Singh v Quality Food World P/L
[2018] VCC 582
•3 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-04241
| HARPREET SINGH | Plaintiff |
| v | |
| QUALITY FOOD WORLD PTY LTD | Defendant |
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JUDGE: | DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9 & 12 February 2018 | |
DATE OF JUDGMENT: | 3 May 2018 | |
CASE MAY BE CITED AS: | Singh v Quality Food World P/L | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 582 | |
REASONS FOR JUDGMENT
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Subject: Accident Compensation
Catchwords: Serious injury; amputated finger; suitable employment
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Papamanos
v Commonwealth Bank of Australia [2014] VSCA 167
Judgment: Leave granted for pecuniary loss and pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R.H. Stanley with Ms K. Manning | Advice Line Lawyers |
| For the Defendant | Ms B. Myers | Russell Kennedy, Lawyers |
HIS HONOUR:
1 Harpreet Singh commenced employment for Quality Food World Pty Ltd (“the employer”) in December 2009 as a kitchen supervisor. He was the 25 years of age and had migrated to Australia from India a few months before.
2 He continued working in that role up until suffering injury on 3 April 2014 when his right index finger was amputated whilst he was cleaning a machine.
3 Mr Singh had surgical treatment and was certified fit to return to employment in mid-May 2014. Unfortunately his employer was unable to offer any work and he subsequently moved to Queensland where his wife had found work in January 2015. Following an unsuccessful attempt to work in fruit picking, he eventually obtained employment as a pizza delivery driver in early 2016. He remains in this employment working on a casual basis.
4 The plaintiff continues to suffer ongoing difficulties with his dominant right hand, and now seeks leave to claim damages in accordance with the provisions of section 134AB of the Accident Compensation Act 1985 (“the Act”) on the basis that he has suffered a serious injury.
5 Leave is sought in respect of both pecuniary loss and pain and suffering damages. Mr Singh relies upon paragraph (a) of the definition of serious injury as set out in section 134AB(37) of the Act. The right hand is the body function relied upon.
6 Whilst the defendant focused principally on the issue of pecuniary loss, there was no concession made concerning Mr Singh’s entitlement to claim damages for pain and suffering.
7 Ms Myers, who appeared on behalf of the defendant, required only the plaintiff for cross-examination. The evidence was otherwise contained in various affidavits, medical reports and other documentation contained in the parties court books.
The evidence
8 Mr Singh had affirmed affidavits in support of his application dated 8 May 2017 and 7 February 2018.[1] His wife Amam Preet had affirmed an affidavit in support of the plaintiff on 8 February 2018.[2] Ms Preet was not required for cross‑examination.
[1]Exhibit A, p20-29C
[2]Exhibit A, p29D & E
9 From the plaintiff’s initial affidavit I noted the following matters as relevant:
· He is currently 33 years of age, was born in India and educated for 12 years. He worked as a farm labourer before migrating to Australia in 2009.
· He had married in 2008 and came to Australia with his wife in June 2009. They had a daughter in October 2011. His wife is currently employed full‑time as a baker.
· He described the work with the employer commencing in December 2009. The work involved a considerable amount of overtime and was basically manual in nature.
· He sustained the injury involving the amputation of his right index finger on 3 April 2014 and was treated at the Dandenong Hospital and later by a plastic surgeon.
· He lodged a claim for WorkCover on 14 April 2014. This claim was accepted on behalf of the employer.
· He was certified by his general practitioner as fit to return to his normal duties and hours on 12 May 2014. The employer could not offer him any duties at that time.
· In January 2015 he moved with his family to Brisbane as his wife had found work there.
· He was unable to find any employment in the food industry as:
“… I have great difficulty holding a knife in my right hand due to the absence of the majority of my right index finger and a loss of dexterity.”[3]
· In June 2015 Mr Singh obtained work picking strawberries, but could not continue after three months due to difficulty gripping and picking up items with his right hand.
· In early 2016 through the assistance of a friend he found a job as a pizza delivery driver, which he does for approximately five hours each evening, five days per week. He uses his own car and is paid per delivery. He has some difficulty with large orders due to his lack of grip strength. There are other difficulties which are not related to his injury.
[3]Exhibit A, p23[18]
10 Mr Singh’s affidavit set out a number of matters relevant to the pain and suffering consequences generally involving the loss of manual dexterity and strength in his dominant right hand. In the affidavit he made reference to emotional issues and self-consciousness over the deformity caused by his injury in addition to the other matters relating to the pain and suffering experienced by him.
