Tonkin v Leo Force Pty Ltd
[2017] VCC 740
•14 June 2017
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-00085
| JASON PAUL TONKIN | Plaintiff |
| V | |
| LEO FORCE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 5, 6 June 2017 | |
DATE OF JUDGMENT: | 14 June 2017 | |
CASE MAY BE CITED AS: | Tonkin v Leo Force Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 740 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act 1985; s134AB application for leave to bring damages claim; definition of serious injury s134AB(37)(c); claim for pain and suffering and pecuniary loss damages; Leave granted.
Legislation Cited: Accident Compensation Act 1985; Transport Accident Act 1986; Income Tax Assessment Act 1997
Cases Cited:Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Phelan v Transport Accident Commission [2013] VSCA 306; AG Staff Pty Ltd v Filipowicz [2012] VSCA 60; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; The Herald & Weekly Times Limited v Jessop [2014] VSCA 292; Guthrie v Campion Education (Aust) Pty Ltd [2009] VCC 1141; Martinson v Transport Accident Commission [1998] VCAT 142; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to bring a damages claim against the defendant for both pain and suffering damages and pecuniary loss damages. Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I.R. Fehring with Mr G. Pierorazio | Taits Legal |
| For the Defendant | Mr W.R. Middleton QC with Ms D. Manova | Thomson Geer |
HIS HONOUR:
Background
1 Mr Tonkin, the plaintiff in this case, was born in 1977 and completed his education to Year 11. Since then, he has worked as a security guard and in retail sales. He has also worked as a truck driver in Victoria and Queensland. Between 2004-2007 he worked as a farm machinery representative with Western District Agriculture. (Plaintiff’s Court Book (“PCB”) 8)
2 He suffered injury in a motor vehicle accident in 1999 and injured his back in 2011. According to an affidavit sworn 29 August 2016 in this proceeding, he “made a reasonable recovery from those injuries but from time-to-time [he has] had back pain”.
3 Mr Tonkin worked for the defendant, Leo Force Pty Ltd, from 2010 to 2012. He was terminated by the defendant on 7 December 2011 following a downturn in work. (Transcript (“T”) 18, Line(s) (“L”) 9-12)
4 Mr Tonkin then worked for another freight company called Houston Contracting. (T21, L24-28) He worked for Houston Contracting until the middle of 2012 [viz June] driving tip-trucks. Because of the mode of operation of the trucks, there was no lifting involved. (T22, L1-10)
5 Next, Mr Tonkin worked for Mt Noorat Freighters from June 2012. He said Mt Noorat provided preferable employment to what was offered to him by Houston Contracting because it entailed regular hours and full-time employment. (Ibid, L13)
6 Then, Mr Tonkin said “he got offered a better job back at Patons [viz Leo Force Pty Ltd]. (T24, L16) He worked for the defendant from 10 May 2013 to 6 August 2013, that is, for a period of 12½ weeks.
7 Mr Tonkin described his duties in the defendant’s employ as driving a B-double truck from Warrnambool to Mt Gambier, loading and unloading general freight, and lifting things on and off the truck, in conjunction with forklifts in relation to palletised items and without forklifts for the other items. Palletised items were loaded by forklift on the lower portion of the trailers and loose freight was placed on top. As to the loose items, principally tyres, Mr Tonkin was required to lift and heave in items up to 20 kilograms. He set out at 4.30am from Warrnambool, returning at 3.00pm. Mr Tonkin is licensed to operate a forklift. (T24-25)
8 Mr Tonkin ceased employment with the defendant in circumstances which were disputed during the hearing before me. It is common ground that the defendant terminated his services with effect from 24 June 2013. (Defendant’s Court Book (“DCB”) 9-10)
9 Mr Tonkin lodged a WorkCover claim form dated 14 November 2013 seeking compensation under the Accident Compensation Act 1985. The injury to his back was said to have occurred in the following way:
“Performing duties as a truck driver unloading and loading freight driving my designated truck and further by way of a gradual process over time which is due to the nature of employment.” (DCB 9)
10 The defendant’s register of injuries, incidents and near misses records Mr Tonkin as having injured his “lower back” with the symptoms being “pain in lower back”. (DCB 97)
11 Mr Tonkin then returned to employment with Mt Noorat Freighters commencing 21 August 2013. He ceased work with that employer on 11 October 2013. In a claim for compensation under the Accident Compensation Act, completed 21 March 2014, Mr Tonkin said he had suffered an injury to the “back”, describing the injury as having occurred in the following manner: “Driving trucks for long distances and prolonged sitting and bouncing up and down in truck seat and - or alternatively a gradual process over time due to the nature of employment”. (DCB 11-12)
12 According to his affidavit sworn 29 August 2016, the work for Mt Noorat Freighters:
“was really too heavy for me and I wasn’t able to continue and I gave it up by the end of that year. I had ongoing treatment and the pain settled somewhat but never went away and certainly the restrictions in terms of bending, lifting and squatting have never gone away since my further injury [that is one occurring during the second period of employment with the defendant]. I obtained work as a taxi driver in late 2015 and I have had continued doing that since that time. I work approximately 30 hours per week. When I am driving and I have to take a rest I just get out of the car and walk around and stretch my back because the sitting becomes painful and certainly if I had to do any prolonged driving then the back will play up.” (PCB 12, paragraph 15)
13 Mr Tonkin said he has to exit the taxi every 30 minutes:
“to walk around and ease my lower back pain. I can only tolerate 30 minutes of sitting. I believe that I would be able to manage being a Taxi driver, provided there is no heavy lifting and I am able to get in and out of the car, on a periodical basis.” (PCB 12-13, paragraph 16)
14 Mr Tonkin attends the Warrnambool Clinic and is treated by general practitioner, Dr Dina Elhalawani. As at 29 August 2016 he said he was:
“taking Celebrex daily and Panadeine Forte from time to time and Panadol Osteo every day. I use ice packs on the back particularly when I have had a bad day and I’m no longer having chiropractic treatment as I have had in the past.”
