VWA v Holcim (Australia) Pty Ltd
[2022] VSC 150
•31 March 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2020 04453
| VICTORIAN WORKCOVER AUTHORITY | Plaintiff |
| v | |
| HOLCIM (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7, 8, 9, 10, 11, 14, 15, 16 and 21 February 2022 |
DATE OF JUDGMENT: | 31 March 2022 |
CASE MAY BE CITED AS: | VWA v Holcim (Australia) Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VSC 150 |
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PERSONAL INJURIES – Recovery proceeding brought pursuant to the Workplace Injury Rehabilitation & Compensation Act 2013 (Vic), s 369 – Most facts and issues determined in the related common law proceeding: Trtovac v Total Mix Pty Ltd [2022] VSC 149 – Residual issues determined as required.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | RH Stanley | Wisewould Mahony |
| For the Defendant | D McWilliams with P Santamaria | Sparke Helmore |
HIS HONOUR:
The plaintiff brings this proceeding seeking the recovery of statutory compensation and the like arising out of injuries sustained by Mr Suad ‘Sam’ Trtovac. The claim is brought pursuant to s 369 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act).
Mr Trtovac brought a common law proceeding against his employer and the present defendant. The evidence in that proceeding was received in this proceeding.
In the course of the hearing, discrete aspects of further evidence were led by counsel for the present plaintiff. Submissions of counsel in this proceeding were heard and received in that context.
My reasons in the common law proceeding are delivered at the same time as these reasons: Trtovac v Total Mix Pty Ltd [2022] VSC 149.
In the present proceeding, the issues are –
(a) Factor X – extent of liability;
(b) Factor C – amount paid by the present defendant on judgment in the common law action; and
(c) Factor A – the notional assessment of common law damages absent statutory restrictions.
To some extent, the issues in respect of Factor X are determined by findings made in the common law proceeding. In particular –
(a) Mr Trtovac was injured as a consequence of the negligence of both defendants; and
(b) Mr Trtovac was not guilty of any contributory negligence that contributed to his injury.
That said, in the common law proceeding I was informed that the contribution proceedings between the defendants had been resolved. It follows that I did not there need to determine the extent of their respective contributions to the plaintiff’s injury, loss and damage.
Nonetheless, my reasons in the common law proceeding should make it clear enough that the negligence of the second defendant in that proceeding (the present defendant) was, in my view, greater than that of the first defendant (employer).
Mr Trtovac was injured at the present defendant’s plant and upon the present defendant’s equipment, about which it seems to have been somewhat proprietorial. The present defendant had direct and relatively simple procedures which should have protected the plaintiff. Those procedures were implemented incompletely, but relevantly failed. The causal potency of that failure, in the circumstances, was very significant.
I have, of course, taken account of the associated negligence of the employer – to which I have referred in some detail in my reasons in the common law proceeding.
In my view, the present defendant caused or contributed to Mr Trtovac’s injury, loss and damage to the extent of 75% and the employer contributed to the extent of 25%. It follows that Factor X is 75%.
Factor C, will, of course, be determined by reference to the judgment finally to be calculated and ordered in the common law proceeding.
That leaves Factor A. The assessments for general damages and past and future loss of earning capacity have been made in the common law proceeding. The present figure for future loss of earning capacity must be revised by reference to the 3% multiplier, which is both appropriate and accepted.[1]
[1]Outline of submissions on behalf of the second defendant (in the common law proceeding), [87].
That leaves the following sub-issues for determination –
(a) past and future medical and like expenses; and
(b) past and future attendant care.
In respect of the claims for medical and like expenses, the plaintiff tendered and relied upon a certificate made pursuant to s 590 of the Act.[2]
[2]Exhibit VWA 1.
In that connection, for past medical and like expenses, the plaintiff claimed $75,209. The defendant allowed $59,840.75.
In addresses, it emerged that the difference was to be explained by reference to the exclusion of items relating to travel costs.
It was not apparent that those items were incurred or paid improperly. For the past, I would allow the figure claimed by the plaintiff or such figure as is appropriate to bring the calculation to the date of judgment in this proceeding.
In respect of future medical and like expenses, the plaintiff identified the appropriate multiplier, about which no issue was taken, together with an average over the past twelve months of such expenses at $224 per week. The total claim was assessed at $281,165, to which counsel applied a discount of 40% to take account of what were described as ‘the vagaries of life’.[3] At the time at which argument was heard, the proposed sum was $168,700.
[3]Plaintiff’s outline of submissions dated 18 February 2022, [7.15]. See also, T795.
The essential foundation for that assessment was explained in written submissions,[4] but also in address as follows –
My approach is somewhat more expansive [compared to that that taken by counsel for the defendant], obviously, and that includes not just pharmaceutical expenses but general practitioner attendances, physiotherapy, hydrotherapy and the potential for Mr Trtovac, as he said in his evidence, to resume psychological counselling.[5]
[4]Plaintiff’s outline of submissions dated 18 February 2022, [7.12].
[5]T795.
As will be evident, counsel for the defendant took issue with that approach and proposed an allowance of $9 per week and a total assessment of $11,054.70. That figure was derived from a weekly average of Mr Trtovac’s pharmaceutical expenses only over the last 12 months. Counsel also said that Mr Trtovac obtains only ‘minimal’ relief from his current treatment.
