Spiteri v Victorian WorkCover Authority
[2016] VCC 912
•4 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-02978
| MATTHEW LEE SPITERI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 10 and 14 June 2016 | |
DATE OF JUDGMENT: | 4 July 2016 | |
CASE MAY BE CITED AS: | Spiteri v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 912 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – claim for loss of earning capacity – significance of non-disclosure of relevant work history – creditworthiness and reliability of the plaintiff – plaintiff under 26 years of age – method of calculating loss of earning capacity
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Malec v Hutton (1990) 169 CLR 638; Mallett v McMonagle [1970] AC 166; Davies v Taylor [1974] AC 207; McIntosh v Williams [1979] 2 NSWLR 543; State of New South Wales v Moss [2000] NSWCA 133; Graham v Baker (1961) 106 CLR 340; Paff v Speed (1961) 105 CLR 549; Bowen v Blair [1933] VLR 398; Wheeler v Riverside Coal Transport Co Pty Ltd [1964] Qd R 113; Talbot v General Television Corporation Pty Ltd [1980] VR 224; Fink v Fink (1946) 74 CLR 127; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332; Naylor v Yorkshire Electricity Board [1968] AC 529; Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422; Nilon v Bezzina [1988] 2 Qd R 420; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: The plaintiff is granted leave to recover damages at common law for both pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr M Cvjeticanin | Maurice Blackburn Lawyers |
| For the Defendant | Ms J M Forbes with Ms M Tait | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff is a twenty-seven-year-old married man. He suffered a compensable injury to his lower back in the course of his employment with Industry Strength Electrical Pty Ltd (“the employer”)
2 The plaintiff’s application is based upon paragraph (a) of the definition of “serious injury”, that is, he claims that he has suffered a serious permanent impairment of the function of his lower back.
3 Mr P O’Dwyer QC appeared with Mr M Cvjeticanin of counsel for the plaintiff. Ms J Forbes QC appeared with Ms M Tait of counsel for the defendant.
The Plaintiff’s apprenticeship qualification
4 The plaintiff commenced an apprenticeship as an electrician with Elledat Pty Ltd probably in 2005. He completed two years of the apprenticeship before pursuing other work for about twelve months. He resumed his apprenticeship with the employer on 10 August 2008.
5 The plaintiff completed the practical side of his apprenticeship before 18 November 2010, which is the day on which he suffered injury to his lower back. He had not completed the “schooling” part of his apprenticeship at that stage. He needed to complete a couple of modules at his trade school. He did so about six or seven months after he suffered injury.[1]
[1]Transcript 22-23
6 In order to obtain his license to work as an A-Grade Electrician, it remained for the plaintiff to sit for and pass three exams, comprising theory, practical and safe work practice.
7 The plaintiff sat and passed the safe work practice exam. He sat the theory exam seven or eight times and the practical exam three or four times, failing each time. The only impediment that stands in his way of becoming a licensed A-Grade Electrician is passing those exams. There is no limitation on how many occasions he can sit those exams.[2]
[2]Transcript 23 and 27-29
8 The plaintiff’s completion of his apprenticeship, without passing the exams, nonetheless qualifies him to work as an electrical trade assistant. That job designation is also referred to as a “B-Grade Electrician”.[3]
[3]Transcript 29
The Plaintiff’s injury and treatment
9 On 18 November 2010, the employer sent the plaintiff to Don’s Smallgoods, for whom it did electrical work. While he was walking down a ramp in a freezer he slipped and fell onto his lower back.
10 The plaintiff reported the incident to a nurse in the sickbay at Don’s Smallgoods. He was provided with ice, which he placed on his lower back. He felt some improvement in the pain he was experiencing, so he resumed his work.
11 It was on the following morning that the plaintiff experienced stiffness and soreness in his lower back. He had difficulty getting out of bed. He did not go to work that day. He went and saw Dr Ng, general practitioner, who gave him one week off work and advised him to use Panadol and Voltaren Gel for pain relief. According to Dr Ng’s clinical note, it would appear that he advised the plaintiff to return to work for four hours per day on Monday and Friday and six hours on Tuesday and Thursday.[4]
[4]Exhibit A
12 According to the clinical notes, the plaintiff returned to Dr Ng on 4 November 2011. He obtained a further certificate, presumably relevant to his capacity to work. The plaintiff thought that he returned to Dr Ng “a few days later” after the initial consultation, but the clinical notes suggest otherwise.
13 The clinical notes demonstrate that the plaintiff’s lower back troubled him through the remainder of 2011, and through 2012, 2013, 2014 and in the latter part of 2015. The last occasion he saw Dr Ng in 2015 was on 29 October 2015. The plaintiff saw Dr Ng on one occasion in 2014, probably on one occasion in 2015, and on one occasion in 2016 for treatment for his lower back.
14 The note made on 29 October 2015 is cryptic. I am unable to determine whether it relates to a consultation relevant to the plaintiff’s lower back or not, but the previous consultation on 14 October 2015 was. On that occasion, the plaintiff had experienced three weeks of lower back pain. It would appear that he was prescribed Voltaren.
