiff was referred to Mr Hunt by Dr Sharmini Kumar, a general practitioner based in Laverton North. Given that the plaintiff lives near Violet Town, how he came to see Dr Kumar is not clear. It may be that Dr Kumar was a “works’ doctor”. No report from Dr Kumar or his colleagues was placed before me, but I am not of the view that any great significance attaches to that. It would seem that the plaintiff saw Dr Roberts and Dr Wong at the same clinic, namely Medibank Health Solutions. He would not appear to have attended at that clinic since 12 June 2013.
10 In any event, Mr Hunt reported to Dr Kumar on 10 October 2012. Mr Hunt had sent the plaintiff for an ultrasound of the right wrist on 8 October 2012. The conclusion of the radiologist was that there was median nerve compression within the carpal tunnel. Accordingly, Mr Hunt decided to proceed with decompressive surgery.
11 This surgery was performed on 29 October 2012. Mr Hunt found the flexor retinaculum was quite thick, particularly distally. It was completely divided and partly resected. The immediate result of the surgery was very satisfactory, although Mr Hunt delayed the plaintiff’s return to work, because of the “very physical nature of his employment”.
12 Mr Hunt reported directly to the defendant’s insurer on 13 June 2013. In this report, he recorded that the plaintiff had been seen on 17 December 2012, when he stated that the wound was too sore for him to return to his pre-operative work. The plaintiff described the “quite extraordinary physical activity” which he undertook as a welder on train lines, and the fact that this put great pressure on his wrist. Mr Hunt certified him as being unfit for work until 14 January 2013. He saw the plaintiff again on that day, when the plaintiff reported that he had been performing an exercise advised by his physiotherapist. His carpal tunnel symptoms were gone, but he was still getting some discomfort from the distal wrist. Mr Hunt saw him again on 4 March 2013. At this stage the plaintiff was performing light duties at the defendant’s Melbourne depot, but still had some aching in the wrist. Some of this was at the site of the operation, but most of it was proximal. Another ultrasound was performed on 25 February 2013. The conclusion of the radiologist was that there was mild flexor digitorum tenosynovitis. Mr Hunt considered that this could possibly explain the plaintiff’s symptoms. He was prescribed Nurofen and Voltaren, given instructions in relation to hand stretches at home, and referred to an occupational therapist with a particular interest in hand therapy. Mr Hunt mentioned that the plaintiff used his hand in a very physical way at work. He now appeared to have a second diagnosis, even though the original surgery was appropriate and effective.
13 It would appear that the plaintiff underwent a second wrist operation, this being performed by Mr Francis Miller, general surgeon, at the Benalla Hospital on 28 January 2014. Whilst the operation record has been tendered, along with a brief letter from Mr Miller, there is no detailed report concerning this surgery. The operation notes are not particularly easy to read, but would seem to indicate that an incision was made to the palm and that the flexor retinaculum/scar tissue was divided.
14 Three reports have been obtained from Dr Huei Fahn of the Benalla Church Street Surgery. Dr Fahn could be described as being the plaintiff’s personal doctor at the time. Dr Fahn reported to the plaintiff’s solicitors on 18 February 2015, this report covering events back to 25 June 2013. At that stage, the plaintiff was seen at the Benalla Church Street Surgery for problems relating to his right carpal tunnel syndrome following the surgery performed by Mr Hunt in the preceding October. The plaintiff was still suffering pins and needles in the right hand. It was noted by Dr Fahn that Dr Andrew Miller, who had apparently seen the plaintiff at the request of the defendant, had reported that, when seen after the first surgery, the plaintiff was still having symptoms of discomfort, pins and needles over the right wrist to the forearm and mild weakness in the right hand grip strength.
15 When examined on 25 June 2013 by Dr Fahn, the plaintiff’s right hand showed mild atrophy on the thenar area, a focal area of reduced sensation over the right palm and thumb and up to 3 centimetres above the right wrist skin crease, and a positive provocation sign on the right wrist scar area when percussed.