11 Mr Singh also deposed as to the economic loss consequences stating that the majority of his working life had been in positions that required physical tasks and hand movements. Reference was also made to his limited education and lack of skills coupled with his limitations in the English language. He deposed to earning approximately $58,000 gross per annum prior to suffering his injury and stated:
“… had I not suffered the injury to my right index finger I would have continued to work as a kitchen supervisor and earn a similar if not higher wage.”[4]
[4]Exhibit A, p27[36]
12 In the second affidavit, sworn shortly prior to the hearing, Mr Singh reaffirmed his earlier affidavit material concerning both pecuniary loss and pain and suffering consequences of his injury.
13 He described in considerable detail the various activities which caused what he had described as “excruciating pain, reduced grip strength and dexterity” in his right hand.[5]
[5]Exhibit A, p29A&B[2] & [3]
14 He then made reference to his present job as a delivery driver for Pizza Hut. He stated:
“It is by no means rewarding work and definitely not a job I would have chosen, but after an extensive and demoralising search it was the only job I could get. I have a young family and need to work.”[6]
[6]Exhibit A, p29B[4]
15 He went on to describe the usual hours of work and the method of payment which was based on his number of deliveries. He stated:
“I receive a gross sum from Pizza Hut each fortnight paid into my bank account. On average it works out at approximately $500.00 per week, but as I said, I need to deduct my expenses from this. It is hard for me to identify my work expenses accurately, as the car is also my family vehicle, but it would have to be at least $100.00 per week.”[7]
[7]Exhibit A, p29B[7]
16 Mr Singh went on to comment on a recent vocational assessment maintaining that he could work as a courier driver, forklift driver or picker and packer. In relation to those he stated:
“I simply do not believe that I could manage those roles on a full time capacity. I also doubt that many of those roles are available in the Sunshine Coast area. In addition, my difficulty with the English language would disadvantage me.”[8]
[8]Exhibit A, p29C[8] & [9]
17 Mr Singh was cross-examined through an interpreter. I noted the following matters as relevant to my determination:
· He had learnt a little English over two years studying at a village school in India.[9]
[9]Transcript (“T”) 26, Line (“L”) 25-30
· He attended the village school until the age of 21 or 22, completing the 12th grade.[10]
[10]T 27, L 18-31
· He did not attend school full-time because after his father died he had to help his younger brother with the farming.[11]
[11]T 28, L 21-28
· He did not do a migrant English course in Australia, but he used a computer to read a little bit. He agreed that he could read a little bit of the newspaper in English.
· He obtained work with the employer through friends who worked in that factory. His first job was packing and then he was put into the kitchen.[12]
[12]T 31, L 6-29
· After a further one and a half or two years he was made a supervisor approximately one year before his injury.
“The difference was as a kitchen hand I did all the work myself. But as a supervisor, I had to supervise other people and say they were slow at performing some tasks. Checking their jobs, and also that they were doing it properly.”[13]
[13]T 32, L 26-30
· In 2014 Mr Singh was being paid $26 an hour. Three people reported to him as their supervisor.[14]
[14]T 33, L 4-7
· Mr Singh’s wife had done further study doing a course in bakery management. Their daughter was now six years of age and had started school close to their home.[15]
[15]T 33, L 20-31
· He obtained an ABN in 2013 and was hoping to start a business with his wife as she was qualified as a baker and a chef.[16]
[16]T 34, L 4-29
· At the time when Mr Singh suffered his injury his wife had already commenced working in Brisbane and their daughter was being cared for by a relative in India.[17]
[17]T 35, L 22 to T 36, L 2
· Mr Singh was certified fit for normal duties as from 31 May 2014.
“I went to the factory but there was no more job.”[18]
[18]T 37, L 1-5
· Mr Singh had tried to get work and produced documents relating to his job hunting, but stated:
“Wherever my friends thought there was a job going and I would go there to cut vegetables and things and I couldn’t do it properly, nobody called me back to say yes, there’s a job waiting for you.”[19]
[19]T 38, L 16-29
· When Mr Singh inspected documents he stated:
“Many I have phoned and many my friends would tell me about, and I would go in-person myself.”[20]
[20]T 39, L 20-29
to explain why he did not have documents for all the jobs he had applied for.