15 The plaintiff did not see Dr Ng between 29 October 2015 and 27 May 2016. On 27 May 2016, the plaintiff had experienced three days of lower back pain. He was prescribed Voltaren.
16 Dr Ng referred the plaintiff to Mr De Waal, physiotherapist. The plaintiff first saw him on 12 December 2011. According to his clinical notes,[5] the plaintiff saw him once in 2011 and on ten occasions in 2012, the last being on 27 August 2012. At a consultation on 15 August 2012, the plaintiff was still experiencing soreness in his lower back. Mr De Waal recorded that the plaintiff had returned to playing indoor football and was attending a gym. At a consultation on 24 August 2012, Mr De Waal recorded that the plaintiff continued to play indoor football and was going well, but was experiencing some muscle tightness. On the latter occasion, Mr De Waal recorded that the plaintiff felt that his back was “100%” and that he was ready to return to work.
[5]Exhibit 5
17 In a letter dated 27 August 2012, presumably to Dr Ng, Mr De Waal referred to the fact that the plaintiff told him that he had commenced playing indoor football and was attending a gym. Mr De Waal considered that the plaintiff was capable of undertaking full-time unrestricted duties as an electrician. He noted that he had discussed with the plaintiff the “correct way” to lift and handle heavy and difficult loads.[6]
[6]Exhibit 5
18 Dr Ng referred the plaintiff for a plain x-ray and an MRI scan,[7] and to Mr Lo, neurosurgeon, who the plaintiff saw on 5 April 2011. Mr Lo considered that the MRI scan taken on 9 February 2011 demonstrated broad-based disc bulges at L3-4 and L5-S1 which were not contacting any nerve roots. He considered that the plaintiff had suffered an exacerbation of underlying degenerative changes in his lower back which were caused by the incident of 18 November 2010.
[7]Plaintiff’s Court Book (“PCB”) 50 and 51
19 Mr Lo referred the plaintiff to a multi-modality pain management service. The plaintiff engaged in a course of pain management through Spinal Management Clinics of Victoria. That organisation reported to Mr Lo that the plaintiff had undertaken the course and had made gains through pain management. The plaintiff was subsequently discharged from the care of that organisation which recommended that he undertake a self-directed outpatient approach to his pain management.[8]
[8]PCB 21-22 and 24
20 Mr Lo discharged the plaintiff from his care on 5 April 2011. He considered that the plaintiff had a capacity for work with modifications and restrictions, and in particular, no excessive bending or sudden twisting of the back; no excessive lifting of heavy weights; no excessive pulling/pushing/reaching for items, and no abnormally flexed posture. He also considered that the plaintiff would require “maintenance therapy” in the future, comprising treatment by his general practitioner, physiotherapy and engaging in a gym exercise program to develop his core strength.[9]
[9]PCB 23
21 The foregoing comprises a summary of the medical treatment which the plaintiff has been provided. He has had little other medical treatment except for occasions when he has seen Dr Ng.
The Plaintiff’s work post injury
22 The plaintiff continued working for the employer. In addition to his initial period of time off work, when certified as unfit for work or fit for modified hours and work by Dr Ng, the plaintiff was absent from time to time, and on one occasion was absent for several weeks. His employment with the employer was terminated on 17 May 2012. He was informed that it was not required to provide him with light duties, and that, by inference, it was not going to, unless he was able to return to normal duties, otherwise his employment would be terminated.
23 It is evident from the summary of the treatment which the plaintiff obtained through 2012 that his lower back was actively symptomatic, which had resulted in a degree of incapacity for work as an electrician. Following the termination of his employment, the plaintiff was in receipt of weekly payments of compensation and payment of his medical and like expenses.
24 Counsel for the defendant cross-examined the plaintiff regarding his failure to disclose jobs he obtained in his two affidavits and to some of the medico-legal consultants who examined him. I propose to summarise what jobs the plaintiff did obtain before turning to what I make of the plaintiff’s failure to make such disclosure.
