Van Praag v Victorian WorkCover Authority
[2020] VCC 1052
•10 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-05312
| MATTHEW VAN PRAAG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 June 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 10 August 2020 | |
CASE MAY BE CITED AS: | Van Praag v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1052 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – lumbar spine – leave sought for pain and suffering and pecuniary loss
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Johns v Oaktech Pty Ltd [2020] VSCA 10; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109; Woolworths Ltd v Warfe [2013] VSCA 22; De Bono v Victorian WorkCover Authority [2019] VSCA 85; Yirga-Denbu v Victorian Workcover Authority [2018] VSCA 35
Judgment:Leave granted to the plaintiff to commence a proceeding for pain and suffering damages in respect to injury to the lumbar spine arising out of or in the course of his employment on 15 July 2016. Leave to commence a proceeding for pecuniary loss damages refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Blanden QC with Mr P A Czarnota | Henry Carus and Associates |
| For the Defendant | Ms G-J Cooper | Hall & Wilcox |
HIS HONOUR:
1 On 15 July 2016, Mr Van Praag injured his lower back while transferring a patient in the course of his employment as a nurse at the West Gippsland Hospital (“the incident”).
2 Mr Van Praag was born in 1975. He has a varied work history. After completing his secondary schooling, he worked for various employers and in self-employment, including employment/self‑employment in information technology, quality assurance and IT sales and service. At different times, he has lived in New South Wales and in Victoria.
3 By 2012, Mr Van Praag had relocated to Victoria. He had completed a Certificate III in Aged Care at TAFE in New South Wales and had worked as a personal care attendant. After relocating to Victoria in 2012, he commenced further training in nursing and continued to work as a personal care attendant. In early 2015, upon completing his nursing studies, he was accepted into a graduate nurse program with the West Gippsland Healthcare Group and thereafter, was employed by that entity at a hospital in Warragul as a registered nurse.
4 A very brief chronology subsequent to the incident is that Mr Van Praag has had a variety of conservative treatments for ongoing lower back pain. For periods of time, he returned to employment with the West Gippsland Healthcare Group and to concurrent nursing employment with Monash Health. He resigned from his employment at the West Gippsland Healthcare Group by letter dated 22 September 2017.[1] He continued in employment for Monash Health until mid August 2019.[2] He has not returned to nursing since then, but instead has engaged in self-employment in the business known as MW Laser, which is a business operated from his home garage. He uses a laser machine to make and sell laser-cut products.[3]
[1]Court Book (“CB”) 13
[2]CB 16
[3]Plaintiff’s affidavit dated 26 June 2020, CB 16, paragraph [13]
5 Mr Van Praag claims to have ongoing low back pain with incapacity for work as a nurse. He claims that his current self-employment is the limit of his residual work and earning capacity and that his earnings for the last financial year are sufficient evidence of his permanent loss of earning capacity.
The application
6 This is a “serious injury” application in respect to a workplace injury. The principles in respect to such an application are well known. Mr Van Praag alleges that he has suffered a “permanent serious impairment or loss of a body function”, namely injury to the lumbar spine. He seeks leave to commence a common law proceeding for both pain and suffering and pecuniary loss damages. The main issues to be decided in this application are:
· the credit of Mr Van Praag;
· the nature and extent of any back injury suffered by Mr Van Praag;
· whether the impairment consequences of the claimed back injury are such so as to meet the statutory test of “very considerable”;
· has he suffered a loss of earning capacity of 40 per centum or more, measured as required by s325(f) of the Workplace Injury Rehabilitation and Compensation Act 2013; and
· will he continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more?
Was Mr Van Praag a credible witness?
7 As has been said many times before, in cases of the present kind, the credit of the applicant will often be critically important.[4]
[4]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]; Siddel-Whipp v Transport Accident Commission [2020] VSCA 109 at paragraph [87]
8 The defendant submits that the credibility of Mr Van Praag has been impugned in a number of respects,[5] namely:
(i)the inconsistency of the YouTube videos tendered by the defendant[6] with how he presents to doctors and what he swears in his affidavit;
(ii)a Jones v Dunkel[7] inference regarding the failure to provide an affidavit from his wife; and
(iii)the contents of the resignation letter.