16 Dr Fahn further commented that, on 18 September 2013, a nerve conduction study was conducted by a neurologist, Dr Steven Ring. This showed “no electrophysiologic median neuropathy on either side”. Dr Fahn regarded the plaintiff’s condition as now being stable and a physiotherapist cleared him to perform his normal duties. However, Dr Fahn considered that there was a possibility that returning to the same level or work activity and load could contribute to a flare-up of symptoms in the same wrist. Dr Fahn concluded by commenting that the plaintiff had undergone two surgical procedures, along with steroid injections and physiotherapy. However, his symptoms were still present, but had not shown on any of the objective investigations, such as nerve conduction study and “physiologist assessment”. Dr Fahn described the prognosis as being “as good as he is at the moment”, presumably being as at 18 February 2015.
17 Dr Fahn reported again on 18 April 2016, having last seen the plaintiff on 18 January of that year. The plaintiff’s condition had remained stable. He was still complaining of pins and needles and sharp pain sensation when using his right hand to grab tools at work. A further ultrasound was performed on 26 February 2016. This was normal (it would appear that this ultrasound was in fact performed on 18 February 2016). It is also apparent that, at this time, the plaintiff was intending to change doctors to those at the Violet Town Medical Clinic, presumably because he lives near Violet Town.
18 The plaintiff has also been seen for medico-legal purposes. Associate Professor Kenneth Myers, consultant general surgeon, examined the plaintiff at the request of his solicitors on 29 August 2017. Associate Professor Myers took an appropriate history. He also noted that the plaintiff said that he continues to get pins and needles into the radial three fingers of the right hand, and, if he uses this hand, the sensation goes into the additional fingers as well. Further, there would be a sharp pain like a hot needle going into the wrist itself. The plaintiff referred to difficulties associated with activities such as opening jars. He also referred to problems holding the reins if riding a horse. Associate Professor Myers diagnosed right carpal tunnel syndrome, with modest success from surgery and the development of a Chronic Pain Syndrome with central sensitisation. He considered the plaintiff’s medical condition to be stabilised. A range of activities including pushing, pulling, repetitive use, overhead activities and the like should be avoided as far as possible and their restricted use will remain indefinitely. He thought that the plaintiff has no capacity to perform pre-injury duties and that this will be permanent. Because of the plaintiff’s educational and vocational background, Associate Professor Myers thought that it would be extremely difficult for the plaintiff to obtain other forms of employment on either a part-time or full-time basis. He was aware of the plaintiff doing casual labouring jobs over the preceding three years, also noting that the plaintiff said that he would be lucky to do three or four months’ work in a year. Associate Professor Myers considered the prognosis to be guarded, with permanent restriction of social, domestic and recreational activities to a significant degree.
19 At the request of his solicitors, the plaintiff was seen by Dr Joseph Slesenger, specialist occupational physician, on 4 May 2017. He noted that the plaintiff had been employed by the defendant as a flash butt welder, which work involved forceful repetitive movements of the right hand and the manual handling of weights of over 30 kilograms. Dr Slesenger took an appropriate history of the medical treatment which the plaintiff had received. He also took a history of the plaintiff suffering ongoing pain in the palm of his right hand, particularly around the scar area, the pain being aggravated by activities such as pushing, pulling and gripping. On these occasions, the pain would radiate to the whole of the palm and into the thumb, index and middle fingers. With prolonged activity, it would also radiate into the other fingers. The plaintiff complained that the wrist was stiff, the hand feels weak and extension of the wrist causes pain around the scar site. He referred to an inability to use power tools, because of the vibration involved. The plaintiff also complained of becoming depressed, anxious and having disturbed sleep. He was continuing to see his general practitioner. The plaintiff was no longer seeing a physiotherapist and, by way of medication, was taking Nurofen Plus.
20 The history given by the plaintiff to Dr Slesenger in relation to work activities was that after surgery he had been unable to engage in flash butt welding and had worked in the defendant’s store sheds. Ultimately those alternative duties had been withdrawn. He had been unable to maintain work in labouring roles. He had returned to employment as a flash butt welder in Port Hedland for four months. He had been told that he would perform no more than two welds per day, but in reality up to 40 had to be done. Even two welds per day aggravated his symptoms, although he tried to manage the pain with analgesia and resting. Dr Slesenger noted that, in recent times, the plaintiff had completed a Certificate IV in Thoroughbred Horse Training, although the plaintiff gave evidence that he had not in fact worked as a trainer. He had performed some general duties for Racing Victoria, which duties shall be discussed.