15 Mr Tonkin further stated in his first affidavit:
“I do not believe I could work fulltime doing taxi work. I certainly couldn’t do truck driving or any manual labouring job. I don’t believe I could go back to a sales position where you have to be on your feet all day and moving around. My present job suits me because I have times when I am not busy and I can stretch and rest and I am able to cope with that.” (PCB 13, paragraph 18)
16 As at August 2016, Mr Tonkin deposed:
“I have constant pain across my lower back. It fluctuates with severity. I experience numbness down both thighs. It’s like if your leg goes half asleep. At times when seated on the toilet and have bowel motion and when I am trying to get up I have no feeling in my left ankle. I experience symptoms running down the back of my thigh into the back of my knee on my right leg and on my left leg it radiates at the back of my left thigh to the middle but not to the back of my knee.” (PCB 17)
17 Mr Tonkin says that he uses a “push mower” to mow his lawn. In viva voce evidence he clarified this by saying the mower is a power mower but presumably not self-propelled. (PCB 18; T67, L11-15) He said after two hours of mowing an area 16 metres by 6 metres “…I have to use an ice pack to 20 minutes and rest. I would spend 2 hours using an ice pack to try and ease the pain to my lower back.” (PCB 18, paragraph 40)
18 Mr Tonkin has had to cease chiropractic treatment “due to financial reasons” from April 2015. (PCB 19-20, paragraph 45) He has now been diagnosed with sleep apnoea. (PCB 20, paragraph 46; Clinical record 18 December 2015, 16 February 2016, DCB 101) Mr Tonkin complains of impairment to his memory and concentration. He “cannot remember appointments or where [he places] things”. (Ibid, paragraph 49) He said he used to help with household chores but stooping and repetitive movements aggravates his back pain and so he has had to cut his involvement. (PCB 21, paragraph 51) He complained of a loss of interest in sexual intercourse which he said was painful at times. (PCB 22, paragraph 54)
19 As a taxi driver, Mr Tonkin complains of being troubled by the need to lift luggage for elderly or infirm passengers. He said he has to take particular care in this respect and limits himself “to between 10kgs to 15kgs”. (PCB 24, paragraph 3)
20 He said, in an affidavit sworn 10 May this year:
“When the pain is severe I do not complete the shift entirely and I go home early. I am treated as an Independent Contractor as a Taxi Driver. Therefore it is up to me to work the hours I can manage.” (PCB 25, paragraph 7)
21 He complains that he struggles with prolonged standing. He can tolerate between 30-45 minutes. (Ibid, paragraph 8)
22 Mr Tonkin complains that his previous recreations of golf and fishing are now denied because of his back pain. His son enjoys cricket and he tries to join in, but suffers pain as a result. (PCB 26, paragraphs 15 & 16)
23 An attempt to support his children on their journey to school and improve his fitness by bicycle riding have proved abortive because of the pain which he suffers with a resultant increase in weight from 90 kilograms “to over 100 kilograms. This has also compounded my back pain.” (PCB 27, paragraphs 17, 18 & 19)
24 In his affidavit of 10 May 2017, he said that he has now joined “13Cabs” in Warrnambool and that he was “struggling to 60 hours a week. For financial reasons I have continued to push myself as I have a mortgage which is in arrears and the bank are threating (sic) to sell my house.” He said he had increased his pain relief medication to 1000mg daily of Naproxen and Panadeine Forte, 2-6 per day, but he has ceased taking Celebrex. He said:
“I should not be working the long hours that I am but I need the money to keep my family. My back pain is getting worse because of the long hours that I am driving.” (PCB 28, paragraph 25)
The proceeding
25 Solicitors acting for Mr Tonkin issued an Originating Motion earlier this year, seeking leave for Mr Tonkin to commence proceedings to recover damages from the defendant for injuries said to arise out of or in the course of Mr Tonkin’s employment with it between May and August 2013, on the basis that Mr Tonkin has suffered a serious injury. The Originating Motion sought a finding of serious injury based on both organic and psychiatric matters.
26 When the case was opened on behalf of Mr Tonkin by his counsel, Mr Fehring and Mr Pierorazio, Mr Fehring announced that the plaintiff relied only on paragraph (a) of the definition of “serious injury” in s134AB(37) of the Accident Compensation Act and sought leave to commence proceedings both for pain and suffering and pecuniary loss.
Legal issues
27 With respect to his claim against his former employer, the defendant Leo Force Pty Ltd, Mr Tonkin is a “worker” within the meaning of the Accident Compensation Act. By virtue of s134AB of that Act, he is precluded from recovering damages against his former employer except in accordance with the terms of that section. Sub-section (2) enables a worker to bring a damages claim if the injury is a “serious injury”.
28 Sub-section (37) defines “serious injury” as follows:
“(a)permanent serious impairment or loss of a body function; or
(b)permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d)loss of a foetus.”
29 Sub-section (38) makes further provision as to the assessment of the seriousness of an injury. Paragraphs (b) and (c) provide:
“(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;”
30 Paragraphs (h) and (i) are also relevant, providing:
“(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury not otherwise;
(i)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury not otherwise;”
Expert opinions
31 Since 2013, Mr Tonkin has received extensive treatment at the Davis Chiropractic Centre. Chiropractor, Dr Katie O’Keefe, provided a number of reports. The first, dated 18 January 2014, was addressed to Mr Tonkin’s solicitors. It referred to Mr Tonkin’s first consultation at the clinic on 1 September 2011, when Dr O’Keefe said he was ─
“(c)omplaining of Low Back Pain and mid Thoracic pain. The pain being sharp shooting at the time of consultation. Jason was suffering from back pain for over 10 years prior. In 1999/2000 Jason had a motorcycle accident.”
32 Dr O’Keefe referred to a history given at the initial consultation, presumably 1 September 2011, that Mr Tonkin “was driving trucks and having to throw tyres.” She noted that his back was ─
“…aggravated by sitting for long periods and [he] would occasionally experience numbness down his legs if sitting on the toilet for too long.”
33 She noted reports of severe headaches entailing loss of vision “over left eye”. She said that Mr Tonkin had previously seen Dr Robert Smyth and Dr Timothy Free, the latter of whom had taken spinal x-rays which Dr O’Keefe was able to view in September 2011. On examination, she found:
“mild pain and reduced extension of … lumbar spine. Lower limb reflexes were present and strong. The pain when examined showed no abnormality detected … straight leg raising showed NAD [but] palpation over his third lumbar, seventh thoracic and left sacroiliac joint revealed pain.”
She said she diagnosed sacroiliac joint pain.