25 The plaintiff commenced employment with a Mr Power as a B-Grade Electrician in 2013. He obtained that employment through searching the Internet. He described it as a “trial”. The work involved “running cables, performing ‘fit offs’, maintenance and general electrical work” which also involved getting into roof spaces and under houses. He resigned from that employment after about two weeks because he found this work “very hard on my back”.[10]
[10]PCB 3 and Transcript 29-30
26 The next job the plaintiff obtained was with Ansia. The plaintiff was unable to remember how he obtained that employment. He was unsure whether Ayres Management, or perhaps some other rehabilitation provider, assisted him in finding that employment. He was employed as an assembler. The work involved building switchboards. More particularly, it involved standing in and climbing into switchboards. He worked for Ansia for three or four days.[11]
[11]Transcript 30-31
27 The next job the plaintiff obtained was with GWK Engineering. Ayres Management assisted him in finding that job in early 2014. He was employed as a factory hand. The work involved lifting steel beams onto a bench, cutting steel beams and stacking them. The weight of the steel beams ranged from 10 to 30 kilograms. The plaintiff suffered a flare-up of pain in his lower back. He worked for about five weeks. It would appear that he worked full time for the first week. He was absent for the second week. He worked less than full-time hours in the third week, and maybe 31 hours in the last week.[12]
[12]PCB 11 and Transcript 41-44 and 112
28 The next job the plaintiff obtained was with SiteTech. It would appear that he obtained that job after ceasing work with GWK Engineering. He was employed as a driver. The work involved driving, delivering temporary fencing to various sites, and lifting fencing. He was struggling with that work due to the condition of his lower back. He worked for SiteTech from mid August to early November 2014.[13]
[13]PCB 3-4 and Transcript 44-45 and 114-115
29 The next job the plaintiff obtained was with D & D Insulation Services. He obtained that job through his cousin, who is a builder. He was employed as a contractor which required him to invoice D & D Insulation Services for the work he undertook. The work involved estimating what was required to supply and install insulation at domestic premises. Specifically, it involved measuring plans, using a forklift to load delivery trucks, and driving a small delivery truck. About 80 per cent of his time was spent measuring plans, and about 20 per cent was spent in the factory operating the forklift and driving the small delivery truck. The work involved some lifting of bags of insulation weighing up to 12 kilograms. He worked in that job until May 2016, when he was informed that there was insufficient work available to keep him on.[14]
[14]PCB 4 and Transcript 48-51 and 58-61
30 The plaintiff said that he enjoyed the work with D & D Insulation Services. He would still be working in that job if it was made available to him now. It was a job he said he could cope with physically.[15]
[15]Transcript 105 and 107-108
The other medical evidence
31 The plaintiff was examined by a number of medical practitioners on a medico-legal basis.
32 Counsel for the defendant submitted that the whole of the medical evidence relied upon by the plaintiff and the defendant was rendered unreliable because of the plaintiff’s failure to inform the examining medical practitioners of the work history which I have summarised above. Despite that submission, I propose to first, analyse the conclusions reached by other medical examiners of the injury suffered by the plaintiff and its probable impact upon his capacity for work, and secondly, determine what I should make of those opinions in the light of the submission made by counsel for the defendant.
33 I should add at this point that counsel for the defendant made a much broader attack upon the plaintiff’s creditworthiness and reliability. I will also deal with counsel’s submissions in that regard later in these reasons, where I will consider whether the topics raised during that cross-examination are material to my consideration of the issues in this application.
34 The plaintiff was examined by Mr Brownbill, neurosurgeon, on 19 April 2016. He was not provided with any history of the plaintiff’s subsequent work. He was provided with the report of Mr Lo, the MRI scan, the plain x-ray, and the reports of Mr Scott, general surgeon,[16] and Mr Shannon, orthopaedic surgeon. [17] On examination, Mr Brownbill found restriction of the plaintiff’s thoracolumbar spine, and no objective neurological abnormalities or radiculopathy. He concluded that the plaintiff had suffered soft-tissue injuries to the structures about his lumbar spine with likely intervertebral disc damage. The disc damage appears to be a reference to the two-level lumbar disc protrusions which were demonstrated on the MRI scan.
[16]DCB 22-30
[17]DCB 31-35
35 Mr Brownbill also concluded that in his clinical experience, the pain resulting from such a spinal injury might continue in a fluctuating manner indefinitely. He considered that the plaintiff should avoid heavy lifting, forced spinal mobility and repeated bending or prolonged sitting or standing. He considered that the plaintiff was not capable of undertaking unrestricted work on a regular basis as a licensed electrician. He did not consider that the plaintiff required any specific treatment.[18]
[18]PCB 24-28
36 Mr Brownbill was provided with the plaintiff’s second affidavit. He, therefore, became aware of some of the jobs which the plaintiff undertook subsequent to suffering the injury to his lower back. He did not consider that there was any aspect of what he read in the plaintiff’s second affidavit which caused him to change his earlier stated opinion.[19]
[19]PCB 29
37 Dr Horsley, occupational physician, examined the plaintiff on 18 April 2016. She was provided with the plaintiff’s first affidavit, a number of medical reports, radiological studies and vocational assessment reports.[20] She was later provided with the plaintiff’s second affidavit.[21] Ultimately, she became aware of the jobs which the plaintiff undertook subsequent to suffering injury to his lower back. Her examination of the plaintiff and her reference to the radiological studies led her to conclude that the plaintiff had suffered an injury to his lumbar spine. In giving that opinion, she focused, in particular, on small posterior disc protrusions at L3-4 and L5-S1 which she appears to have considered to be of clinical importance in diagnosing the injury suffered by the plaintiff. Additionally, her clinical examination led her to conclude that there were signs suggestive of progression of the discal lesions, but no clinical radicular features.
[20]PCB 30. She was provided with significantly more material than it would appear was given to Mr Brownbill
[21]PCB 36
38 Dr Horsley considered that the plaintiff symptoms were likely to persist. At the time she examined him, he was working with D & D Insulation Services. She considered that a significant number of work restrictions needed to be applied to the plaintiff, namely, avoiding repetitive overreaching, repetitive pushing and pulling, working in awkward and confined spaces and with prolonged static forward flexion of his lower back, lifting greater than 12 to 15 kilograms except on an occasional basis, and avoiding lifting 10 to 12 kilograms on a repetitive basis. She also considered that his functional tolerances were reduced to sitting between 30 to 60 minutes, static standing up to 30 minutes, dynamic standing between 30 to 60 minutes and driving for an hour.