21 Returning to Dr Slesenger, he noted that the plaintiff had basic computer skills, but had limited two-finger typing and was unable to use an Excel spreadsheet or perform any complex computer tasks. The diagnosis of Dr Slesenger was of right hand carpal tunnel syndrome requiring release on two occasions and of right hand chronic neuropathic pain. He considered that the plaintiff’s condition had, for the most part, stabilised. He was of the view that the plaintiff has residual restrictions in relation to his ability to perform repetitive or prolonged gripping with the right hand, forceful flexion or extension of the right wrist, use of power, vibrating or hand tools, prolonged typing or writing and fine forceful dextrous tasks, and effectively manoeuvring more than 5 kilograms with his right hand. Dr Slesenger did not think that the plaintiff could return to his pre-injury duties. Bearing in mind the plaintiff’s age, residential location, lack of qualifications, limited computer literacy and the like, Dr Slesenger was of the view that it was unlikely that the plaintiff would be able to return to a role for which he has suitable training and expertise. Dr Slesenger considered the prognosis to be guarded and did not anticipate a significant alteration in the plaintiff’s symptoms in the foreseeable future.
22 Having reviewed some further documentation, namely a report of Dr Michael Baynes (who examined the plaintiff at the request of the defendant) of 29 August 2017 and a suitable employment report of Recovre of 18 August 2017 (also obtained by the defendant), Dr Slesenger provided the plaintiff’s solicitors with a supplementary report of 20 September 2017. He did not see the plaintiff again. He noted that the plaintiff had obtained some work on a casual basis, including being a cleaner on rail sites. There is reference to such things in both the report of Dr Baynes and that of Recovre. Bearing this in mind, Dr Slesenger expressed the view that the plaintiff would have the capacity to work as a quality inspector or a point-to-point truck driver (both these prospective employments being with a manufacturing business in the Shepparton area), but did not regard him as being fit to work as a rubbish truck driver. He also considered that the plaintiff could work as an assembly worker; he had some reservations in relation to debt collector, gatehouse security and sales assistant; and advised against work as a cleaner or welder.
23 The defendant has also had the plaintiff examined. Mr Damian Ireland, a surgeon specialising in surgery of the hand, reported to the defendant on 13 April 2017. He took a history of the plaintiff using a jemmy bar to remove slag from welds many hundreds of time per day over a two month period. He also took a history of the surgical and medical treatment received. His diagnosis was of residual right hand sensory symptoms following the surgical treatment of carpal tunnel syndrome. He considered the residual symptoms as being likely to be due to surgical scarring around the median nerve. He found the history of onset of symptoms and the clinical presentation to be consistent. Mr Ireland formed the view that the activities described had caused the right carpal tunnel syndrome, rather than having aggravated any pre-existing predisposition to this. He considered that there was no evidence of any non-physical component to the presentation. In his opinion, the plaintiff should avoid any potential employment opportunity that requires prolonged gripping with the right hand or repetitious direct trauma to the palm of the right hand. However, he would be suited to appropriate employment on a full-time basis.
24 Dr Michael Baynes, occupational physician, has seen the plaintiff for the defendant on two occasions. The earlier of these was on 29 March 2017. He received a similar description of the plaintiff’s employment, including the use of the crowbar to remove slag from the welds. He also received a description of the plaintiff’s work after retrenchment from the defendant, including the fact that the plaintiff performed three months of work with BHP undertaking flash “bed” (presumably “butt”) welding in approximately June 2016. He was doing four welds per day, but was unable to continue when told that the number would be increasing to forty. He had also worked for RPR Trades, undertaking cleaning up of rail sites. The plaintiff was currently breeding some thoroughbred horses on his Violet Town property. He had completed a Certificate IV in Thoroughbred Race Horse Training on-line. Dr Baynes thought it likely that the plaintiff had suffered median nerve entrapment and had ongoing symptoms, despite two surgical procedures. He considered the plaintiff to be fit for full-time work where there was no lifting greater than 15 kilograms and particularly where there was no repetitive forceful gripping or jarring with the right hand. The plaintiff should not use his hand for extreme flexion or extension and should avoid continuous gripping. He should be able to rotate jobs throughout the day and not be exposed to continuous vibration forces – for example, from chainsaws. Dr Baynes considered the plaintiff fit for manual labouring roles where there was a variation of tasks, such as production line manufacturing and packing and assembly work. He is also fit for work at gatehouses, as a ticket collector, information officer and the like. Dr Baynes considered the plaintiff fit to undertake welding and to work in a variety of environments, including factories, warehouses and retail establishments.