34 Following that initial September 2011 consultation, she reported further appointments in which time his low back strength and leg strength increased. She referred to a presentation on 20 April 2012 with severe headaches, on 24 June 2013 with low back pain, and on 4 September 2013 with “acute low back pain”. His last appointment at the centre was on the day of the report on 17 October 2013. Dr O’Keefe said that, in her opinion, “Jason’s chronic low back pain [would] be aggravated by prolonged sitting in a truck and heavy lifting and bending.” (PCB 36)
35 Dr O’Keefe provided a further report to Mr Tonkin’s solicitors, undated but received by the solicitors on 17 February 2015. She said that Mr Tonkin continued treatment at the clinic “for maintenance on his low back”. She said he was still experiencing pain in the low back which limited everyday activities. He was certainly showing increased strength throughout his body after chiropractic treatment. She said that the clinic’s goal was “to get Jason back into regular exercises to help minimise his low back pain and increase his overall strength”. (PCB 37)
36 At material times, Mr Tonkin’s medical management was in the hands of practitioners at the Warrnambool Medical Centre, principally Dr Dina Elhalawani. She provided a report to Mr Tonkin’s solicitor by way of letter dated 24 January 2014. She reported that she had referred Mr Tonkin for an MRI scan on 18 October 2013, following a history of low back pain. She said the scan “confirmed the diagnosis of central disc protrusion at L5/S1”. Dr Elhalawani remarked:
“As Mr Tonkin is not able to pinpoint any specific event that caused the initial back problem, it is difficult to be 100% confident that it was indeed a work place injury. However, the loading and unloading of heavily weighted items, would definitely contribute to back injury.”
37 She said that Mr Tonkin was “unable to work due to his current injury”. She added that he would be able to work in future “as his condition is likely to improve with ongoing physiotherapy”. (PCB 39) According to Dr Elhalawani, Mr Tonkin was undergoing regular physiotherapy with Toby Pettigrew. He had previously been prescribed Prednisolone and was at that stage on anti-inflammatories, [viz Celebrex] and Endone for pain relief. (PCB 40)
38 In a further report to Mr Tonkin’s solicitor dated 10 February 2015, Dr Elhalawani reported that she had continued to see Mr Tonkin “on a regular monthly basis”, and that he continued to have lower back pain, varying from mild to severe. She said he suffered an “exacerbation of pain around October 2014 which caused a severe impact on his daily activities requiring him to have re-introduction of most of his pain relief medication”. She said Mr Tonkin had “ongoing frustration and adjustment disorder with depressed mood” as a result of his pain and his “ongoing struggle with the workcover income and loss of income and his inability to work”. She said that Mr Tonkin was clear to work as long as his job did not involve driving trucks. (PCB 41) In a further report to the solicitor dated 1 August 2016, Dr Elhalawani said that Mr Tonkin had remained stable and was receiving the following medication:
·Celebrex – 200 mg daily
·Panadol Osteo – 2 tablets tds
·Monthly chiropractic visits.
She said that over the previous three weeks, Mr Tonkin had a “flare up of his pain requiring stronger relief in [the form of] Panadeine Forte”. (PCB 42)
39 The doctor’s next update was dated 10 April 2017. She said, as at that date for the previous six months had “experienced increased levels of pain in his lower back”. She said the pain was worse and “unmanageable”, by reason of the work he was undertaking and day-to-day activities such as playing with the children, mowing the lawns, etc. She said that he had had a follow-up MRI scan and was, as at that date, on Naproxen 1000 milligrams daily and 2-6 Panadeine Forte per day. The doctor said she was “keen” to have Mr Tonkin undertake a pain management program, “however funding is an issue. But the sooner we can do that for Jason the better”. (PCB 43)
40 The findings of the MRI scan of the lumbar spine were as follows:
“Findings: Standard lumbosacral spine MRI has been performed. After reviewing the imagery, further imagining of the sacrum together with post contrast study has been undertaken.
The left S3 anterior sacral foramen is expanded with an enhancing mass located within it measuring approximately 12mm transverse and 17mm longitudinal. Medially proximal to it there is lobulated CSF density cyst ? perineural or [illegible] cyst. The lesion is reduced signal T1, intermediate to increased signal T2 and demonstrates focal moderately vivid enhancement following intravenous Gadolinium (series 112 image 15, series 113 image 9 and 10).”
The margins of the expanded sacral foramen are smooth and appear to be corticated suggesting that this is a slow growing lesion. It is mildly enlarged when compared with Warrnambool Radiology MRI 22/10/13.
The S1-2 intravertebral disc is rudimentary.
No other mass lesion is seen.
The L5-S1 disc is degenerate with a broad based shallow non compressive disc protrusion extending to the right S1 nerve root but not displacing it. Mild right-sided facet joint OA is changed.
The L1-2-L4-5 intravertebral discs inclusive are normal in appearance. A conus is located at L1 level. No central canal stenosis seen.
Conclusion: Left-sided sacral lesion consistent with a nerve sheath tumour such as schwannoma.” (PCB 44)
41 Dr Elhalawani remarked “Please note that the schwannoma is more an incidental finding and unlikely [to be] related to any of his symptoms”. (PCB 43)
42 Dr Michael Harney of the Davis Chiropractic Clinic provided a final report to Mr Tonkin’s solicitor dated 1 May 2016, noting a number of attendances complaining that the management plan made for Mr Tonkin would not be implemented “due to financial reasons. Suffering from such a chronic condition [as Mr Tonkin is], this will be something that will not only affect Mr Tonkin’s management but also how his condition progresses.” (PCB 45)
43 Mr Tonkin attended Mr John O’Brien, at the request of his solicitors, for medico-legal purposes on 3 February 2015. Mr O’Brien took a history of a back injury in September 2011 when Mr Tonkin was “unloading truck tyres from the back of a truck when he stated that on lifting a tyre he experienced a sudden onset of severe low back pain”. Following severe back pain and a course of chiropractic treatment, according to the history given to Mr O’Brien, the 2011 injury “improved and eventually resolved”. (PCB 49) According to the history recorded by Mr O’Brien of the 2013 injury, the one the subject of this proceeding:
“Mr Tonkin stated that in September 2013 he was driving his truck when he experienced a sudden pinching sensation in his lower back. This, the patient stated, was immediately associated with quite severe low back pain. The patient stated that he immediately reported it to his employer, managing to drive his truck back to the yard. The patient stated that following this he was in fact unable to continue work, and immediately sought some chiropractic treatment.”
44 According to the history, Mr Tonkin’s back pain “was so severe that he could hardly walk. He was then advised to see his local doctor who prescribed analgesic medication.” He was put off work, referred for an MRI of his lumbar spine and underwent monthly chiropractic treatment. According to Mr O’Brien, “The patient in fact states that this gives him very temporary benefit.” Mr O’Brien said that Mr Tonkin continues to suffer back pain which is aggravated by any prolonged standing or sitting, bending, lifting and also cold weather. He stated he has difficulty “driving for more than 45 minutes and walking for more than 45 minutes, caused aggravation of pain”. Mr O’Brien recorded a continued usage of anti-inflammatories and analgesics. (PCB 50)
45 Mr O’Brien carried out measurements of range of motion, which he recorded, remarking:
“Passive straight leg raising was 60 degrees, accompanied by some back pain. In fact hip flexion was limited to 80 degrees by complaint of back pain. The patient was capable of active straight leg raising, although this resulted in quite marked shaking of both legs. Power, sensation and reflexes in the lower limbs were normal.”