[5]Transcript (“T”) 93, Line/s (“L”) 1-3
[6]Exhibits D1, D2 and D3
[7][1959] HCA 8; (1959) 101 CLR 298
9 Dealing with the credit issues in the order raised by the defendant, the YouTube videos demonstrate Mr Van Praag engaging in what I consider to be light physical activity. The videos demonstrate him bending without any obvious restriction and to engage in activity including cutting pieces of aluminium and the like. They do not depict him engaging in heavy activity. They were taken over a number of days. Nothing shown in the videos is inconsistent with the plaintiff’s description of symptoms and his residual level of activity. I find that the videos do not impugn his credit.
10 Turning next to the failure to provide an affidavit from his wife, there is merit in the defendant’s submission that the lack of such lay evidence is relevant when it comes to corroborating the evidence of Mr Van Praag. However, having observed Mr Van Praag give evidence, my impression is he was a reliable witness. Whilst it was not spelled out in great detail in submission, other than I should draw an inference that his wife’s evidence “would not have assisted the plaintiff in this case”,[8] I understand that submission to mean that I should infer that her evidence would not have assisted her husband in respect to issues such as his cessation of employment as a nurse and in respect to his claimed consequences from compensable injury.
[8]T96, L26
11 In most situations it would be reasonable to assume that a person’s spouse would be supportive of them and capable in a serious injury application of providing such an affidavit. But it is relevant that in a serious injury application a plaintiff does not, commonly, call the same amount and array of such witnesses as might be expected on a common law trial.[9] Therefore, I accept there is a lack of corroborating evidence from his wife, but I do not accept that any inference I should draw from that omission is such that it impugns Mr Van Praag’s credit, in circumstances where I find him to be a credible witness. It is an evidentiary omission but not a successful credit point.
[9]Woolworths Ltd v Warfe [2013] VSCA 22 paragraph [147]
12 The final credit issue raised on behalf of the defendant is the contents of the resignation letter.[10] That letter is exhibited to an affidavit from Mr Todd Griffiths, a manager at West Gippsland Health Care Group, to whom Mr Van Praag reported. In his affidavit,[11] Mr Griffiths states that:
“The plaintiff worked periods of modified duties but returned to pre-injury duties in June 2017 and continued working pre‑injury duties without complaint until his resignation.”
[10]CB 13
[11]CB 10
13 The defendant concedes Mr Griffiths’ evidence that the plaintiff was working when he resigned is wrong.[12] The resignation letter commences with Mr Van Praag stating that he wishes to thank Mr Griffiths for “your support in the situation of my health and wellbeing over the past months”. The letter goes on to say:
“Due to changes in the circumstances at home, I need to resign from my permanent employment at West Gippsland Health Care Group. This week my wife received her final offer employment with Victoria Police and starts at the Police Academy on 23 October 2017. As a result I will not be able to return to permanent work due to the need to look after the housework and our five children.”
[12]T98, L23
14 The resignation letter then further states:
“I write to resign from my permanent employment due to this change in family circumstances and not to (sic) due to my previous or current health concerns.”
15 In the resignation letter, Mr Van Praag acknowledges ongoing current health concerns but says that his resignation is as a consequence of a change in “circumstances at home”. Mr Van Praag was cross-examined about the reason given in his resignation letter. He gave evidence that the reason in the letter was “not the real reason for my resignation”.[13] He gave evidence that he:
“… didn’t want to resign my full time position, I was suffering – I was pretty much at the time suffering severe back pains and couldn’t return to my full time duties … but I still wanted to have the option open of casual employment in the future.”[14]
[13]T45, L16
[14]T45, L21-27
16 Mr Van Praag accepted that it would be “very difficult for him and his wife to both work full time with five children at home”. But, of course, that does not rule out full-time employment for him.
17 Obviously the reason given in the letter for resignation is a change in family circumstances, but ultimately I am not persuaded this is a credit issue against Mr Van Praag. As mentioned, he was already off work when he resigned and so the reason given for resignation is less relevant if he was already unable to continue his pre-injury work as a nurse. I discuss his capacity to work as a nurse later on in these reasons when considering the medical evidence, but for now I indicate that I accept that he currently lacks the physical capacity to work as a nurse.