25 Dr Baynes saw the plaintiff for a second time on 29 August 2017, reporting on that day. He noted that there had been no change in terms of symptoms since the previous review. The plaintiff had not done any further casual work for RPR Trades. He referred to other casual work which he had done. Essentially Dr Baynes’ opinion did not change greatly. He still believed that physical restrictions should be in place, with no lifting greater than 15 kilograms and no repetitive forceful gripping or jarring across the right hand or extreme flexion or extension postures. Work should be rotated. He thought that the plaintiff could work as a visual inspector of cans, this being a specific job identified by Recovre. Similarly, he thought the plaintiff fit to work as a truck driver at the same enterprise, the truck driving involving 10 to 13 short trips per shift. He considered that the plaintiff would have some difficulties as a rubbish truck driver, particularly in terms of continuous grip of a high pressure hose and the removal of rubbish bins.
26 The diagnosis of the plaintiff’s injury is not particularly controversial. Mr Ireland, a specialist in hand surgery examining on behalf of the defendant, has referred to the plaintiff’s condition as being one of residual right hand sensory symptoms following carpal tunnel syndrome treated surgically. This does not differ greatly from the diagnosis of Dr Fahn, who was the plaintiff’s treating general practitioner at the time of and following the second surgical procedure. He described the plaintiff as having residual symptoms of carpal tunnel syndrome, which is another way of describing it. In addition, it does not differ greatly from the diagnosis of Dr Slesenger to the effect that the plaintiff suffers from right hand chronic neuropathic pain. In short, I accept that the plaintiff has residual right hand sensory symptoms, which have continued after two surgical procedures. There is little argument but that they relate to his employment activities with the defendant as described and I note that liability in this regard was accepted in relation to statutory benefits.
27 I also accept the view of Mr Ireland that the relevant activities caused the right carpal tunnel syndrome, rather than aggravating any pre-existing condition. There is no suggestion that the plaintiff suffered from any pre-injury symptoms. Even if the injury does involve the aggravation of a pre-existing condition, I accept that the plaintiff was totally symptom free prior to performing the duties in question.
28 I also accept that the consequences of injury are permanent within the meaning of the Act, in that they will persist for the foreseeable future. Associate Professor Myers has said that the plaintiff has no capacity to perform pre-injury duties and that this will be permanent. He has also described the prognosis as guarded. Dr Slesenger has also referred to the prognosis as being guarded, adding that he does not anticipate a significant alteration in symptoms in the foreseeable future. I accept that the consequences of injury are permanent within the meaning of the Act. The contrary was scarcely argued, if at all.
29 Pursuant to s134AB(38)(h) the consequences of a psychological or psychiatric nature are to be taken into account only for the purposes of paragraph (c) of the definition. It is apparent that, at one stage, the plaintiff became depressed and anxious, being fearful concerning his long-term capacity for work. According to the history taken by Dr Slesenger, the plaintiff took anti-depressant medication for one month, but then ceased. Mr Ireland has stated that there is no evidence of any non-physical component to the plaintiff’s clinical presentation. As required by the Act, any psychiatric or psychological consequences shall not be taken into account, but I am of the view that, if they exist at all, they are minimal. The contrary was not argued. The plaintiff’s presentation in Court was entirely consistent with the finding of Mr Ireland.
The plaintiff’s subsequent employment and other developments since the injury
30 The plaintiff returned to work with the defendant after the injury, this continuing until he was made redundant on 5 July 2014. Essentially, prior to being made redundant, the plaintiff was performing alternative duties. He was doing such things as working in a storage shed and performing some stocktaking duties. According to the history given by him to Dr Slesenger, there was not enough of this work to keep him fully occupied. He started using up his long service leave and sick leave and ultimately was advised in July 2014 that the alternative duties were withdrawn. It seems to have been at about this time that he was made redundant.