39 Dr Horsley considered that the plaintiff was permanently unfit for work as an electrician because she considered that the critical physical demands of climbing into awkward and confined spaces in houses are now beyond his retained capacity for work.
40 Mr Troy, general surgeon, examined the plaintiff on 10 August 2011. He was provided with the MRI scan and letters from Mr Lo to the plaintiff’s general practitioner. He considered that the plaintiff was suffering from degenerative disc changes at L3-4 and L5-S1 with a degenerative disc and strain pattern of the left sacroiliac joint. He considered that the plaintiff could continue working on restricted duties, but not as “an active electrician”.[22]
[22]DCB 16-21, and in particular, at 18-19
41 Mr Scott, general surgeon, examined the plaintiff on 21 January 2013. He was provided with the MRI scan. He considered that the plaintiff had suffered a soft-tissue injury or lumbosacral spinal strain and probable initiation or aggravation of minor disc problems at L3-4 and L5-S1. He considered that the injury had largely resolved at the time he examined the plaintiff. He considered that the plaintiff was fit to return “to the workforce” with some minor restrictions. Those restrictions were to work on modified duties, to avoid standing for more than one or two hours, to perform any repetitive bending, and to perform lifting of more than 10 kilograms.[23]
[23]DCB 22-28, and in particular, 26-28
42 Mr Shannon, orthopaedic surgeon, examined the plaintiff on 11 February 2014. The purpose of his examination of the plaintiff was to undertake an impairment assessment according to the 4th Edition of the AMA Guides. Mr Shannon recorded that the plaintiff told him to things which counsel for the defendant submitted were plainly wrong. Firstly, that when he returned to work, he only worked 20 hours per week on light duties, and, secondly, that since being made redundant by the employer, he had not returned to work. Clearly, the latter is wrong when regard is had to the chronology of the plaintiff’s return to work after he was made redundant by the employer.
43 Mr Shannon did not have the MRI scan, but had the report of Mr Lo in which he described the MRI scan. After examining the plaintiff, Mr Shannon concluded that the plaintiff was suffering from mechanical back pain associated with lumbar disc degeneration and disc bulging without evidence of radiculopathy. He considered that the plaintiff’s lower back would be vulnerable to further injury if he went back to heavy physical work.[24]
[24]DCB 31-35 and in particular, at 33-34
44 Mr Love, orthopaedic surgeon, examined the plaintiff on 9 December 2014 and 21 March 2016. On the first occasion he examined the plaintiff, he was provided with the plaintiff’s first affidavit and a number of documents including the report of Mr Lo and the MRI scan.[25] On the second occasion he examined the plaintiff, he considered that the plaintiff had suffered an organic injury, which I assume was a view consistent with the appearances on the MRI scan. He considered that it was unlikely that his injury would resolve. He did not give a direct opinion about whether the plaintiff was capable of working as electrician or not; however, as the plaintiff was working (for D & D Insulation Services) he considered that was suitable work for the plaintiff to undertake.[26]
[25]DCB 37 and 47
[26]DCB 49-51
The Defendant’s case
45 Counsel for the defendant submitted that the reason why the plaintiff failed to disclose the jobs he obtained after he was made redundant by the employer was because he believed that to have done so would not have assisted his case.
46 Counsel for the defendant referred the plaintiff to an affidavit of Ms Warrington sworn 8 June 2016. She is employed by G W K. Counsel put to the plaintiff that he worked a full 38-hour week in the first week, and then began taking time off without providing any reason, and that he just “stopped coming into work” after 20 March 2014.[27]
[27]DCB 9 (a)
47 The plaintiff essentially admitted that he took time off. He contacted Ayres Management, which had found him the job in the first place, and informed it that the required task of lifting steel onto a bench was difficult for him to undertake. He informed someone at G W K that he was “unwell”. He admitted that he did not seek any medical treatment for the difficulties he was experiencing nor did he obtain any medical certificates relevant to his absences. He contacted someone he described as “Scott” who he believed to be a second-in-command at G W K to inform him that he was not able to work, after which he stopped working.[28]
[28]Transcript 42-45
48 Counsel for the defendant put to the plaintiff that, with respect to the job with SiteTech, he had no interest in disclosing what work he did in that job to examining medical practitioners because it involved lifting and carrying which he was able to undertake, and did undertake. It was put to him that such a revelation may have led an examining medical practitioner to conclude that if he was capable of doing that work, his degree of incapacity caused by his lower back injury would have been seen as more on the modest side.[29] Additionally, he wanted to leave the examining medical practitioners with the impression that his retained capacity for work was confined to light work only, and more particularly, the work he last undertook with D & D Insulation Services.