According to Mr O’Brien:
“The current physical signs are subjective, with some painful restriction of lumbar movement without any evidence of accompanying signs to suggest a nerve root compromise or radiculopathy. An MRI, following the onset of pain in 2013, demonstrates some minor degenerative change at the L5/S1 disc.
I would currently describe this patient’s diagnosis as chronic non-specific low back pain and there are in fact no clear clinical or indeed radiological signs that define specific significant pathology to explain the ongoing pain generation.
The history would indicate that employment in 2013 was the significant contributing factor to this patient’s chronic back pain. Indeed historically it would appear the clinical condition is stable.” (PCB 51)
Mr O’Brien said:
“I would consider [Mr Tonkin] is not capable of a return to his pre-injury occupation as a truck driver and could not undertake manual-type duties.” (PCB 52)
46 Mr Tonkin’s solicitors also had him assessed by consultant psychiatrist, Dr Albert Kaplan, on 3 February 2015. The doctor provided a report to the solicitors dated 5 February 2015. Dr Kaplan took a history of Mr Tonkin’s departure from the defendant’s employ as follows:
“In August 2013 he was retrenched following an incident where a supervisor from another area, who was married to the daughter of the owner of the company, aggressively confronted him and tried to provoke him to fight after objecting to the manner in which Mr Tonkin had loaded his truck. Mr Tonkin was angry, however to avoid a physical confrontation he walked away and left work. The next day he was dismissed for walking off the job. Mr Tonkin stated he had also been unhappy working there as the company was paying him less than the amount which had been agreed upon when he took up the offer of the job.” (PCB 55)
47 According to Dr Kaplan’s history, Mr Tonkin’s departure from the employers, Mount Noorat Freighters, occurred “in October 2013 [when] he ceased work as a result of severe pain”. (Ibid) Dr Kaplan recorded that Mr Tonkin told him he had “no previous history of psychiatric illness or treatment”. (PCB 57) On examination, Dr Kaplan found Mr Tonkin “an overweight, strongly built, 37-year-old man who was neatly and casually attired. He appeared to be in some physical discomfort.” (PCB 59) Dr Kaplan described Mr Tonkin as ─
“…suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. His condition is directly related to his injury, his chronic pain, his inability to work, his other physical limitations, and his precarious finances resulting from his inability to work.” (PCB 60)
48 Next, Mr Tonkin’s solicitors had him assessed by Professor Richard Bittar, neurosurgeon, on 12 January 2017. The professor provided a report by way of a letter to the solicitors of the same date. The professor took a history of back pain going back to 2011. (PCB 64) According to the professor, the symptoms of the 2011 injury “responded favourably to chiropractic treatment but did not resolve. He was able to return to normal duties fulltime and his position was terminated in late 2011. He commenced with another employer in January 2012.” The professor said, on the history given to him, Mr Tonkin did not suffer “any significant low back or leg pain from around mid-2012 until he recommenced work with Paton’s Transport [with the defendant] in mid-2013. At that time, he began to experience back pain of a similar character and location to that experienced in 2011.” Professor Bittar said that Mr Tonkin ceased working for Paton’s Transport “after a dispute with a co-worker in August 2013”. The professor said, “His pain did not resolve”, it became quite severe in October 2013.” The professor noted complaints of constant lower back pain. “His back pain is worse with bending, twisting, lifting more than 10-15 kg, sitting for more than one hour and standing for more than approximately 30-45 minutes. Improves with recumbency.” (PCB 65)
49 The professor noted the result of the lumbosacral MRI of 22 October 2013, which he said “demonstrated an L5/S1 disc protrusion which was not causing any neural compression”. He diagnosed
“1. Aggravation of lumbar spondylosis
2. L5/S1 intervertebral disc prolapses.” (PCB 66)
According to the professor:
“the primary cause of his above mentioned conditions is his employment with Paton’s Transport. In particular, his workplace activities on September 1, 2011 and his activities from May 2013 until August 2013 remain significant contributing factors for his ongoing lower back related symptoms.”
50 The professor concluded:
“his employment with Paton’s Transport has materially contributed to his injuries and incapacity. In my opinion his employment with Mount Noorat Freighters has had either no or very little contribution to his current injuries. I would estimate that his employment with Paton’s Transport has contributed 95-100% to his current condition and incapacity.”
51 The professor regarded Mr Tonkin as “permanently incapacitated for pre-accident employment or other employment of a similar nature”. (PCB 67)
52 The professor provided a supplementary report by way of letter to Mr Tonkin’s solicitors dated 19 April 2017. It does not appear that he conducted a further examination, but he did view an MRI of the lumbar spine dated 20 February 2017. He referred to the shwannoma, referring to it as “most likely … benign”. He said that this tumour was “unrelated to his current presentation and is almost certainly asymptomatic”. (PCB 85) He said the most recent scan demonstrated ─
“degeneration of the L5/S1 intervertebral disc with a shallow non-compressive disc protrusion extending into the right S1 nerve root but not displacing it. There is also mild right-sided facet joint osteoarthritis.”
53 The further MRI “[did] not change the opinions expressed in [his] previous report”. (PCB 86)
54 The defendant had Mr Tonkin assessed by Dr Timothy J Entwisle, a consultant psychiatrist. He provided a report to the WorkCover insurer by way of letter dated 13 December 2013. Dr Entwisle stated, following examination of Mr Tonkin:
“His symptoms are those of frustration and some irritability. He is not undergoing any psychological or psychiatric treatment. His symptoms are not at a sufficient level to constitute a diagnosable mental illness. There is no current psychiatric condition.”
55 From a psychiatric point of view, he said that Mr Tonkin had a capacity for full-time pre-injury duties and hours with the defendant or at an alternative workplace. (DCB 34)
56 The defendant also had Mr Tonkin assessed for medico-legal purposes by Dr Geoffrey Graham, occupational physician, who reported to the WorkCover insurer by letter dated 1 May 2014, having seen and examined Mr Tonkin on that day. The doctor carried out an assessment of the ranges of motion in his low back. He diagnosed Mr Tonkin as suffering from “lower lumbar disc bulge [suggestive of a] central canal stenosis”. This condition, he said, was “caused or at least aggravated by lengthy times sitting and bouncing whilst driving a truck”. He believed that the injury was “a recurrence of a previous injury”. (DCB 38) Asked about the duration of incapacity, the doctor said, “It is not possible to predict a time for discogenic problems to settle.” (DCB 39) Dr Graham, according to the heading of his report, was assessing Mr Tonkin with respect to a compensation claim against Mount Noorat Freighters. (DCB 35)
57 A further medico-legal assessment relative to the claim against Mount Noorat Freighters occurred on 3 February 2015 at the rooms of Mr Jonathan Hooper. Mr Hooper said:
“This man has evidence of low back discomfort and left-sided leg discomfort with limited range of motion in his back and some degree of minor discomfort in his legs, with no neurological signs.