31 Since that redundancy, the plaintiff has engaged in various types of casual work. He has done a small amount of part-time work as a casual employee at the Benalla Race Course. He has an interest in thoroughbred horses and has owned some. At the Benalla Race Course, essentially he would sit in a small box-type building and record the details of horses doing track work. He also did some occasional work for a local trainer. I might say that full details of these activities are recorded in his financial statements. He has also obtained a Certificate IV in relation to the training of racehorses, but has not worked as a trainer.
32 In approximately mid-2016, the plaintiff obtained work with an entity called Skilled Program in Western Australia, this relating to flash butt welding at Port Hedland. Initially he was only required to perform approximately two welds per day, with most of his time spent inspecting equipment, ensuring it was operating safely and the like. He had hoped that this would become a position where he could receive the type of earnings which he had been paid by the defendant. However, in late 2016, he was informed that he would need to perform as many as forty flash butt welds per day, something which he knew he could not do. Accordingly, he ceased that work.
33 Since then, the plaintiff has performed various items of casual work. Perhaps the longest of these was at Dimboola, where he did casual labouring work for an entity called RPR Trades Pty Ltd, apparently another labour hire company. The work at Dimboola seems to have lasted approximately seven weeks. As a self-employed person, he attempted to run a fencing business called North East Rural Fencing Farm Services. He also set up a business called Town and Country Rail, but nothing came of that. In 2013 he did a dogman’s course and obtained qualification. This enables him to do some part-time work, essentially for an entity called Quicklift Cranes in Shepparton, where he seems to do approximately two days per week – see T43 and 44. Without dealing with these matters in chronological order, it seems that he briefly did some labour hire work for an entity called Apex Rail in Victoria and similarly worked briefly for ARG sporadically. He did a couple of days’ work for a labour hire agency called Recruitment Select, this involved such things as picking up rubbish at Dookie College and working one day at Mitchelton Winery.
34 I accept that the plaintiff has been forced to borrow some money and has also sold various items of equipment from his property. The sales show up as lump sum items in his bank records. I am quite satisfied that he has done the best that he could in an honest endeavour to explain the occasional work which he has done since being made redundant by the defendant, including work as a self-employed person, and to describe the amount of income received by him from such work. I also accept that the figures in relation to self-employment, such as the fencing work, contain amounts paid for stock and equipment, wages to a couple of people who have assisted him and the like.
Ruling
(a)Pecuniary loss damages
(i)Some general principles
35 I am satisfied that the plaintiff has discharged the burden of proof in relation to pecuniary loss.
36 Whilst various figures can be looked at and juggled, it is to be remembered that, for the purposes of s134AB(38)(e) and (f), what is required is a comparison of earning capacity before the injury and earning capacity after the injury – frequently referred to as a comparison between “without injury” earning capacity and “after injury” earning capacity.
37 That a plaintiff’s earning capacity lies at the heart of the required comparison has long been recognised and was emphasised again in the decision of the Court of Appeal in Richter v Driscoll & Ors [2016] VSCA 142. As was said by Ashley and Kaye JJA in relation to an inability to engage in employment, those words carry with them the idea of return to work as a settled or established member of the wage earning workforce. Further, the physical capacity to perform a particular task does not mean that employment requiring that task thereby becomes suitable employment. Their Honours emphasised that a consideration of suitability of work has never been confined to physical capacity to perform a task required by a particular job. Their Honours also stated as follows:
“‘Employment’ is a relationship in which a prospective employee must have something — a capacity to work in employment — to sell. A prospective employer will not buy if the entirety of the circumstances personal to the worker … lead the employer to conclude that the worker has nothing to sell.”
38 Plainly, their Honours were there directing their observations to a situation of “no current work capacity”, but they seem to me to be equally applicable to a situation of partial incapacity for employment. The injured worker may have something to sell in terms of work capacity, but a prospective employer will not buy if the entirety of the circumstances personal to the worker lead such employer to conclude that what the worker has to sell is not worth a wage which exceeds 60 per cent of the worker’s pre-injury earnings. If that be the case, and if that be applicable to all relevant “suitable” employments described or advanced, the worker will have satisfied the statutory test in relation to loss of earning capacity.