[29]DCB 35
49 In answer, the plaintiff said that the periods of time he worked on the jobs which preceded D & D Insulation Services, were fairly short, and that he had forgotten about them when, for example, he saw Mr Love.[30]
[30]Transcript 42
50 Additionally, with respect to his work with SiteTech, counsel for the defendant suggested to the plaintiff that he did not seek any medical attention for the difficulty he was having with the work he was undertaking with SiteTech, even though those difficulties led to him ceasing work. The plaintiff agreed that he had not sought any medical treatment.[31]
[31]Transcript 34-35
51 The attack on the plaintiff for failing to make this disclosure was more extensive than the summary I have provided thus far, but the summary is sufficient to capture the ultimate submission made by counsel for the defendant that the plaintiff deliberately omitted to disclose the jobs he had obtained after being made redundant by the employer because it was in his interests to portray himself as being significantly incapacitated for a fairly long period of time before obtaining the job with D & D Insulation Services.
52 There is no doubt that the plaintiff did not disclose the jobs he had obtained after being made redundant by the employer at the time he swore his first affidavit. Even after appreciating that he had omitted to disclose highly relevant facts, what he did disclose in his second affidavit is not complete, nor does it describe the actual work which was involved in each of those jobs, the extent to which he undertook that work, or why he ceased working for those employers.
53 Ultimately, counsel for the defendant submitted that the failure to make the relevant disclosure must impact seriously upon the plaintiff’s creditworthiness and reliability, in addition to some other matters I will refer to later in these reasons. It was on this platform that counsel for the defendant invited me to accept little of the plaintiff’s evidence on the issues relevant to whether his pain and suffering consequences and loss of earning capacity consequences meet the statutory tests.
54 Counsel for the plaintiff submitted that the plaintiff did make disclosure in his second affidavit, and that a survey of the medical reports of the medical examiners discloses that the plaintiff made a sufficient disclosure to the likes of Mr Brownbill and Dr Horsley for them to understand that he had made attempts to return to work which they weighed into consideration in arriving at their ultimate conclusions.
55 Additionally, counsel for the plaintiff submitted that I should pay regard to the fact that the plaintiff was twenty-two years of age when he suffered the injury, and is a man of modest intelligence and lacking much sophistication. Counsel submitted that the combination of both of these facts partly explains why the plaintiff failed to make the disclosure that he should have at the outset.
56 After considering competing submissions, I have concluded that the plaintiff did not wilfully omit to make the relevant disclosure. I accept that he may not have understood what was relevant to his application for serious injury when he swore his first affidavit and that once he became aware he did make disclosure, albeit an incomplete sense.
57 In any event, it is necessary for me to determine whether a complete disclosure would have seen any of the medical examiners change their opinions unfavourably to the plaintiff.
58 Counsel for the plaintiff made a telling point, that rather than impacting upon his creditworthiness and reliability, the fact that the plaintiff was motivated to find work and pursue it goes more to his credit and resilience. Additionally, the fact that he obtained those jobs and found that he could not cope with the work he was required to do, demonstrates that his lower back injury was partially incapacitated rendering him fit for light work. I think there is merit in that submission.
59 Looking at all of the evidence, it appears to me that the plaintiff suffered an injury to his lower back consistent with the diagnosis made by Mr Lo, and confirmed by number of later medical examiners. Through 2010 to the end of 2012, the plaintiff was undergoing active medical treatment. I accept that through those years, he was at least partially incapacitated for work as an electrician. I accept that he was left in a position where there was no treatment available to him which was likely to improve his lower back condition except for self-administered rehabilitation and heeding advice he was given to avoid work activities which were likely to aggravate his lower back.
60 I accept that the plaintiff was motivated to return to work. I accept that he made reasonable attempts to obtain suitable employment, but the nature of the work he performed with each of those subsequent employers was unsuitable. I am fortified in reaching that conclusion because the preponderance of the medical evidence supports the conclusion that the plaintiff has an actively symptomatic lower back which incapacitates him for work, save for light work consistent with the kind of work he was doing with D & D Insulation Services.
61 Counsel for the defendant cross-examined the plaintiff regarding a claim he made for reimbursement for his loss of wages when he left his work in order to see Mr Love on 21 March 2016. The plaintiff worked that day from 7.15am to 10.00am. He submitted a claim for nine hours loss of wages without taking into account the actual hours that he worked.[32] The plaintiff admitted that the claim was a mistake because he had forgotten that he had submitted an invoice to D & D for the hours that he actually worked.[33]
[32]DCB 6 and 7
[33]Transcript 63-67
62 Counsel for the defendant submitted that the documents were a contrivance prepared by the plaintiff himself, purporting to be documents prepared by D & D Insulation Services. The plaintiff admitted that he prepared both a document setting out his loss of wages for that day and the claim for that loss of wages.[34]
[34]Transcript 65-66
63 There appears to be no doubt that the plaintiff prepared both documents in support of his claim for loss of wages. Two issues are troubling: whether he prepared those documents with any authority from D & D Insulation Services, and whether he submitted the claim for loss of wages when he knew that the claim was for the whole of his loss when he had claimed part of that loss from D & D Insulation Services.
64 Even if I were to conclude that the plaintiff’s claim was false in part, the question is whether it alone impacts much upon his creditworthiness and reliability. This must be seen in the context of the occurrence of the injury, the treatment the plaintiff obtained for the injury, his attempts to return to suitable employment and his securing of suitable employment with D & D Insulation Services. Therefore, I do not accept that the matter of whether the plaintiff submitted a false claim or did so carelessly, has much of an impact on his creditworthiness and reliability relevant to the issues which directly arise for my consideration in determining the merits of this application.