18 It is relevant that Mr Van Praag trained and obtained qualification as a nurse at a more mature age. There is force in the submission made on his behalf by Mr Blanden QC that the notion that he would voluntarily give up a job that he had clearly put a lot of time and effort into obtaining, even in the context of pre‑existing health problems, is illogical and inconsistent when one looks at the whole of the evidence. The resignation letter does not advance his case but neither does it impact much on his credit, even more so when the affidavit evidence from Mr Griffiths is inaccurate on an important issue as to whether Mr Van Praag was working as a nurse at the time he resigned.
19 To summarise the issue of credit, my overall impression of Mr Van Praag in the “witness box” was a truthful witness giving a fair account of events in his life that had occurred before and after the incident. There were some inconsistencies from medical histories, but I do not consider them as particularly significant when considered as part of the whole of the evidence. He was responsive in cross-examination and made appropriate concessions, particularly when cross-examined on clinical records. I find that I am able to rely on his evidence and, in particular, as an example, his evidence regarding the period of time over which the YouTube videos were filmed and the activities depicted in those videos. I accept that, in respect to credit, the videos are really neither here nor there.[15] I do not accept that the credit issues raised by the defendant impugn Mr Van Praag’s credit.
[15]T117, L1
What is the nature and extent of any back injury suffered by Mr Van Praag?
20 Before looking at what the impairment consequences, if any, are from the alleged back injury, it is necessary to first analyse the medical evidence to determine the nature and extent of the back injury alleged to have been suffered by Mr Van Praag. This is part of the task I must undertake to determine this application but also arises because ultimately, the defendant submitted that while it accepts that the plaintiff suffered a lower back injury from the incident, it does not accept that the injury continues to be ongoing.[16]
[16]T107, L9
21 There is no dispute that Mr Van Praag had a pre‑existing medical condition that from time to time produced diffuse pain requiring treatment, including referral to a consultant rheumatologist, Dr Boers, in September 2013.[17] Dr Boers reviewed Mr Van Praag on 20 November 2013. By that stage, he had been commenced on Cymbalta for “depression”. Dr Boers then arranged for an MRI scan of the lumbar spine, said to be so the doctor could be sure he was not missing an inflammatory process. The MRI scan was performed on 20 January 2014[18] before the final review with Dr Boers on 31 January 2014.[19] Dr Boers was then of the opinion that the MRI revealed minor disc bulges, but that the long-term prognosis was good. He recommended that Mr Van Praag continue core strengthening and physiotherapy and wind down the Cymbalta.
[17]CB 70
[18]CB 51
[19]CB 385
22 The tendered medical records confirm that from time to time, Mr Van Praag attended general practitioners for symptoms consistent with fibromyalgia or a chronic pain syndrome.[20] There is fleeting reference in medical records to back pain but nothing that would indicate an injury, as such, to his spine. He was able to work without restriction in his employment with the West Gippsland Healthcare Group notwithstanding the pre-existing pains/condition. A flare-up of the pre-existing condition in March 2017 saw specialist referrals to Dr Rajendran, a neurologist, and Dr Engel, a rheumatologist. Dr Rajendran reported back to the treating general practitioner by letter dated 16 March 2017, in which he noted that a neurological examination was “completely normal”.[21] Dr Rajendran recorded the findings of an MRI scan of the plaintiff’s lumbar spine as “normal except for a mild prolapse of a lumber disc”.[22] Dr Rajendran does not appear to have considered the MRI findings as clinically significant or relevant in any way to Mr Van Praag’s then widespread complaints of diffuse pain as he opined that his symptoms were “more in keeping with a complex pain syndrome such as seen in fibromyalgia”.[23] He stated that the plaintiff would benefit by going back to see a rheumatologist. Mr Van Praag did, in fact, return at that time to see a rheumatologist. In a letter dated 1 June 2017 addressed to the then general practitioner,[24] Dr Engel noted a longstanding history of diffuse pain affecting multiple areas of his body. He stated that Mr Van Praag “appears to have recalcitrant fibromyalgia which is a condition of diffuse soft tissue pains”. This medical opinion also confirms the symptoms as at March 2017 as being related to the pre-existing pain syndrome/fibromyalgia and not due to any spinal injury.