Work with Leo Force [the defendant] and Noorat have exacerbated the problems in his back. There has been no specific incident to account for his back problems, apart from the incident of September 2011, when he was lifting crates.
His symptoms are in keeping with the pathology that has been demonstrated both radiologically and on examination and it can be argued that his employment with Noorat has been a factor in the exacerbation of his back discomfort, as has indeed his employment with Leo Force.” (DCB 45)
Mr Hooper said that Mr Tonkin was fit for light work “… that does not involve lifting, bending or driving big trucks”. (DCB 46)
58 A year later, Mr Tonkin was assessed again relative to the compensation claim against Mount Noorat Freighters by Dr David S Elder, who reported on an examination which occurred in his rooms on 10 February 2016 in a letter to the insurer of the same date. He referred to the date of injury as “11 October 2013”. (DCB 47) Dr Elder concluded:
“The worker has mechanical back pain with no clinical evidence of radiculopathy. This was an aggravation of a previous injury. We do have to apportion.” (DCB 49-50)
The doctor had taken a history of back pain going back to 2011. (DCB 47)
59 Dr Murray Grave, a musculoskeletal physician, carrying on practice at Warrnambool, saw Mr Tonkin on referral from his general practitioner, Dr Elhalawani, on 6 December 2013 and reported to her in a letter of the same date. On examination, Dr Grave recorded the clinical examination demonstrated that ─
“Jason had notable pain behaviours. He would describe episodes where he would get the jerks like he had Parkinson’s disease and this would occur with spasms of pain.
On examination of his movement he has guarded and reluctant to do any significant movement.
…
Once again all examination elements demonstrated pain behaviours and significant central sensitisation was evident.
Segmental palpation of the lumbar spine produced marked pain behaviour particularly palpating over the spinous process and musculature.
Thus there is a central protrusion at L5/S1 which may be associated with a component of this pain however there is also quite a significant central sensitisation of chronic pain with marked pain behaviours present.” (DCB 81)
Dr Grave urged a minimisation of analgesics. (DCB 82)
60 Mr Fehring and Mr Pierorazio also put into evidence, and relied upon, the determination of the WorkCover insurer, QBE, to accept liability for a soft tissue injury to the lower back as of “24 June 2013”, relative to his employment with Leo Force Pty Ltd (PCB 105-110) and a letter accepting a claim for impairment benefits relative to the same injury in the defendant’s employ. (PCB 111-119)
Conclusions
61 Mr Fehring and Mr Pierorazio submitted that the acceptance of liability by the WorkCover insurer for impairment and medical and like expenses constituted an admission on behalf of the defendant that a soft tissue injury to the plaintiff had occurred during the course of his employment with the defendant. They conceded that this acceptance of liability was by no means conclusive, so as to preclude the defendant from relying on any causal arguments in this proceeding. I accept that submission.
62 The evidence, including the acceptance of liability for non-fault benefits and the various medical opinions, together with the evidence of Mr Tonkin himself, establishes that he has suffered an injury. I put to one side for the moment issues of causation, to which I will return hereafter.
63 An initial question in judging whether the injury suffered by Mr Tonkin can, for the purposes of s134AB of the Accident Compensation Act be regarded as “serious”, is the extent to which, if at all, the injury is organically caused. The effect of s134AB(38)(h) quoted above is that, in considering a claim based on paragraph (a) of the definition of serious injury, that is, a physical injury, one must “strip out” injury consequences which are non-organically driven. (Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46 [1]-[10] per Maxwell P)
64 In the clinical notes from Warrnambool Medical Clinic, there is a record of a consultation between Mr Tonkin and Dr Elhalawani of 5 minutes and 25 seconds duration on 6 December 2013, where the doctor records:
“Seen Murray Grave today. Told him it is all in his head!! Yes has a disc bulge but shouldn’t give him that much grief. Advised him no need for pain relief and just physio …” (DCB 108-109)
65 If that view of affairs is accepted, based on the opinion of Dr Grave, then all of the consequences of which Mr Tonkin complains would be excluded from consideration as to whether he has a serious injury within paragraph (a) of the definition and this application would necessarily fail; but are matters as straightforward as this?
66 Dr Elhalawani did not, it would seem, uncritically accept Dr Grave’s opinion. Her note continued:
“Talked to Jason. I’ll keep my plan as it is. I believe Jason is genuine in his pain and is keen to get back to work.” (Ibid, 109)
67 Dr Grave’s references to pain behaviour and so forth are the equivalent of references to “functional overlay” and “pain syndromes” in the judgment of Maxwell P in Stamboulakis’ case.
68 It may be inferred that Dr Elhalawani was not entirely persuaded to Dr Grave’s opinion. Merely to say that Mr Tonkin was genuinely in pain would not exclude the possibility that that pain was solely the result of a “pain syndrome” but of “pain behaviour” or “functional overlay”.
69 Nevertheless, the doctor said she would maintain her previous plan, which seems to have been premised upon Mr Tonkin’s pain being primarily or, at the very least, partly organically driven.
70 Again, Mr John O’Brien, surgeon, who assessed by Mr Tonkin for medico-legal purposes, stated “The current physical signs are subjective”. He referred to “non-specific low back pain [where] there are in fact no clear clinical indeed radiological signs that define specific significant pathology and explain the ongoing pain generation.” (PCB 51)
71 He clearly implied that a pain syndrome or a non-organically driven pain, at least in part, explained Mr Tonkin’s presentation. Mr O’Brien also referred to “quite marked shaking of both legs” in the case of active straight leg raising. I did not have the advantage of viva voce evidence from Mr O’Brien, but I take the active straight leg raising to be a process whereby the surgeon examiner tests the ability to raise the leg straight by moving it himself. Implicitly, the reference to marked shaking of both legs seemed to identify a phenomenon which would not have an organic cause.