· Following the accident Mr Singh had moved to Queensland to join his wife after about five months. He had also made two trips to India, one to pick up his daughter and one by himself.[21]
[21]T 40, L 9-29
· Mr Singh’s wife was starting at 3.00 or 4.00 in the morning and he was caring for his daughter when his wife was working or sleeping. He agreed that he was the primary carer for his daughter.[22]
[22]T 42, L 1-9
· He had tried farming work but he was told he was too slow.[23]
[23]T 42, L 22-29
· He started working at Pizza Hut doing deliveries, he believed, in August 2016.[24]
[24]T 44, L 25-29
· The work doing pizza deliveries was normally from 5.00 to 10.00 in the evening, and sometimes he would make a quick delivery outside those hours. He would normally work five days a week and there was another delivery driver who worked on the other two evenings.[25]
[25]T 45, L 16-29
· In a normal shift he would do usually between 10 and 13 deliveries. Apart from his normal five days, he would work on another day perhaps once every couple of weeks.[26]
[26]T 47, L 8-23
· The documents produced by Mr Singh showed that he had registered with a labour hire company and had placed an ad on Gumtree apart from his own personal attempts to look for work.[27]
[27]T 48, L 16-29
· He would be paid on the basis of the number of deliveries confirmed by text message with Pizza Hut.[28]
[28]T 50, L 2 to T 51, L 16
· He agreed he continued to do more of the household chores because his wife worked long hours. This included assisting his daughter getting ready for school.[29]
[29]T 53, L 9-15
· He agreed he had seen Dr Baynes in December 2017, but had not been provided with a vocational assessment identifying particular jobs.[30]
[30]T 53, L 17 to T 54, L 10
· He later agreed he may have spoken to his solicitors about the vocational assessment, but maintained he could not work.
· Mr Singh maintained he could not do a job as a forklift driver and had experience of doing it previously whilst working in the defendant’s factor. His forklift licence had now expired.[31]
[31]T 56, L 2-11
· He later agreed that he did drive a car in his present employment and could drive an automatic car. He maintained driving a forklift would be “with great difficulty. Cannot drive one like I used to before.”[32]
[32]T 61, L 16-22
· In relation to a suggested job as a picker/packer he maintained he could not do this job as it involved cutting with a knife and packing items into bowls.[33]
[33]T 63, L 8-30
· Mr Singh maintained that picking objects would cause difficulty:
“When you pick small things and you have to pack them into a bigger thing, and then you have to lift that pallet – and that is the difficult part … The problem will come when I start using this hand.”[34]
[34]T 63, L 31 to T 64, L 7
· Mr Singh described the pain in his hand stating that if he hit something or it was touched inappropriately then it hurt, but he would not get much pain:
“It’s when I am working slowly and I’m cautious about it, then there is no pain, but when I have to work fast in a job, then I touch it and then it causes me pain.”[35]
[35]T 64, L 12-27
· Mr Singh demonstrated the way he would hold a pizza delivery bag going about his deliveries and also described holding a mobile telephone in his left hand and in his right hand “slowly sometimes I do.”[36]
[36]T 65, L 17 to T 66, L 5
· Mr Singh indicated that he would lift pizza boxes with his left hand and carry the bag containing the pizza boxes with his right hand “very little.”[37]
[37]T 67, L 18-26
· When again asked concerning work as a picker or packer, Mr Singh stated he would have difficulty making up cardboard boxes and further stated he would have difficulty using a machine to apply tape to boxes.[38]
· He believed he could not do a courier’s job as it involved lifting boxes weighing 10 to 20 kilos:
“A courier’s job a very difficult and I cannot undertake it … If my finger touches, then I have a lot of problems.”[39]
· Mr Singh agreed with the proposition put to him:
“So if the court was with you on a day to day basis we would see you pretty much doing everything with your left hand.”[40]
[38]T 68, L 14-27
[39]T 69, L 5-17
[40]T 71, L 30 to T 72, L 1
18 A surveillance DVD recording events of 8 August 2017 was then showed to the plaintiff. Mr Singh agreed that the video showed him doing certain activities involving holding hands with his daughter whilst walking her to school, lifting the bonnet of his car and using his right hand to affix the bonnet support and using the right hand to operate the car keys. He was then further cross‑examined and the following evidence emerged:
“Is that about how you go about your normal day-to-day activity?---You can see that I use mainly my left hand.
Yes, I’m not disputing that. I’m just asking you, do you agree that what we saw in the video would be fairly typical use of both your hands on a normal day?---Yeah, as you could see, most of the time my hand was in my pocket.