(ii)“Without injury” earnings
39 Turning to the present case, I shall deal firstly with “without injury” earnings. As a flash butt welder at Port Hedland, the plaintiff demonstrated the capacity to earn a sizeable income. In the period prior to the injury, the plaintiff was performing 80 to 100 welds a day, his daily shift being for 12 hours and for 14 consecutive days. I accept that, in the period prior to the injury and when working for the defendant, the plaintiff demonstrated the capacity to earn $3,235.33 per week. I might add that this figure is achieved by dividing what he was paid for a fortnight by three in order to reflect the “two weeks on, one week off” timetable of working. Apparently during the two weeks of working, food and accommodation was provided, although no additional amount has been allowed for that in the calculations set out above. The plaintiff’s tax return for the 2012/13 year indicates a total of $136,608, but this includes some elements of compensation payments. The earlier figure of $3,235.33 quoted above can be seen in the plaintiff’s claim form for statutory benefits (which was accepted). Whilst it was argued this represented a mere “snapshot” based upon one comparatively brief period of employment, the accuracy of the figures set out in the claim form was adopted by the plaintiff in re-examination and the correctness of such figures was not challenged by Mr Miles in his closing address. I would refer to T75-80 and T100. Mr Miles certainly raised arguments as to the use that could be made of these figures, but that they accurately reflect the wages which the plaintiff was receiving at the time of the injury ultimately was not challenged with any force, if at all.
40 In any event, it seems to me that, on an annualised basis, in accordance with s134AB(38)(f)(ii), the figure which most fairly reflects the plaintiff’s “without injury” earnings is $168,237. I should add that there was no evidence or suggestion that the plaintiff’s rate of earning was linked to his output – that is, to the number of welds performed per day or anything of that nature.
(c)“After injury” earnings
41 I say at the outset that, given my ruling in relation to “without injury” earnings, the income from all three occupations suggested as being suitable in the Recovre report falls a long way short of the figure which represents 60 per cent of “without injury” earnings. Each would thus be productive of a financial loss of 40 per centum or more for the purposes of s134AB(38)(e)(ii). The “60% figure” is $100,942. The gross annual incomes relevant to those three “suitable” positions are $56,810 for the can inspector’s occupation; $50,092 for the short distance truck driver; and $65,000 for the rubbish truck driver.
42 Various other positions were referred to in the report of Dr Baynes of 29 March 2017. However, these were brief generic descriptions and had with them no details as to wages. The bottom line is that the employment alternatives suggested by Dr Baynes and by Recovre can be ignored for the purposes of this exercise.
43 That leaves the occupations in which the plaintiff has in fact engaged, whether it be as an employee or as a self-employed person. Some of these patently fall a long way short of the “60% figure”. For example, the plaintiff’s occasional work for Racing Victoria Ltd in the financial year 2015/16 produced a total income of $6,178. This would appear to have been paid over a period of approximately three months. There are also occasional payments from Racing New South Wales totalling a little over $1,000 over a six month period. Overall, I accept the calculations set out by Mr Ingram and Ms Moore in their closing submissions. These figures cover the three financial years prior to 30 June 2017. The highest figure from personal exertion for any one year is $76,241 for the year ending 30 June 2017. That still falls considerably short of what could be described as the “60% figure”.
44 However, Mr Miles advanced a submission which could be described as “the snapshot argument”. I shall now deal with that.
(d)The “snapshot” argument
45 The submission of Mr Miles necessitates an examination of the plaintiff’s earnings during a couple of specified periods during the years since sustaining the injury. The argument of Mr Miles is essentially that these briefer periods or “snapshots” demonstrate a capacity on the part of the plaintiff to earn income which, when annualised, exceeds 60 per cent of his gross income from personal exertion had the injury not occurred. He argued that the plaintiff, for the purposes of “without injury” earnings, was essentially relying on a “snapshot” of earnings with the defendant which occurred in a comparatively brief period prior to the occurrence of the injury. The “snapshot” of “without injury” earnings should be compared with the “snapshot” of “after injury” earnings. I would refer to T99 – 101.