72 Despite all of this, there is clear objective evidence of a disc bulge at L5-S1 tending to the right side. MRI scans do not identify neural impingement nor central canal stenosis. Nevertheless, Professor Bittar diagnosed intervertebral disc prolapse. (PCB 66)
73 Dr Graham, in his report of 1 May 2014, made a finding of central canal stenosis and he had available to him the 2013 MRI scan. It is included at page 7 of his report. (DCB 39, 41)
74 Mr Hooper referred to disc degeneration and a central disc protrusion at L5-S1, which he said had been rendered symptomatic in 2011 and aggravated by an incident in 2012 or 2013. He seemed to accept that there were organic consequences of an L5-S1 pathology. (DCB 45)
75 Dr Elder, insofar as he referred to “mechanical back pain”, appeared to accept there being an organic cause for this pain. Plainly, this is the view taken by Professor Bittar, upon whom Mr Fehring and Mr Pierorazio placed primary reliance.
76 Even Mr Grave, who was most downright in attributing the pain to non-organic causes, conceded that the central protrusion at L5-S1 “may be associated with a component of this pain”. (DCB 81)
77 During the hearing, both while giving evidence and while observing at the back of the court, Mr Tonkin regularly alternated his posture from sitting to standing. I did not believe this was a piece of histrionics. It supported the reality of his pain. (cfPhelan v Transport Accident Commission [2013] VSCA 306 [52] – [56])
78 In the circumstances, I proceed upon the footing that Mr Tonkin’s pain has a predominantly organic core, allowing for the fact that it may be overlaid with certain functional features.
79 I turn now to the issue of causation.
80 Mr Middleton and Ms Manova submitted on behalf of the defendant that it was necessary to reach a causal attribution as to any injury and its consequences which Mr Tonkin may have sustained in the period 2013-14. They submitted that if, contrary to their primary submission, there were an injury, then it could be and should be attributed to an incident or incidents during Mr Tonkin’s employment by Mt Noorat Freighters Pty Ltd following his termination from the defendant’s employ, which was the subject of a separate WorkCover claim. Some of the medical reports upon which they relied were obtained for the purposes of determining that claim. They said that the approach which necessarily should be adopted was dictated by the decision of the Court of Appeal in AG Staff Pty Ltd v Filipowicz [2012] VSCA 60, where Kyrou AJA (as he then was) with whom Mandie and Bongiorno JJA concurred, said that where a worker suffered two separate compensable injuries, the following procedure needed to be adopted.
“First, his Honour should have identified each injury.
Secondly, his Honour should have delineated the impairment consequences of each injury.
Thirdly, in the case of the AG injury, which, although an aggravation of the Arnold injury, was a separate injury, his Honour should have determined whether the injury qualified as a serious injury under s134AB(37) of the Act as amplified by s134AB(38).
Fourthly, in determining whether Mr Filipowicz had discharged the onus of establishing that the AG injury was a serious injury, his Honour should have made a comparison between Mr Filipowicz’s condition before the AG injury and his condition after the AG injury, and should then have made an assessment of the additional impairment.
Fifthly, as the two injuries arose from separate incidents, they could not be accumulated. The AG injury had to satisfy the requirements of a ‘serious injury’ in its own right rather than in combination with the Arnold injury.”
81 I accept the defendant’s submission on that point.
82 Further, insofar as anything which occurred during Mr Tonkin’s first period of employment may have contributed to his present injury, this must be excluded from consideration or apportionment. The proceeding, by the terms of the Originating Motion, relies solely upon events occurring during Mr Tonkin’s second period of employment by the defendant.
83 Mr Middleton and Ms Manova observed that in making his causal attribution, Professor Bittar failed to distinguish between the two periods of employment with the defendant.
84 It is tempting to ascribe Mr Tonkin’s injury to his period of employment with Mt Noorat Freighters. In the history that he gave, for instance, to Mr O’Brien, there is a distinct event identified representing the onset of pain rather than the more nebulous attribution to an ongoing process in a period over a number of weeks or months, as would be the case in making a causal attribution to the second period of employment with the defendant.
85 There are, however, factors which favour an attribution to the period of employment with the defendant. First, the work which Mr Tonkin was doing was inherently stressful upon his spine. He referred to heaving heavy tyres on top of palletised merchandise and loading and unloading the B-double semi-trailer which he drove for the defendant. Even where forklifts were used, there was still heavy work in positioning them to be unloaded by forklift. (T76, L10-13)
86 In his work for Mt Noorat Freighters, Mr Tonkin was driving a “tipper”. (T34, L10-12) Operating a tip truck does not entail the driver engaging in any heavy lifting. (T22, L7-10) It follows that the work for Mt Noorat Freighters was inherently unlikely to be causative of a back injury in comparison to the work for the defendant. For what it is worth, Mr Tonkin appears to have proceeded upon the same basis. No WorkCover claim was lodged against Mt Noorat Freighters until several months after he ceased employment with that company. The claim form, from which I quote above, does not speak of any heavy lifting but merely of vibration deriving from the truck “bouncing”. The claim against Mt Noorat Freighters seems to have been lodged only in response to a request by a WorkCover insurer. (PCB 107)
87 Dr Elder, whose report was relied on by the defendant, was, so far as the claim against Mt Noorat Freighters is concerned, minded to regard the impairment which he found as pre-existing, leaving no impairment to be attributed to the term of employment with Mt Noorat Freighters. (DCB 50)
88 For these reasons, but with some hesitation, I therefore attribute the organic low back injury which I have found Mr Tonkin to have suffered to the second term of employment with the defendant.
89 Mr Middleton and Ms Manova contending against such a finding, said that I should proceed on the basis that back pain played no part in the termination of that second period of employment with the defendant. This matter was the subject of extended cross-examination and re-examination.
90 I have quoted above from the histories recorded by various doctors, all of which seem to attribute the termination of employment to a conflict with a “co-worker”. The passage in Mr Middleton’s cross-examination of Mr Tonkin begins at T27, L25 and proceeds to T29, L3. I set out the passage below:
“Mr Tonkin, we all know you said in your affidavit you stopped that job because you were terminated because of a dispute with another colleague, another work colleague.
HIS HONOUR: Paragraph or page?
MR MIDDLETON: Page 12.
HIS HONOUR: This is plaintiff's 12, I assume?
MR MIDDLETON: Paragraph 15, "After I was terminated" - no, I haven't quite picked it up. It is a very long affidavit, Your Honour. It is hard to pick up everything.
HIS HONOUR: All right, yes, I know the feeling.
MR MIDDLETON: I know it's in some medical reports. I am going to ask the witness, were you terminated because of a dispute that you had with a colleague?‑‑‑Yes.
And again my suggestion to you is that you would, as of August 2013 you would have remained in that employ if it hadn't been for the fact that you were terminated? What is the answer?‑‑‑I don't agree with it.
HIS HONOUR: Tell us why you disagree?‑‑‑'Cause I had a disagreement with the person that was involved because I could not continue on doing with what I was doing, and I was in pain and I basically told him to jam it up his arse.