65 Counsel for the defendant submitted that the plaintiff had also failed to disclose the extent to which he engaged in a number of recreational activities. Principally, trailbike riding and playing indoor football. This was also said to go to his creditworthiness and reliability.
66 In relation to trailbike riding, it would appear that the plaintiff did not disclose the extent to which he continued to ride a trailbike. The evidence discloses that he bought a yellow coloured trailbike shown in a photograph from his Facebook page. He subsequently sold it and purchased a blue coloured trailbike. He purchased both after he suffered the injury.[35] He sold the blue coloured trailbike about three or four months ago. He said that he could not use it because of the impact on his lower back when riding it over testing terrain.[36]
[35]Exhibit 1, and Transcript 88-90
[36]Transcript 97-98 and 93
67 In addition to the photographs taken from the plaintiff’s Facebook page, video footage was taken from the Facebook page. The video footage was taken on 9 May 2015. It showed the following:[37]
[37]Exhibit 2. I was informed by counsel for the defendant that the only relevant parts of the video with those shown to me
· At 1.25pm, the plaintiff and three other men were riding trailbikes along a gravel driveway. The plaintiff was one of the riders on his yellow trailbike.
· At 3.40pm, the plaintiff and his wife were observed at their wedding on the dance floor. The plaintiff wrapped his arms around his wife’s lower body and lifted her up.
68 The plaintiff admitted that he was one of the four men seen riding trailbikes along the gravel driveway. He admitted that he lifted his wife. When it was put to him that he lifted his wife without any apparent difficulty, he said that he did so “without any thought,” which I took to mean that it was something that he would ordinarily not do.[38]
[38]Transcript 94
69 The plaintiff admitted that while riding a trailbike in November-December 2013, the bike slipped from under him, with the result that it ran into a tree. He suffered a broken collarbone, requiring his arm to be carried in a sling.[39] There was some debate as to the speed he was travelling at the time when this incident occurred. The impression I was left with was that he was travelling at a reasonable speed and perhaps as fast as 60 kilometres per hour.
[39]Transcript 85-86
70 One of the photographs taken from the plaintiff’s Facebook page shows the plaintiff on a trailbike on 21 September 2014, with the trailbike airborne, having just gone over a small rise. It was suggested to the plaintiff that what he said in his first affidavit that he hardly rides a motorcycle was untrue. The plaintiff said that the photograph was taken on one of the few occasions that he did ride a motorcycle in 2014.[40]
[40]PCB 13 and Transcript 83-84
71 The plaintiff was shown a photograph from his Facebook page which showed a number of parked four-wheel-drive vehicles, two of which had trailers attached with four-wheel trike and trailbikes on board the trailers. The photograph was taken on 5 June 2016. The plaintiff said that he went away with about 15 people. He drove his own four-wheel-drive on a camping trip where he and the others stayed in cabins.[41] The plaintiff said that he tried to ride a friend’s trailbike for about 10 minutes on that trip away. He was unable to tolerate the bumpy terrain over which he rode the trailbike. [42]
[41]Transcript 87-88
[42]Transcript 99
72 The plaintiff admitted that he may have commenced playing indoor football in mid-2012 consistent with what he told Mr De Waal.[43] The plaintiff said that he discontinued playing because the contact which resulted from playing indoor football was “too intense for my injury”, which I take to mean that he suffered an increase in pain in his lower back.[44]
[43]Transcript 90
[44]Transcript 100
73 Counsel for the defendant submitted that the plaintiff’s recreational activities of trailbike riding, camping and other outdoor activities, as well as his pursuit of indoor football, have not been disclosed by the plaintiff in the detail that became apparent when he was cross-examined. It was submitted that this was much like the plaintiff’s failure to disclose the jobs he obtained after he was made redundant by the employer. It suggested that all of this demonstrated a tendency on the part of the plaintiff to downplay matters which were unlikely to assist him in his case.
74 Whilst it is true that the plaintiff appeared to deny engaging in the demonstrated level of recreational activities, again, it is necessary for me to determine the impact that they have on his creditworthiness and reliability. The fact that he is able to drive a four-wheel-drive and go on trips with his family into country Victoria are not necessarily things which are beyond someone who has an incapacitating lower back injury. Riding a trailbike would be inconsistent, but in the plaintiff’s case, the fact that he sold his last trailbike some three or four months ago, and was only able to ride a friend’s trailbike for about 10 minutes demonstrate that he has practically no tolerance any longer to trailbike riding. Whilst I am a bit troubled by what I have seen on the Facebook page and in the video, I am not prepared to conclude that they so seriously impact upon the plaintiff’s creditworthiness and reliability for me to conclude that he does not have an actively symptomatic lower back injury which has rendered him partially incapacitated for work. What I make of the plaintiff’s return to playing indoor football is much the same as my conclusions about his trailbike riding. That is the fact that the plaintiff discontinued playing indoor football demonstrates that he has no tolerance for such an activity.
The loss of earning capacity claim
75 At the time when the plaintiff was injured, he was under twenty-six years of age, and in fact was twenty-two years of age. Section 134AB(38)(e)(i) provides that ss(38)(f) does not apply where the worker is under twenty-six years of age at the time when the worker was injured.