46 However, there seem to me to be limits as to how far the “snapshot” approach can be taken, however attractive it may appear at first instance. In relation to “without injury” earnings, let us take the example of a highly qualified person who is commencing his first employment on a gross annual salary of $100,000. That person is injured on the first day of such employment. Even if this be a one day “snapshot”, it seems to me that such person would have demonstrated that he or she possessed the capacity to earn $100,000 per annum. Let us then assume that, after a period of convalescence, that person resumes employment at the same gross annual salary. After, say, a month, the person is forced, by reason of the injury, to cease that employment and take up work at a gross annual salary of $50,000. The “snapshot” taken during those weeks following resumption of work would again reveal a capacity to earn $100,000 and the percentage loss would be zero. The application of a such a person would fail.
47 However, the question then has to be asked as to whether this approach most fairly reflects the worker’s earning capacity had the injury not occurred. It is hard to argue with the proposition that, even if the pre-injury duration of work was one day, the worker’s “without injury” capacity is $100,000 per annum. However, when the “after injury” earnings are considered, the “snapshot” approach would be productive of an unfair result. The worker may have briefly earned a figure which extinguished any loss, but that did not turn out to be the true situation. The “snapshot” argument produces an unfair result, essentially because, after an attempt, such worker has not been able to maintain that rate of income. The amount which most fairly reflects the worker’s earning capacity had the injury not occurred has decreased substantially. Thus, the “snapshot” approach has not produced a fair and proper result.
48 Further, prior to the injury this plaintiff was a person who worked particularly hard and for long hours. I regard him as being highly motivated. His financial position is now a worrying one. He has continued to work to the best of his ability and utmost of his capacity. In his situation, the “snapshot” approach does not produce a fair and proper result.
(e)The situation in the present case
49 In this case, I accept that the earning capacity demonstrated by the plaintiff was $168,237 gross per annum. As stated, 60 per cent of this is $100,942. The former figure is the gross amount which he was to be paid for his labour and which he had the capacity to earn. After the injury, he performed restricted duties and not on-site in Western Australia. It is not suggested that the alternative duties which he performed for the defendant were productive of an income which would equal or exceed the 60 per cent figure. The high figures achievable by way of a “fly-in, fly-out” employment in Western Australia were no longer available.
50 The plaintiff seems to have been made redundant by the defendant in July 2014. Thereafter, as described, he has had various employments, as well as performing some work on a self-employed basis. There were a few employments which received particular attention from the defendant. One of these was through an employment agency named Catalyst Recruitment. It would appear that the plaintiff worked in Western Australia performing work obtained for him by Catalyst Recruitment between 1 May 2016 and 20 August 2016. It is asserted by the defendant, and would not seem to be disputed, that during that time the plaintiff worked for some 720 hours, earning $43,218. Thus, his gross weekly earnings during that period were $3,601.50, a figure which, if annualised, would take him well and truly beyond the 60 per cent cut-off figure. However, it would appear that, when performing the work organised by Catalyst Recruitment in Western Australia, it was foreshadowed that the demands upon the plaintiff in respect of the number of welds done per day would increase dramatically. This coincided with a decrease in the number of people available to do the work. The end result was that the plaintiff stopped work, because he could not do it – see T50. The bottom line is that the earnings of the plaintiff when employed by Catalyst Recruitment would have well and truly exceeded 60 per cent of his “without injury” earnings. However, in this employment greater demands were made upon the plaintiff, causing him to cease work as he could not meet them. In other words, those demands made upon him ultimately put the work provided by Catalyst Recruitment beyond his capacity.
51 During the financial year ending 30 June 2017, the plaintiff worked for an entity called Apex Rail Pty Ltd. This was another labour hire company specifically directing employees to railway work, such as work associated with rail track removal or renewal. Quite a lot of overtime seems to have been associated with this work and performed by the plaintiff. However, the plaintiff said that it wore him out “pretty easy” – see T54. Again, the gross earnings in individual weeks, if multiplied for a full financial year, would produce the result of the plaintiff earning a figure that would comfortably exceed the 60 per cent cut-off mark. However, the work appears to have been comparatively irregular and only engaged in by him for four or five weeks in the 2016/17 financial year. As stated, the plaintiff gave evidence that it wore him out. This is consistent with his later evidence that he definitely cannot perform more work than that which he has done – see T87 and T90.