Yes, all right.”[41]
[41]T 74, L 14-21
19 A further surveillance DVD recording events of 13 and 14 December 2017 was then played to the plaintiff. He was again asked questions, particularly concerning the use of both hands on occasions to carry pizza box containers. The surveillance DVD also showed Mr Singh collecting some stock from another Pizza Hut, which he described as not heavy.
20 Finally, a surveillance DVD showing the events of 31 January and 1 February 2018 was shown to the plaintiff. He agreed that the video showed him using his right hand to close the garage door and using both hands interchangeably whilst putting adhesive tape on the headlights of his car. The surveillance DVDs were tendered in evidence.[42]
[42]Exhibit 1
21 Mr Singh was briefly re-examined and asked to comment on the method used for carrying pizza sleeves. He was also asked to describe the circumstances immediately prior to his injury when his wife was working in Brisbane, he was working in Melbourne and his daughter was in India. He explained that his mother had come to Australia for six months and then taken his daughter to India so that both he and his wife could work.[43]
[43]T 79, L 1-6
22 He also reaffirmed his earlier evidence about applying in person for a variety of jobs at various farms and Indian restaurants in particular.[44]
[44]T 79, L 11-17
23 The affidavit affirmed by the plaintiff’s wife, Amam Preet, on 8 February 2018 essentially deposed to Mr Singh complaining of pain and discomfort in the stump of his right index finger and observing him struggling to complete a number of tasks at home. It also commented on his changed mood and his apparent self-consciousness about his injury. Ms Preet was not cross‑examined.
The medical evidence
24 The plaintiff relied on a medical report from the treating plastic surgeon, Associate Professor James Leong, dated 13 September 2017,[45] together with medico-legal opinions from Dr David Middleton, occupational physician, dated 5 February 2018,[46] and Professor Felix Behan, plastic surgeon, dated 4 December 2017.[47] Additionally the plaintiff tendered an impairment assessment from Dr Peter Jackson dated 30 November 2016.[48]
[45]Exhibit A, p52
[46]Exhibit A, 29.1-29.12
[47]Exhibit A, p30-51
[48]Exhibit A, p53-63
25 The only medical material relied upon by the defendant was a report from Dr Michael Baynes, occupational physician, dated 20 December 2017.[49] Ms Myers also tendered a vocational assessment dated 9 January 2018[50] and a wage report dated 5 February 2018.[51] Ms Myers tendered extracts from Mr Leong’s clinical records which essentially described the initial treatment and noted the plaintiff’s relocation to Brisbane in early 2015.[52] She also tendered into evidence PAYG summaries for the 2013 and 2014 financial years,[53] and finally an extract dated 18 August 2017 recording an Australian business number in the plaintiff’s name dating from 7 February 2013, prior to the injury being sustained.[54]
[49]Exhibit 2, p16-21
[50]Exhibit 2, p22-54
[51]Exhibit 2, p55-59
[52]Exhibit 2, p64-67
[53]Exhibit 1, p60-62
[54]Exhibit 2, p63
26 The injury suffered by the plaintiff was an amputation of the right index finger through the proximal phalanx. Associate Professor Leong then performed a debridement osteotomy of the remnant bone fragments with the use of a flap to close the tip of the amputation stump. Associate Professor Leong noted Mr Singh’s complaints of ongoing pain in June 2014. The medical evidence supports a finding of some degree of post traumatic neuropathic pain in the stump of the right index finger.[55]
[55]See Dr Jackson (Exhibit A, p55) and Professor Behan (Exhibit A, p39)
27 So far as his occupational limitations are concerned, Dr Michael Baynes concluded that Mr Singh was fit for modified duties:
“… where there is no requirement of repetitive forceful gripping and where there is no exposure to extremes of temperature with the hand. He is fit for work where there is not a need for fine pincer type gripping. He is fit for full time hours.”[56]
[56]Exhibit 2, p21
28 The opinion of Dr Middleton is somewhat less optimistic as to Mr Singh’s prospects commenting on Dr Baynes’ opinion critically stating:
“… there is a lack of quantification of repetitiveness, forcefulness and how working with his right hand, Mr Singh is able to not knock his right index stump. In my opinion, the assessors have made no allowances for the impact of his injury.”[57]
[57]Exhibit A, p29.8
29 Dr Middleton was also critical of the absence in Dr Baynes’ of any quantative assessment of Mr Singh’s grip strength and pincer strength.