76 What that means for the plaintiff is that the assessment of his loss of earning capacity is to be undertaken by reference to general common law principles and not by reference to ss(38)(f).
77 Counsel for the plaintiff submitted that the only barrier to the plaintiff completing his apprenticeship as an A-Grade Electrician was passing the practical and theory exams. He submitted that because the plaintiff had set out on a career path to obtain that qualification, the fact that he had failed the practical and theory exams so many times should not lead me to conclude that there was no likelihood that he would eventually pass those exams and qualify to be licensed as an A-Grade Electrician.
78 Counsel for the plaintiff submitted that I should accept that the plaintiff would qualify and be capable of earning an income as an A-Grade Electrician of $100,000 gross per annum or thereabouts. Counsel submitted that I should accept that the plaintiff has a residual capacity for work which is only exercisable in work of the kind he was performing with D & D Insulation Services.
79 The income figures which both counsel submitted that I should consider are the following agreed figures:
· Employee A – for the year ending 30 June 2016, gross earnings of $114,093[45] per annum ($2,189.98 gross per week) – 60 per cent is $68,455.80 gross per annum ($1,313.93 gross per week).
[45] Any and all figures that refer to annual or weekly wages are figures and calculations provided by the plaintiff.
· Employee B – for the year ending 30 June 2016, gross earnings of $97,469 per annum ($1,870.81 gross per week) – 60 per cent is $58,481.40 gross per annum ($1,122.48 gross per week).
· Earnings of an A-Grade Electrician who works at a worksite governed by the Electrical Trades Union is $96,020 gross per annum ($1,843.13 gross per week) – 60 per cent is $57,612 gross per annum ($1,105.80 gross per week).
· The earnings of a B-Grade Electrician are to be calculated at 90 per cent of the earnings of an A-Grade Electrician.
· Earnings of a B-Grade Electrician who works at a worksite governed by the Electrical Trades Union are $86,418 gross per annum ($1,658.69 gross per week) – 60 per cent is $51,850.80 gross per annum ($995.22 gross per week).
80 In Malec v Hutton,[46] Deane, Gaudron and McHugh JJ referred to the process of reasoning which I must apply as follows:
“When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. Hence, in respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. See Mallett v McMonagle (1970) AC 166, at p 174; Davies v Taylor (1974) AC 207, at pp 212, 219; McIntosh v Williams (1979) 2 NSWLR 543, at pp 550-551. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.”[47]
[46](1990) 169 CLR 638
[47]at 642-643
81 In State of New South Wales v Moss,[48] Heydon JA observed:
“… The compensable loss is not a loss of income but the loss of capacity to earn income in a manner productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. The income earned before the injury is relevant, but only as an evidentiary aid in assessing damages for the loss of capacity to earn income: Paff v Speed (1961) 105 CLR 549 at 566 per Windeyer J. Evaluation of the worth of a loss of capacity to earn - of a lost chance to earn - is of its nature a more imprecise inquiry than calculation of a lost income. It rests on the hypothesis - that the plaintiff will have undiminished capacity - which has been rendered false by events. It does not depend on calculating the income from a particular career which is no longer possible, but in calculating the damage to a capacity to carry on various careers. It is an exercise in estimation of possibilities, not proof of probabilities … .”[49]
[48][2000] NSWCA 133
[49]paragraph [71]
82 And later, when dealing with the almost inevitable difficulties in assessing loss of earning capacity, Heydon JA added:
“… the mere fact that the quantum of damages is difficult to assess does not mean that the plaintiff is only entitled to a nominal sum. This principle applies as much to the assessment of damages for impaired earning capacity in injured plaintiffs as it does to pecuniary loss caused by negligent advice (Bowen v Blair [1933] VLR 398) or to loss in the form of the diminished value of damaged property (Wheeler v Riverside Coal Transport Co Pty Ltd [1964] Qd R 113), or equitable damages (Talbot v General Television Corporation Pty Ltd [1980] VR 224 at 250-1), or damages for breach of contract (Fink v Fink (1946) 74 CLR 127 at 143). In the last case, Dixon and McTiernan JJ put the following general proposition: ‘Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat the only remedy it provided for breach of contract, an award of damages.’ This was followed in Sellars v Adelaide Petroleum NL (1994) 185 (scil 179) CLR 332 at 349 per Mason CJ, Dawson, Toohey and Gaudron JJ. The same is true in tort. In Naylor v Yorkshire Electricity Board [1968] AC 529 at 548 Lord Devlin said: ‘in the law of damages … difficulty in calculation is not ordinarily taken as a ground either for reducing or for increasing the award’. The court will be more ready to shoulder the burden of acting without specific evidence where that evidence is difficult to call. In Biggin & Co Ltd v Permanite Ltd [1951] 1 KB 422 at 438, a sale of goods case involving a recovery in respect of damaged goods, Devlin J said: ‘It is only that where precise evidence is obtainable the Court naturally expects to have it. Where it is not the Court must do the best it can’. As McPherson J said in Nilon v Bezzina [1988] 2 Qd R 420 at 424: ‘The degree of precision with which damages are to be proved is proportionate to the proof reasonably available’ … .”[50]
[50]paragraph [72]
83 The conclusions I will refer to below are somewhat repetitious of the summary of evidence I have set out above. However, I think that it is necessary to make clear the basis upon which I have concluded that I should accept the submissions made by counsel for the plaintiff.