52 Similarly, the plaintiff has done a limited amount of work for an entity called ARG Labour Services Pty Ltd. That organisation also engages in labour hire for general labouring duties, including rail work. The plaintiff appears originally to have worked for that company between 24 October 2016 and 30 October 2016, and 26 December 2016 to 8 January 2017, a total of three weeks. Again, the plaintiff’s earnings during that three week period would lift him comfortably above the 60 per cent threshold. The observations made in relation to Apex Rail Pty Ltd also apply to that three weeks of work with ARG Labour Services Pty Ltd. It would appear that the plaintiff has more recently performed one week of work for ARG Labour Services Pty Ltd and was still feeling the effects of it. The plaintiff gave evidence that he had still not recovered from this work with ARG Labour Services Pty Ltd “… and that was weeks and weeks and weeks ago” ‒ see T90. In general terms, the plaintiff gave evidence that, if he puts in a hard week and gets good money, it is difficult to recover – see T65.
53 The other work which the plaintiff performed during the 2016/17 financial year was for RPR Trades, also a labour hire company. The work performed by the plaintiff for RPR Trades was the Dimboola job to which reference has been made and which ran from 31 January 2017 to 26 March 2017, with there being an additional three days’ work between 18 May 2017 and 21 May 2017. The plaintiff stated that, when driving to Dimboola, he could stop when he wanted to or drive one-handed, something that he could not do when driving a truck. The plaintiff also described the Dimboola job as being “the only consistent bit of work I had for quite some time …” ‒ see T38. The plaintiff described the Dimboola work as being a casual job which he had managed to pick up and which involved “a little bit of labouring work” ‒ see T28. It would appear that, when working in Dimboola, the plaintiff paid for his own accommodation and meals, unlike the situation in Western Australia. However, at least some of the plaintiff’s pay slips would indicate that his income in Dimboola, even after deducting overheads, would exceed the 60 per cent threshold. In relation to work such as that, the plaintiff said that he tries to “find an easy way out without getting caught” ‒ see T90. In my opinion, the same considerations apply to the work in Dimboola as to the other labour hire work. The plaintiff is capable of performing the work in short bursts and is then working to his maximum capacity.
54 I am also satisfied that the amount which the plaintiff actually earned from conducting his fencing business and after deducting overheads, when annualised falls a long way short of the 60 per cent threshold. In more recent times, he has been doing occasional work as a dogman for Quicklift Cranes in Shepparton. This would be for one or two days a week, apparently from time to time. Generally, his income seems to have been in decline. Essentially, he has survived by selling off equipment and borrowing. He obtained a substantial loan from his mother. In short, I find that the adverse effect of the periodic, highly paid post-injury “snapshot jobs” upon the plaintiff’s hand and wrist serve to demonstrate that, although he could perform such jobs for a short time, they do not represent “suitable employment” within the meaning of the definition. When regard is had to the nature of his incapacity and the effect of those more highly paid positions upon it, the definition contained in s5 of the Act is not satisfied. As stated previously, I accept the evidence of the plaintiff in this regard.
55 The bottom line is that I am satisfied that, since suffering the injury, the plaintiff has been working to his maximum capacity and that his “after injury” gross earnings, when annualised, fall well short of the 60 per cent threshold. I accept the submissions and calculations of counsel for the plaintiff in this regard. Further, for the purposes of s134AB(38)(c), given the plaintiff’s age and the quantum of his annual loss, I am quite satisfied that this loss of earning capacity consequence is, after the relevant comparison has been made, fairly described as being more than significant or marked, and as being at least very considerable.
56 Accordingly, I find that the plaintiff has discharged the burden of proof in relation to loss of earning capacity.
Pain and suffering
57 Given that the plaintiff has discharged the burden of proof in relation to pecuniary loss damages, the requirements of the Act have also been satisfied in relation to pain and suffering damages ‒ see the decision of the Court of Appeal in Abdulle as referred to earlier and various decisions of this Court. Essentially, the case was conducted from the outset on the basis that, if the plaintiff succeeded in relation to economic loss, he would also succeed in relation to pain and suffering. That seems to me to be the correct approach and one in accordance with the authorities.
Conclusion
58 The plaintiff is successful. He has discharged the burden of proof. Leave is given to him to bring proceedings in respect of both pecuniary loss damages and pain and suffering damages.
59 I shall hear the parties as to any ancillary orders that are required.
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