30 In summary the medical evidence satisfies me that the traumatic amputation and subsequent surgical repair of Mr Singh’s index finger have left him with a painful stump which does impact on his ability to use his dominant right hand, particularly in terms of strength and sensation. The extent of that limitation needs to be assessed on the whole of the evidence, including the evidence concerning the plaintiff’s post-injury employment record and the relatively recent surveillance material.
The vocational material
31 The plaintiff relied upon a brief report from Ms Mandy Morgan of Flexi Personnel dated 5 February 2018.[58] Ms Morgan provided an opinion as to the current earnings for a person employed in Mr Singh’s current occupation and also for the four occupations referred to in the Recovre Vocational Assessment Report dated 9 January 2018. This report, together with a Recovre Wage Report dated 5 February 2018 was relied upon by the defendant and tendered into evidence.[59]
[58]Exhibit A, p71-73
[59]Exhibit 2, p22-59
32 The earnings figures set out in Ms Morgan’s report were generally in the order of $20 per hour. The report was otherwise of little relevance in the present application.
33 The wage report provided by Ms Willett, an employment placement consultant from Recovre, dated 5 February 2018[60] set out an extract from the website joboutlook.gov.au which was stated to indicate:
“… the average gross weekly wage for a delivery driver to be $881. Pizza delivery drivers are not specifically recorded.”
[60]Exhibit 2, p55-59
34 The report also set out wages from the Fast Food Industry Award 2010, apparently extracted from the website fairwork.gov.au and effective from 1 January 2018. This extracted material spanned three pages showing hourly rates of pay varying from $20.08 for a Level 1 adult full or part-time employee and an hourly rate for a casual employee of $25.10. There was no further evidence as to the applicability of either of these figures to the actual work being performed by the plaintiff at present. Indeed the evidence produced in the trial showed that the plaintiff is paid on the basis of each pizza delivery rather than on an hourly basis. The question of his post-injury earning capacity principally depends on a finding by the court that a particular category of employment is suitable to this particular plaintiff.
35 Ms Willett had also provided a most detailed vocational assessment report in conjunction with Janette Ash, an occupational therapist.[61] This report was dated 9 January 2018 and the evidence disclosed that it had been prepared without Ms Willett or Ms Ash having an opportunity to interview the plaintiff.
[61]Exhibit 2, p22-54
36 The report identified positions as courier, forklift driver, picker and packer as those potentially suitable for the plaintiff. These various roles were the subject of a considerable amount of the cross-examination of Mr Singh. Their suitability will be considered in the following assessment.
Assessment
37 I accept that Mr Singh attempted to give his evidence in a truthful manner, although some aspects of the material both contained in his recent affidavit and his evidence before me, lacked reliability possibly due to language difficulties. Overall he impressed me as a witness who attempted to be truthful and not to overly exaggerate his disability.
38 Further, his attempts to return to employment both with the employer, and subsequently to relocate outside Victoria attempting work that was plainly unsuitable for him, is indicative of a strong work ethic and a desire to maximise his employment opportunities. Clearly obtaining work picking strawberries with a compromised dominant hand is not the action that could be expected of a work-shy individual.
39 I have viewed the surveillance DVDs, both during the trial before me and subsequently following their tender into evidence. Overall I am able to conclude that the plaintiff tends to favour his non-dominant left hand, although there is some use of the right hand which I do not regard as inconsistent with the overall medical assessment of the level of his injury and consequential impairment.
40 I am assisted in particular in the present case by the opinion of Professor Felix Behan concluding that Mr Singh has a disability from an industrial loss point of view that he would assess at 20 per cent.[62]
[62]Exhibit A, p38
41 I observed the plaintiff’s hand during the course of the application before me. The digital photographs set out in Professor Behan’s report[63] are confirmatory of my own observation that Mr Singh has been left with a bulbous painful and hypersensitive but otherwise useless stump on his dominant right hand which greatly restricts him in terms of employment and his activities of daily life.
[63]Exhibit a, p45-51
42 Notwithstanding the extensive submissions of Ms Myers on behalf of the defendant, which were highly critical of the plaintiff’s reliability, I do not accept the evidentiary matters relied upon by Ms Myers impugning the plaintiff’s credit.
43 Ms Myers did refer me to authorities in Ifka v Shahin Enterprises Pty Ltd[64] and Papamanos v Commonwealth Bank of Australia[65] which I accept are binding upon me. I simply do not accept that the evidence here leads me to a conclusion that Mr Singh is to be regarded as unreliable.