[20]Gladstone Street Medical Clinical, CB 349
[21]CB 76
[22]CB 77
[23]ibid
[24]CB 85
23 There is, however, nothing in the medical material to suggest that this fibromyalgia condition has continued to be much of a problem for Mr Van Praag, other than flare ups from time to time. Professor Littlejohn, rheumatologist, in a report of 25 September 2018, having taken a history of the pre-existing fibromyalgia,[25] did not attribute any ongoing back symptoms to that pre-existing condition. Similarly, Dr Kostos, rheumatologist, in a report of 10 June 2020, again armed with the knowledge of the previous diagnosis of fibromyalgia, noted that diagnosis of fibromyalgia to be “quite evident” when Mr Van Praag attended Dr Boers. Dr Kostos opines that the condition had been more compatible with a chronic pain syndrome, but does not ascribe any ongoing symptoms to the pre-existing condition. The short point is that the medical material confirms that Mr Van Praag had a pre-existing pain condition, one which he readily acknowledged in his evidence, considered by specialists to be fibromyalgia, that has waxed and waned from time to time but does not at present produce ongoing symptoms. I find that, consistent with the medical opinions, the ongoing low back pain is unrelated to the pre-existing fibromyalgia.
[25]CB 144
24 In his affidavit sworn 13 June 2019, Mr Van Praag describes ongoing back pain since the incident. He confirms the ongoing symptoms in his more recent affidavit of 26 June 2020. I accept his evidence about those symptoms. Those symptoms necessitated referral to a neurosurgeon, Dr Michael Wong, initially on 25 July 2017. Dr Wong arranged another MRI scan of the spine.[26] At review on 8 August 2017, Dr Wong noted that the predominant pain was in the lower back and left leg, and arranged a left L5 nerve root block.[27] He otherwise advised ongoing conservative treatment. That conservative treatment for a period of time was general practitioner attendances but, for the last twelve months or so, has involved chiropractic care with Craig Carter[28] and the use of over-the-counter medication.
[26]CB 57
[27]CB 88
[28]CB 89
25 In his letter of 8 August 2017 to the treating general practitioner, Dr Wong commented that MRI scanning had demonstrated a small left L4-5 disc prolapse with slight compression of left L5 nerve root.[29] That diagnosis is consistent with the majority of medical opinion. Professor Littlejohn, in his report of 25 September 2018, diagnosed that “the injury to the lumbar spine has affected soft tissues (musculo-ligamentous and possibly disc structures) with clinical features of sensitisation of pain pathways in those regions”.
[29]CB 88
26 Dr Sullivan, intervention pain specialist and specialist anaesthetist, in a medico-legal report of 16 January 2020, diagnosed aggravation of lumbar spondylosis and a chronic pain condition largely affecting his low back and left lower limb.[30]
[30]CB 109
27 Professor Bittar, neurosurgeon, in a report dated 4 May 2020, diagnosed aggravation of lumbar spondylosis and L4-5 intervertebral disc injury/prolapse.[31]
[31]CB 114
28 Dr Bruce Low, orthopaedic surgeon, provided several reports. In his most recent record of 21 April 2020, he states that Mr Van Praag “most likely has an internal disc derangement/symptomatic degenerative disc at L4-5/possible compressive disease”.[32]
[32]CB 140
29 Dr Kostos, as previously mentioned, reported on 10 June 2020. He states that “all of the investigations he had on his spine are irrelevant” and that “as a result of my response to the previous question, there is no diagnosis possible”.
30 Clearly, Dr Kostos’ opinion is against the weight of medical opinion. Therefore, I disregard the opinion of Dr Kostos. I prefer the opinions of Professor Bittar and Dr Sullivan, which are consistent with that of the treating neurosurgeon, Dr Wong. I conclude that Mr Van Praag suffered a back injury, described variously as aggravation of lumbar spondylosis and L4-5 intervertebral disc injury/prolapse.
Are there “very considerable” pain and suffering consequences?
31 The defendant submitted that if I was to find that the plaintiff has an ongoing compensable back injury – which is the finding I have made – then there are currently very few consequences that are referrable to that claimed back injury.[33] The defendant submits that the only consequences are an inability to lift heavy items; that is, items greater than 10 kilograms, and some low-level back pain that requires some analgesia.[34] The defendant does not accept that any ongoing condition would prevent the plaintiff from nursing, and submits that any consequences are not “very considerable”.