Yes, and so can you tell us the nature of the disagreement?‑‑‑With loading the general freight by hand.
Was the colleague someone who was superior or supervisor to you or ‑ ‑ ‑?‑‑‑He was classed as a supervisor, yes.
Yes, and he was wanting you to hand load and you didn't want to hand load?‑‑‑Correct.
MR MIDDLETON: Sorry, I just missed that. Was that - Your Honour's question?
HIS HONOUR: Yes?
MR MIDDLETON: I just missed it.
HIS HONOUR: My question was, "This supervisor wanted you to hand load and you didn't", and the witness said, "Yes".
MR MIDDLETON: I am reading from p.65 of the plaintiff's court book in a report by Dr Bittar or Mr Bittar who says this, in the sixth paragraph: "After a dispute with a co‑worker in August 2013, he ceased work with Paton's Transport"?‑‑‑Correct.
Who do you say that dispute was with?‑‑‑One of the gentleman that was a supervisor.”
91 There then followed an objection to consideration of an affidavit. The cross-examination on this point resumed at T30, L13 and concluded at T31, L2. I set out this further passage below:
“MR MIDDLETON: (To witness) Did you get into a dispute with a person at the depot the day before you were terminated?‑‑‑Yes.
Was that dispute concerning the positioning of a pallet in the back of your truck?‑‑‑And general freight, yes.
Were you given some instructions about that which you didn't agree with?‑‑‑He wanted to move it with - and I wasn't loading the truck.
And you had an argument?‑‑‑Yes.
And you walked out the next day?‑‑‑When he wanted to fight me, yes. I walked out that day.
Walked out that day and never came back?‑‑‑That's correct. I went back the next day and saw Doug.
HIS HONOUR: You went back the next day and?‑‑‑To see the boss.
Right?‑‑‑'Cause I didn't want a fight in the workplace.
MR MIDDLETON: And he took the side of the other bloke and terminated you, did he?‑‑‑Correct.
So you didn't leave because of your back, did you?‑‑‑I couldn't do the job. That's ‑ ‑ ‑
My question again to you is, you did not leave because of your back?‑‑‑No.”
92 In re-examination, Mr Fehring turned to this issue. This passage appears at T75, L1 to T76, L20. I set out the passage below:
“What were the matters that you were raising with your supervisor that led to the use of very strong language? What were you raising with him?‑‑‑That I was uncomfortable in doing the heavy lifting, because I couldn't do it, and also, a couple of pallets, and he basically told me that if I didn't want to do it, to – excuse my language, but to fuck off.
HIS HONOUR: You said a couple of pallets. What was the issue relative to the pallets?‑‑‑Pallets sitting up on the back of a cage, that were locked in.
All right, and so what were you being expected to do with those?‑‑‑He wanted to remove them from there and put them down lower when the floor was full.
All right. I see. Insofar as you disagreed with that, was that because it would have imposed a physical burden on you, or was it for some other reason?‑‑‑No, it was just that there was no room on the floor.
Yes?‑‑‑And where they were sitting on top of the cages that were in the back, they were locked in so they weren't going to move anyway.
So it was, if you like, a technical dispute?‑‑‑Yes.
He was suggesting that they weren't safe, and you were saying that they were?‑‑‑Yes.
MR FEHRING: You said there was – you raised heavy lifting?
‑‑‑Yes.
What was that about?‑‑‑The tyres and all the general freight that was loose, that got thrown on there. We had to move it all by hand.
When you say general freight – you said that yesterday as well. What sort of items would you describe as general freight, that had to be loaded manually?‑‑‑General freight, you've got fridges, which – they're in a box. They get lifted up on a forklift onto a pallet. You've got to grab them by your hands and slide them onto the truck, into a position on the trailer, and the same when you're removing them from the truck, because they've always got to be stood upright. They can't fall over. You've got boxes that get lifted up and sat on the ground, on the floor of the truck, with car diffs in them.
HIS HONOUR: With?‑‑‑Car differentials.
All right, yes?‑‑‑And where they are on the trailer, once the trailer is getting unloaded, you've actually got to get up there and push them across to the side, so the forklift can then pick them up.
MR FEHRING: Any idea what they weigh?‑‑‑No idea.
Anything else?‑‑‑You've got metal bars, depending on if it's – like, for a metal fabrication place. They could be set up on top, over the top of the pallets. You've got to lift all of those off to the side, so that the fork can – or get underneath and lift them up, so the forklift can come under and pick them up and take them off out of the truck.”
93 In the circumstances, I do not believe that in his viva voce evidence Mr Tonkin unequivocally admitted that he terminated his employment with the defendant, or rather the defendant terminated his employment, by reasons solely of personal conflict and not because of any heavy lifting.
94 On the other hand, the account which was given viva voce does not generally appear to have been given to medical examiners, and one is left troubled as to whether it constitutes a recent invention rather than a true account of what actually happened.
95 Despite these misgivings, I conclude, with some hesitation, that the account of the conflict which attributes it both to a particular dispute about the location of pallets and the general complaint about heavy lifting represents a more plausible interpretation of events and I adopt it accordingly.
96 This finding, albeit one reached with some hesitation, is supportive of the view which attributes Mr Tonkin’s injury to the second period of employment with the defendant.
97 Having accepted that Mr Tonkin suffered a low back injury during his second period of employment with the defendant, the consequences of which are primarily organically driven, I now turn to consider whether those consequences merit a finding that the injury was “serious”.
98 Mr Middleton and Ms Manova referred to and relied on the decision of the Court of Appeal in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 where, at paragraph 24, Chernov JA held that the ability to return even to alternative employment contraindicated a finding of serious injury based on pain and suffering consequences. His Honour’s statement, however, entailed an important proviso “unless there was some other evidence that showed that he [the worker] experienced significant pain or that he otherwise significantly suffered physically from the injury.”
99 Mr Fehring and Mr Pierorazio said that his Honour’s dictum had been explained or confined in later decisions. Nevertheless, accepting it to the hilt, it would not exclude success for Mr Tonkin here in a finding of serious injury based on pain and suffering consequences. Mr Tonkin provided ample evidence of significant pain so as to invoke the proviso stated by his Honour.