[64][2014] VSCA 8 at [40] to [47]
[65][2014] VSCA 167 at [33]
44 I do accept the submission made by Ms Myers as to the statutory obligations falling to the plaintiff in terms of rehabilitation and/or retraining. She submitted that the statutory obligation cannot be avoided merely by criticising the lack of retraining or vocational assistance forthcoming from the employer or its insurer. Notwithstanding such criticism it is unclear here precisely what rehabilitation or retraining would be necessary, and to what extent any such retraining, other than perhaps competency in the English language or an ability to perform non‑physical work, would enhance Mr Singh’s employability.
45 The defendant was critical of the plaintiff’s absence of formal job applications in the present case. There was also reference made in submissions to the fact that the plaintiff had obtained an Australian business number in February 2013 with the intention of possibly operating a business with his wife. The plaintiff’s unchallenged work history is that of a farm labourer prior to coming to Australia and thereafter working in labouring work with the employer before obtaining his role described as a “kitchen supervisor” at the time of injury.
46 His post‑injury employment has involved strawberry picking and more recently work as a pizza delivery driver. I am satisfied that the work he had performed picking strawberries was clearly unsuitable for him. Indeed it may be that the current work in which he engages would also fail the test of suitable employment as described in section 5(1)(b) of the Act.
47 I am also unsatisfied that the four occupations described in the Recovre vocational assessment, being courier, forklift driver, picker and packer, satisfy the statutory requirement of being suitable for the plaintiff.
48 Notwithstanding the extensive cross-examination by Ms Myers, it was apparent to me that each of the suggested vocational options for Mr Singh required considerable use of his dominant and industrially limited right hand.
49 The opinion of the impairment medical specialist, Dr Peter Jackson, who was engaged on behalf of the defendant commented as follows:
“The injured worker was aged 33, uneducated and could not speak English and thus could only perform manual work mainly in farming. Currently this is not possible and more or less would have the same effect on his ability to work as that of a classical pianist who had lost his right index finger.”[66]
[66]Exhibit A, p57
50 In spite of Dr Jackson’s opinion the plaintiff has obtained employment in his current capacity, although I am not satisfied that his current role is suitable employment as defined in section 5(1)(b) of the Act.
51 Even if I am wrong in my classification of his present employment, I am satisfied that he is exercising whatever capacity remains to him to the best of his ability and this is likely to remain the situation into the foreseeable future.
52 I have noted the comments, particularly from Professor Behan, as to the possibility of revisional surgery. The fact is the plaintiff is now some four years post-injury and no medical practitioner has expressed any strong view that this surgery, if undertaken, would provide any dramatic improvement in the plaintiff’s capacity.
53 Given that some four years has now passed since the date of injury, and there is no suggestion in the medical evidence that the plaintiff’s condition is likely to improve in the foreseeable future, I am satisfied that the consequences suffered by the plaintiff can be assessed on the basis that they are now permanent.
54 In order for leave to be granted in respect of pecuniary loss damages the legislative framework requires the plaintiff to satisfy the court that he has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between his without injury earning capacity and his after injury earning capacity assessed in accordance with the provisions of sections 134AB(e) and (f).
55 The parties were in agreement that the plaintiff’s gross annual earnings in the financial year immediately preceding the date of his injury (30 June 2013) were $55,296. His gross annual earnings in the financial year ended 30 June 2014 were $62,250, noting that he had suffered his injury in April of that year and there is no evidence to satisfy me that the total gross annual earnings are correctly described as income from personal exertion.
56 Mr Singh deposed in his first affidavit to having a capacity to earn approximately $58,000 gross per annum stating:
“I believe that had I not suffered the injury to my right index finger I would have continued to work as a kitchen supervisor and earn a similar if not higher wage.”[67]
[67]Exhibit A, p27[36]
57 Ultimately the parties agreed that a figure of $1,058 gross per week (annualised at $55,000) would fairly represent the plaintiff’s without injury earnings. Sixty per cent of that figure was $635 per week (annualised at $33,000).
58 I am satisfied that Mr Singh’s current capacity is accurately reflected in his 2017 income tax assessment which shows taxable income of $22,602 ($435 per week).[68]
[68]Exhibit A, p78-81
59 He therefore satisfies the statutory threshold set out in section 134AB(e) to enable leave to be granted.
Conclusion
60 I am satisfied the plaintiff has made out his application for leave in respect of pecuniary loss damages. There is no need to separately consider the application in respect of pain and suffering.
61 I propose to grant the application and I will hear the parties on the question of the formal orders sought and the question of costs.
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