[33]T101, L17
[34]T103, L20
32 I reject the defendant’s submission that the ongoing consequences are “low level”. Firstly, I accept Mr Van Praag’s oral and affidavit evidence of ongoing back and left leg pain. Secondly, the defendant placed reliance on the opinion of Professor Littlejohn, as expressed in his report of 25 September 2018. Relevantly, Professor Littlejohn noted that Mr Van Praag had back pain that ranged between 3 out of 10 and 7 out of 10, depending on what he was doing. He noted that Mr Van Praag was then working two days per week and considering building up to three days per week, but the nursing work then performed at Monash Health did not involve any requirement for physical lifting. Professor Littlejohn notes ongoing restriction for day-to-day activity and use of painkilling medication, and expressed the view that Mr Van Praag gave a clear history exhibiting no abnormal pain behaviour.[35] He states that Mr Van Praag’s medical condition impacts on his occupational activity. He states that Mr Van Praag is now restricted to “two and possibly three days of work per week in a non-lifting capacity. His activities of daily living have been diminished because of his persisting back pain.” Professor Littlejohn’s opinion is consistent with the plaintiff’s own evidence.
[35]CB 35
33 Similar histories to that taken by Professor Littlejohn are recorded by treating practitioners and other medico-legal examiners (with the clear exception of Dr Kostos) and the totality of those opinions are that Mr Van Praag is now physically unfit for work as a nurse. I conclude that an inability to return to full and unrestricted nursing duties, being a vocation that the plaintiff really enjoyed,[36] combined with his ongoing pain, lifting restriction and interference in a range of day-to-day activity is such so as to produce a “very considerable” pain and suffering consequence.
Has Mr Van Praag suffered a loss of earning capacity that will be permanently productive of financial loss of 40 per cent of more?
[36]T86, L2
34 In order to succeed in his application for leave to commence a proceeding claiming pecuniary loss damages, Mr Van Praag must establish that:
(i) his loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, were fairly described as being “at least very considerable”; and
(ii) he suffers a loss of earning capacity of 40 per cent or more, measured as set out in s335(2)(f); and
(iii) he will continue permanently to have a loss of earning capacity which would be productive of financial loss of 40 per cent or more.
35 A failure by Mr Van Praag to establish any one of these three matters will require the dismissal of his application to commence a proceeding claiming damages for pecuniary loss.[37]
[37]De Bono v Victorian WorkCover Authority [2019] VSCA 85 at paragraph [48]
36 Firstly, I accept Mr Van Praag’s own evidence and the medical evidence that Mr Van Praag cannot return to his pre-injury employment as a nurse. I reject the defendant’s submission that he is now fit for work as a nurse. There can be no doubt that the loss of his career causes loss of earning capacity consequences that are “at least very considerable”.
37 It is agreed between the parties that if Mr Van Praag was now employed full time as a nurse, then the “without injury” figure that best represents what he was capable of earning is $76,195.60 gross.[38] Sixty per cent of that figure is $45,717.36. The defendant disputes that a figure for full-time work is appropriate on the basis that Mr Van Praag was not employed by the West Gippsland Healthcare Group on a full-time basis. The defendant submits that Mr Van Praag was only contracted to work thirty-two hours with the West Gippsland Healthcare Group, and so the “without injury” figure should be reduced to reflect 32 hours of work (being a reduction of .84 applied to the figure of $76,195.60). I reject that submission. The employment with the West Gippsland Healthcare Group may have been contracted for thirty-two hours per week, but in August 2016, he commenced concurrent casual “nurse bank” employment with Monash Health. That concurrent employment demonstrates at least an intention and capacity to work full-time hours, or possibly more. The figure that most fairly reflects his “without injury” earning capacity is the figure for full-time employment, namely $76,195.60.
[38]CB 16 at paragraph [21]
38 Despite the tendered joint Court Book containing a report from Recovre Vocational Assessors,[39] neither party took me to it, nor sought to advance an argument that any alternate employment identified in that report is now “suitable employment” for Mr Van Praag. The defendant’s case was built entirely around the submission that he was now fit for work as a nurse – which submission I reject, particularly in light of the concession that he would have a lifting restriction – or, alternatively, his residual earning capacity in his current self-employment was such that the claim for pecuniary loss must fail.