84 The plaintiff suffered an injury which I accept is consistent with the diagnosis made by Mr Lo, and confirmed by the opinions of a number of subsequent medical practitioners.
85 I accept that the plaintiff developed a symptomatic lower back condition which was unlikely to improve to the point where he would not be able to return to work as an “A” or “B”-Grade Electrician.
86 Despite some misgivings I have about the plaintiff’s failure to disclose jobs he obtained after he was made redundant by the employer, and aspects of his recreational pursuits, I nonetheless accept that he was motivated to obtain alternative employment and did so with a number of employers before obtaining suitable alternative employment with D & D Insulation Services. I accept that the other forms of alternative employment he obtained were unsuitable, because the work he was required to perform imposed stresses and strains on his lower back which he was unable to tolerate.
87 Therefore, I have concluded that the plaintiff is fit for alternative employment consistent with the work he performed with D & D Insulation Services. To ensure that my reasons are properly understood, I accept the plaintiff’s evidence that the work of a B-Grade Electrician would require him to engage in work which he is simply not able to tolerate any longer. Furthermore, I accept that the other jobs which the plaintiff obtained after he was made redundant by the second defendant involved physical work which the plaintiff was likewise unable to tolerate.
88 The question that remains to be answered is whether the evidence permits me to make an assessment of the possibilities that the plaintiff would have qualified as an A-Grade Electrician, and would have been capable of earning an income in the range submitted by counsel for the plaintiff.
89 The conclusion I have reached is that it is well within the range of possibilities that the plaintiff would have qualified to be licensed as an A-Grade Electrician. My reasons for reaching that conclusion are as follows.
90 First, the plaintiff engaged in an apprenticeship which he completed except for performing satisfactorily in exams in practical and theoretical work which were necessary for the completion of his apprenticeship so that he could be licensed as an A-Grade Electrician.
91 Secondly, the fact that he had failed the practical and theoretical exams so many times does not mean that he did not intend to sit for those exams again. Indeed, his evidence was that there was no limitation on the number of times he could sit those exams, and the strong impression I gained from his evidence was that he intended to do just that until he had passed them.
92 Thirdly, it is a fair conclusion to draw that had the plaintiff not been injured, he would have continued working as electrician with the employer, or perhaps with other employers as a B-Grade Electrician until such time as he was capable of becoming registered as a A-Grade Electrician, or in some other employment not directly related to work as an electrician.
93 Counsel for the defendant essentially submitted that because the plaintiff had failed the practical and theoretical exams so many times, that the die was cast that he was unlikely to pass those exams and be licensed as an A-Grade Electrician. Essentially, counsel submitted that the plaintiff would have been consigned to work as a B-Grade Electrician, or in some allied field of work, which would have attracted a significantly lower income. Counsel submitted that I should accept that the plaintiff would have earned an award wage under the Electrical, Electronic and Communications Award 2010 which provides that a B-Grade Electrician must be paid $811.51 gross per week, and with appropriate allowances for travel, it would equate to $48,682.76 gross per annum ($934.41 gross per week).
94 Another part of the award provided that a wage for such an electrician working on construction projects under the Electrical Trade Union wage rates would earn $86,418 gross per annum ($1,658.69 gross per week).
95 Counsel for the defendant submitted that I should conclude that the plaintiff would not have worked on construction projects, because there is simply no evidence from the plaintiff that he would have taken up that work. However, I am not persuaded by the fact that he had not worked on construction sites, and had not evinced an intention to do so at some stage in the future, is the end of the matter. The plaintiff was sufficiently qualified to be regarded as a B-Grade Electrician, and therefore, that opened up a field of work for him which inevitably included construction work. I do not think that the process of reasoning which I understand Malec and Moss to stand for should see me confine the assessment that I should make in that way.
96
In any event, the conclusion I have reached regarding the plaintiff obtaining a license as an A-Grade Electrician, is within the range of possibilities achievable by the plaintiff. Furthermore, the income which he would have been capable of earning would have approached the income of Employee
“A” and Employee “B”. I do not think it unreasonable to conclude that he would have earned something approaching $100,000 gross per annum. I think that is a fair conclusion, because there was no evidence to suggest that when he worked with the employer he did not apply himself to his work.
97 Therefore, the figures which are relevant in making the statutory comparison is the income which the plaintiff was earning with D & D Insulation Services ($31,249 gross for the year ending 30 June 2015) against the income of an A-Grade Electrician.
98 In the end, I am satisfied that, when judged by comparison with other cases in the range of possible impairments or losses, the plaintiff’s loss of earning capacity consequences can be fairly described as “at least very considerable”, because he is able to demonstrate a permanent loss of earning capacity of 40 per cent or more.
99 Now that I have reached that conclusion, I am not required to separately determine whether the pain and suffering consequences are also at least very considerable to order that the plaintiff be given leave under both heads to recover damages at common law.[51]
[51]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
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