100 The evidence which Mr Tonkin gave, and which is summarised above, as to the pain which he suffered and the restrictions which have been imposed upon him in employment are eloquent. In addition, he has given similar accounts to examiners. These matters have affected his mobility. He has complained as to effects on cognitive functioning in one of his affidavits, but a diagnosis or possible diagnosis is sleep apnoea, and they suggest that any cognitive issues are not related to his back pain. He has described limitations on the performance of household and family duties and participation in recreational activities. He has complained about the effect upon his sexual life and enjoyment of life generally. The extent and persistence of the pain and the consequences to which I have just made general reference, mean that in comparison with other cases in the range of possible impairments, the consequences may fairly be described as more than significant or marked and being at least very considerable, so as to meet the statutory standard for the finding of a serious injury.
101 Mr Tonkin should have leave to commence a damages claim based upon the pain and suffering consequences of his injury.
102 Insofar as Mr Tonkin seeks leave to bring a damages claim with respect to pecuniary loss damages, he must demonstrate a loss of earning capacity as at the date of decision and have a loss of earning capacity of 40 per cent or more. (Section 134AB(38)(e)(ii))
103 Mr Tonkin’s tax returns are summarised at PCB 103-104. For the period 1 July 2016 to 10 May 2017, a period of some 44 weeks, it was said that total fares were generated by the taxi which Mr Tonkin drives for five shifts a week in the sum of $46,551.60. The arrangement which he has with the owner of the taxi has him retaining 55 per cent of the takings. The owner meets the running expenses of the taxi from the 45 per cent which the owner retains. Mr Fehring submits that this represents an average earnings of some $582 per week. (T123, L30)
104 Based upon a letter from Mt Noorat Freighters, undated, at PCB 121, Mr Fehring submitted that the plaintiff might, if still employed as a truck driver, have been earning $1,200 to $1,300 per week. Sixty per cent of $1,200 per week, he said, was $720 (T124, L8-18), and if the $582 per week were the proper calculation of his current earning capacity, the necessary 40 per cent reduction would have been demonstrated.
105 Mr Middleton and Ms Manova submitted that it was not proper to make the calculation by reference to the 55 per cent of the takings to which Mr Tonkin was entitled. They referred to a decision of the Court of Appeal in The Herald & Weekly Times Limited v Jessop [2014] VSCA 292. In Jessop’s case, the challenge to the determination of the trial judge was to his finding that the plaintiff’s pre-accident earning capacity should be calculated by reference to 37 hours per week. The appellant employer submitted that her pre-accident earning capacity should be calculated by a reference to what she actually earned in the 2009 financial year “rounded up to $35,000”. ([2014] VSCA 292 [62])
106 The court, Neave and Kyrou JJA and Ginnane AJA, said at [65] in rejecting this argument:
“The annual period that most fairly reflects Ms Jessop’s earning capacity is the period of 12 months prior to the injury and the scenario that most fairly reflects her earning capacity is the gross annual income that she would have been capable of earning from personal exertion if the injury had not occurred, rather than the gross annual income that she in fact earned prior to the injury.”
107 As I understood the submission on behalf of the defendant, in this proceeding it was that since Mr Tonkin might have purchased a taxi plate, he would then have been entitled to retain 100 per cent of the takings demanded by the taxi which he is driving and no loss of 40 per cent of earning capacity would be demonstrated.
108 I was also referred to a Judgment of his Honour Judge Coish of this Court in Guthrie v Campion Education (Aust) Pty Ltd [2009] VCC 1141. Section 134AB(38)(f) provides:
“for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i) the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—
(A) earning, whether in suitable employment or not; or
(B) capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii) the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;”
109 Income from personal exertion is, in accordance with s134AB(38)(a), is to be defined in the same manner that it appears in s6(2) of the Transport Accident Act 1986:
“income from personal exertion in relation to a person means—
(a) the amount that is the income of that person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered; and
(b) the proceeds of any business carried on by that person either alone or in partnership with any other person; and
(c) any amount received as bounty or subsidy in carrying on a business; and
(d) the income from any property where that income forms part of the emoluments of any office or employment of profit held by that person; and
(e) any profit arising from the sale by that person of any property acquired by the person for the purpose of profit-making by sale or from the carrying on or carrying out of any profit-making undertaking or scheme—
but does not include—
(f) interest, unless that person's principal business consists of the lending of money, or unless the interest is received in respect of a debt due to that person for goods supplied or services rendered by the person in the course of the person's business; or
(g) rents or dividends; or
(h) any employer superannuation contribution.”
110 His Honour, in Guthrie’s case, adopted an interpretation of that definition of income from personal exertion stated by Deputy President Galvin in the Victorian Civil & Administrative Tribunal in Martinson v Transport Accident Commission [1998] VCAT 142, which equates the proceeds of a business with its pre-tax profit for the year after allowing for expenses which reduce gross profit to taxable income [or as the Income Tax Assessment Act 1997 would have it] reduces assessable income to the level of taxable income]. Despite being pressed with other interpretations, his Honour Judge Coish adopted the same approach as Deputy President Galvin. ([2009] VCC 0041 [42])
111 Mr Fehring submitted that, in any event, it was unnecessary to proceed to so elaborate an enquiry because his client was not in the business of running a taxi. He submitted that Mr Tonkin’s tax return merely showed the income which he derived representing the 55 per cent of the taxi’s takings (presumably as emanating from some sort of contract for services as an independent contractor with the taxi owner rather than showing the entire receipts that the taxi has as assessable income with expenses deducted to reach a taxable income).
112 Whilst Mr Tonkin’s tax summary was in evidence, the tax returns were not. I cannot therefore judge by reference to those original documents whether Mr Fehring’s submission on this point is correct. Nevertheless, I did not understand it to be disputed by Mr Middleton and Ms Manova.
113 It is not obvious to me that there is a proper analogy between this case and Jessop’s case. Whilst following the deregulation of the taxi industry, taxi plates, or the entitlements to operate a taxi, are no doubt much cheaper than they once were, it is not to be supposed necessarily that Mr Tonkin has the resources to acquire a taxi. He said he understood that the cost was approximately $20,000. This was the figure posited by Mr Middleton in cross-examination. (T65, L14)
114 In the circumstances, I believe the proper calculation is to allow for the 55 per cent of takings, or rather the amount equal to 55 per cent of takings, which it appears Mr Tonkin actually derives as representing his earning capacity. As previously noted, this represents more than 60 per cent of what he could earn as a truck driver in his pre-accident duties and, accordingly, the benchmark to establish an entitlement for pecuniary loss damages has been made out.
115 Mr Fehring submitted that a favourable finding on the pecuniary damages front necessarily required a favourable outcome on the application for a damages claim for pain and suffering. He referred to Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170. Given that I have reached the same result by different route, it is unnecessary for me to express a view on the correctness of this contention.
116 Accordingly, leave is granted to Mr Tonkin to bring a damages claim against the defendant for both pain and suffering damages and pecuniary loss damages.
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