[39]CB 157-192
39 It is agreed that as at the date of hearing – effectively the end of the financial year ended 30 June 2020 – Mr Van Praag had gross earnings of $5,105.60[40] from his employment at Monash Health (he resigned in August 2019). It is further agreed that relevant business records reveal that for the same financial year, the gross profit (income to him) is $30,340.78.[41] Therefore, for the financial year ended 30 June 2020, his gross income from personal exertion is $35,446.38. If I accept $35,446.38 reflects the extent of Mr Van Praag’s residual work capacity in that year – which I do accept, in circumstances where he had a limited nursing capacity and was otherwise transitioning his hobby into a business – then that demonstrates Mr Van Praag suffered a loss of earning capacity of 40 per cent or more, as measured in accordance with the formula in s335(2)(f).
[40]CB 254-257
[41]CB 262-263
40 I now turn to the remaining issue, namely whether Mr Van Praag will continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more. In order to answer this question, it is necessary to look at the totality of the evidence regarding his current self-employment. Remembering that the evidentiary onus is on Mr Van Praag to establish that the financial loss is permanent (as being likely to last for the foreseeable future), such evidence is limited.
41 Mr Van Praag relies on two affidavits. The first affidavit sworn on 13 June 2019 makes no mention of the self-employment in MW Laser. In the more recent affidavit, sworn 26 June 2020, the work at MW Laser is set out in limited detail.[42] It is convenient to set out verbatim some relevant paragraphs from that affidavit as follows:
[42]CB 16 at paragraphs [13]-[20]
“15. Since ceasing work for Monash Health in about August 2019, I have spent more time on this ‘home business’.
16. Given the timing of this hearing, I have yet to prepare and submit a tax return for the 2020 financial year, but I can indicate that for the year to date, the business has received about $72,247.15 in gross revenue, and profit of about $30,340.78. About $8,990.00 in revenue and $2,200 in profit was received from the sale of an imported laser machine to a customer.
17. Overall, the income I receive from the business fluctuates, and is not yet regular and reliable. It cannot say whether the business will earn more or less in coming years.
18. I do believe, however, that I am working at my full physical capacity and do not believe I can increase my working hours for the foreseeable future. I would need to work more hours to generate more income.”
42 The paragraphs as set out from the affidavit describe that from August 2019, Mr Van Praag has spent more time on his home business; the profit from the business for the year ended 30 June 2020 may not necessarily reflect him operating the business at his “full capacity”; the business income fluctuates and “is not yet regular and reliable”; he “cannot say whether the business will earn more or less in the coming years”,[43] and that he believes he is currently working at his full physical capacity and “would need to work more hours to generate more income”.[44]
[43]CB 16 at paragraph [17]
[44]CB 16 at paragraph [18]
43 The affidavit evidence is unclear as to whether the profit for the year ended 30 June 2020 is, in fact, reflective of his permanent “with injury” earning capacity. It is unclear whether the profit reflects him working in the business at full residual capacity for the entire twelve-month period, although logically it cannot be so as the evidence tends to the conclusion he has only done so after resigning from Monash Health and upon commissioning the new laser machine.
44 The affidavit evidence provides very little detail as to how the business operates, Mr Van Praag’s actual role in it, and how income and profit is generated, other than the brief description that in or about late 2018 or early 2019 he started the business as a hobby making “laser products (for example keychains, pet tags and cake toppers).[45] Whether or not the business continues to make such products, especially now the new laser has been commissioned, is entirely a matter for speculation based on the affidavit evidence. The affidavit is completely lacking in detail about the new laser machine; no mention is made of it at all No detail is given as to when that laser machine was commissioned, what items are made with it and whether the new laser machine has increased (or decreased) the income to Mr Van Praag. I do not go so far to find that this omission is a credit point against him, but I consider it a major evidentiary omission. On this important issue, there is a lack of detail in the affidavit material.