There is some support for the view that the present physiotherapy and hydrotherapy treatments may be unnecessary. On the other hand, Mr Trtovac gave evidence that his present regime is in accordance with his medical advice.[6] He also said that he would like to continue with it as well as take up counselling or psychiatric assistance.[7] It is, perhaps, also not quite fair to say that Mr Trtovac’s present treatments give him only ‘minimal relief’ – he certainly did not consider it that way when asked about why he was undertaking them.[8]
[6]T101. See also, T150.
[7]T57-58.
[8]T99-100.
In my view, there is support in the material for future allowance to be made for the treatments to which I have referred. Partly that is because there is presently some medical support for them, and I would also expect the current treatment regime to continue into at least the near future. However, it will be also be apparent from my reasons in the common law proceeding that I consider that Mr Trtovac’s condition is more likely to be assisted if he were, in fact, to undertake more treatment, not less. That may also involve a re-orientation towards pain management as well as specific treatment of a psychological or psychiatric kind. As I have noted, in evidence Mr Trtovac expressed an interest in counselling or psychiatric treatment. He also expressed a desire to be able to return to work.[9]
[9]T153-154.
For those reasons, even if the present orientation of Mr Trtovac’s treatment might come to change in the future, it seems to me to that it could result in more treatment, not less, and that whatever comes ultimately to be discontinued may well end up being replaced by something else. Whether that will ultimately end up being more or less expensive is presently unknown. It is, however, not hard to imagine that it could be more. In the circumstances, I do not consider it to be unfair to allow the figure presently proposed by the plaintiff.
As I have noted, counsel for the plaintiff allowed an overall discount of 40% by reference to ‘vagaries’. Consistently with my reasons in the common law proceeding, I would apply a discount of 50%.
It follows that for future medical and like expenses I would allow the claimed figure of $224 per week multiplied as proposed and discounted by 50%, albeit in a sum appropriate to bring the calculation to the date of judgment.
The final issue is past and future attendant care.
Mr Trtovac gave evidence of reliance upon family members in respect of activities that he performed prior to injury, such as gardening, cooking, shopping and cleaning. There were some elements of medical support for that claimed incapacity, as highlighted by counsel for the plaintiff in address.[10] Mr Trtovac gave evidence that he received such assistance for ‘five to 10 hours’ per week.[11]
[10]T798-800.
[11]T56-57.
No issue was taken with the plaintiff’s reliance upon rates of care provided by Australian Home Care,[12] or the applicable multiplier.
[12]Exhibit VWA 3.
On that basis, counsel for the plaintiff assessed the past and future claim at the mid-point of the hours of which Mr Trtovac gave evidence – namely, 7.5 hours – and also at the rate of $40 per hour. The figure for the past was calculated at $93,600.
As to the future, the plaintiff applied the multiplier and, as above, applied a ‘vagaries’ discount of 40%. The figure for the future was calculated at $225,936.
Counsel for the defendant submitted that there should be no allowance for any attendant care. It was submitted that there was no medical support for it, that Mr Trtovac had given evidence that he was able to undertake his usual activities of daily living and that Mr Trtovac’s relatives had not been called to corroborate his account.
I do not accept the submission that Mr Trtovac conceded that he was able to engage in the usual activities of daily living. When he was asked about it, he answered ‘no’.[13]
[13]T155.
I have already indicated there was some medical support for the present claim, but I do not presently regard that as a necessary condition in order to establish the foundation for it. It was pretty evident that Mr Trtovac has struggled with back and other pain since injury. There was plenty of medical support for that state of affairs. He has also not worked since. Nor is there any suggestion that he has since been doing anything remotely vigorous. It is not wholly surprising that he has been obtaining assistance at times: after all, he does live with family, including his elderly parents.
Further, having regard to my views concerning the relatively straightforward manner in which he gave evidence – expressed in my reasons in the common law proceeding – I do not consider that it was necessary for Mr Trtovac’s account to have been corroborated.
That said, there were elements of the evidence – including Mr Trtovac’s own evidence – which tended to suggest that his condition has likely fluctuated since injury. He confirmed that he has ‘good days’ and ‘bad days’. His estimate of hours of help was in a range. It was evident that he can engage in some activities at times. He also confirmed that he has tried to help out his family ‘on occasions’.[14] Mr Trtovac also said that he was ‘more self-dependent’ prior to injury,[15] which may also suggest a matter of degree.
[14]Ibid.
[15]T156.
It follows from the above that Mr Trtovac may well not have had the same requirement for assistance throughout the whole of the last six years. Much of his oral evidence seemed to me to be influenced by his perceived present need, but that may well have been lower during days and even periods in the past. After all, six years is a long time. For those reasons, I would assess his average weekly requirement for past assistance at five hours per week.
As for the future, similar considerations seem to me to be likely to apply together with the possibility that with motivation and a re-oriented focus in treatment Mr Trtovac’s condition may improve.
For those reasons I would assess a weekly requirement for the future at five hours per week but, consistently with my reasons in the common law proceeding, I would discount the assessment by 50%.
There will be judgment for the plaintiff. I will allow counsel to consider these reasons and to propose or agree orders to reflect the determinations and assessments made.