[45]CB 16 at paragraph [13]
45 Next, is the oral evidence given by Mr Van Praag regarding his current self-employment. Once again, the evidence is limited.[46]
[46]T39, L18-30
46 In cross-examination, Mr Van Praag acknowledged that his business “has been picking up”[47] and had since starting, “yes it has increased, obviously it’s increased”.[48] The tendered YouTube video[49] demonstrates that in July 2019, Mr Van Praag designed a frame for a new laser machine that he had purchased for his business, and then, in August 2019,[50] the video depicted him undertaking further work associated with the assembly of that new laser machine. He conceded in cross-examination that after learning his first laser machine, he needed something bigger, that he would like to build himself and that was about the time he registered his business name.[51] Earlier in cross-examination, he described how in his business he makes keyrings, pet memorial plaques, pet tags and engraves bottles.[52] He agreed that because of the success of the business, he had decided to dedicate more time to it, but that he “still only works a couple of hours a day”[53] in the business. He was asked specifically about business revenue. He accepted that the business income had increased by fifteen times this financial year as compared to last financial year, but explained that development as it had initially started as a hobby.[54] In respect to business income for the next financial year, he said “at this stage I would suspect it’d be similar”.[55] In re-examination, he confirmed the business had started as a hobby, but that “[w]hen it started picking up I registered my business name … and that’s when I started focusing on making it more a business than just a hobby”.[56] He confirmed in the previous financial year, there had been a lot of set-up costs and that since he ceased work at Monash Health, he now had more time for the business.[57]
[47]T57, L8
[48]T57, L13
[49]Exhibit D2
[50]Exhibit D3
[51]T76, L2-10
[52]CB 16 at paragraph [13]; T57, L2-7
[53]T81, L21
[54]T82, L17-26
[55]T82, L12-13
[56]T84, 5-8
[57]T84, L9-19
47 That is the extent of the relevant oral evidence regarding Mr Van Praag’s self-employment.
48 Turning next to the relevant evidence of self-employment as set out in medical reports. Dr Sullivan took a history that Mr Van Praag undertakes craft on the computer and an ergonomic workbench making key chains.[58] Dr Sullivan opines that Mr Van Praag, “probably has capacity for around 8 to 12 hours sedentary work per week such as the type of work that he is doing with his craft hobby”.[59] Professor Bittar took a history that Mr Van Praag is currently working in a self-employed role approximately twelve hours a week, as a laser engraver.[60] He further took a history that Mr Van Praag commenced that self-employment at home in 2019 and “this work has increased in hours since late 2019”.[61] He went on to state that Mr Van Praag had a capacity to work in a modified role of up to twelve to sixteen hours per week. He states that “[w]hilst working from home, he could work up to 16 hours per week”.[62] Dr Bruce Low took a history that Mr Van Praag worked from home manufacturing key rings and other small products and that he “generally works one or two hours in his workshop each day”.[63] Dr Tony Kostos took a history that Mr Van Praag works in his garage laser cutting and engraving key tags and “spends about two hours per day doing this”.[64] That is the extent of the relevant recording by medico-legal examiners as to the current self-employment.
[58]CB 108
[59]CB 110
[60]CB 111
[61]CB 113
[62]CB 115
[63]CB 140
[64]CB 196
49 Based on the whole of the relevant evidence as set out, I conclude that Mr Van Praag’s residual earning capacity for suitable employment is limited to the light, part time, self-employment that he is now undertaking for 12 to 16 hours per week in the business of MW Laser. The question to then be answered is whether, in such employment, he will permanently have an ongoing loss of earning capacity which would be productive of financial loss of 40 per cent or more. In support of the proposition that the answer to the question is that requisite permanent loss is made out, Mr Blanden QC submitted that:
“… we say that he would need to work more hours in order to earn more money, and if Your Honour accepts that he’s working at about capacity, and we say Your Honour should accept that, because that’s what the evidence establishes, then there’s no case really for the proposition that his business is going to suddenly accelerate in terms of earnings, because of his working capacity, the business is effectively returning at about capacity; we say that anything else – anything else in relation to what the business is likely to do in the future is really no more than speculation.”[65]
[65]T128, L6-17
50 Mr Blanden QC submitted that the determination of this issue “comes back again to the simple proposition that the business can’t generate more income without the plaintiff working more hours”.[66] It is a simple submission and one that at first blush is attractive, but of course there is a difference between physical capacity and earning capacity.
[66]T137, L26-28
51 Pausing to illustrate this point, I have no evidence that Mr Van Praag’s earnings from self-employment is somehow linked to an hourly rate of pay. The extent of the evidence is that he uses a laser machine to make objects and those objects are sold for profit. I do not know how long it takes to make a particular object or the price charged. It is probably correct that the more Mr Van Praag works, the more he would earn, but even so, there is no objective evidence of that being correct because of the limited information I have regarding how he runs the business.
52 It was further submitted on behalf of Mr Van Praag that because this was not the ultimate determination of a damages claim, and the fact I am dealing with a “gateway provision” means that there is sufficient evidence that Mr Van Praag’s business is running at capacity; that he would need to work more hours to generate more income, and, in the circumstances, he has the requisite loss to satisfy the grant of leave to commence a proceeding for pecuniary loss damages.
53 In case there is any doubt, I note that the determination I must make is for the purposes of a gateway provision. It is not an assessment of damages and, in the end, it is a matter of judgment for the purposes of a gateway provision.[67]
[67]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph [89]
54 At the risk of repetition, I accept the evidence that Mr Van Praag cannot return to his previous employment as a nurse. Based on the whole of the evidence and the way this matter was presented before me, I accept that Mr Van Praag’s self-employment is the limit of his “with injury” earning capacity and that he is capable of undertaking that employment between 12 and 16 hours per week, consistent with the medical opinions already discussed, and that he is currently working at or about capacity.[68]
[68]T126, L6
55 As at the date of hearing, being (effectively) the end of the financial year 2019/2020, Mr Van Praag had gross income from personal exertion totalling $35,446.38, by combining his earnings from Monash Health and from self-employment. If I accept $35,446.38 as the figure to measure his residual earning capacity, then he would have a loss of earning capacity which would be productive of financial loss of 40 per cent or more.
56 But the ongoing loss must be permanent.
57 There is a lack of detail in the evidence as to the operation of MW Laser and his income from the business. Mr Blanden QC submitted that “the lack of detail is catered for by the description of how the business earns its income” and that it “comes back again to the simple proposition that the business can’t generate more income without the plaintiff working more hours”.[69] I do not accept that submission to overcome what I conclude to be the lack of relevant evidence about how the business operates, or how the plaintiff earns income from it.
[69]T137, L26-28
58 Accepting that a broad-brush approach can be taken for the purposes of a gateway provision, there is still a need for a proper evidentiary basis to determine the issue, and such a basis is lacking in the evidence before me. The explanation for that omission may be because the business is still in its start-up phase. Mr Van Praag himself cannot say whether the business will earn more or less in coming years.[70] He does not rule out the possibility of greater income to him even if he remains working or operating the business at his current capacity. I do not accept that even for the purposes of a gateway provision, it is sufficient in this case to simply take the earnings for the last financial year as evidence of the permanent loss of earning capacity. It was submitted that Mr Van Praag has run the business at capacity for the twelve months.[71] I reject that submission when the evidence is clear that he has not. His involvement in the business increased some time after he stopped nursing in August 2019 and commissioned the new laser machine. But the lack of detail in the evidence means that he has failed to discharge the evidentiary burden so as to enable me to conclude that operating the business at his current residual capacity will cause him to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.
[70]Plaintiff’s affidavit dated 26 June 2020, CB 16, paragraph [17]
[71]T142, L26
59 I am conscious of the need to engage with all of the evidence, before coming to a conclusion whether Mr Van Praag has or has not satisfied the onus of establishing the relevant loss of earning capacity. Having done so, for the reasons set out, I am not satisfied that the relevant permanent loss has been made out.[72]
[72]Yirga-Denbu v Victorian WorkCover Authority (op cit) at paragraph [67]
60 In summary, the lack of relevant detail in the evidence is such that Mr Van Praag has failed to discharge the onus to establish that the gross income of $35,446.38 for the financial year 30 June 2020, being a mix of nursing and self-employment, is effectively “as good as it gets” and is the figure I should accept to measure his permanent residual loss of earning capacity. Therefore, leave to commence a proceeding for pecuniary loss damages is refused.
61 Accordingly, I propose to grant leave to the plaintiff to commence a proceeding for pain and suffering damages in respect to injury to the lumbar spine arising out of or in the course of his employment with the West Gippsland Health Group, and I will make consequential cost orders and any other necessary orders after I have heard from the parties.
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