Watling v Skilled Group Ltd
[2016] VCC 1715
•23 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-15-04609
| JONATHAN WATLING | Plaintiff |
| v | |
| SKILLED GROUP LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2016 | |
DATE OF JUDGMENT: | 23 November 2016 | |
CASE MAY BE CITED AS: | Watling v Skilled Group Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1715 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 –s134AB – injury to the back – application in respect of pain and suffering damages and pecuniary loss damages – reliance upon paragraph (a) of the definition – calculation of plaintiff’s without injury and after injury earnings – decision in the Herald & Weekly Times Ltd v Jessop – questions of capacity – whether statutory test satisfied in relation to pain and suffering damages and pecuniary loss damages – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr E Makowski | Maurice Blackburn |
| For the Defendant | Mr A Moulds QC with Ms N Wolski | Lander & Rogers |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of both pain and suffering damages and pecuniary loss damages. In so doing, he relies upon paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act. The relevant injury is one to the back, and particularly to the lumbar spine. It is alleged that the plaintiff’s low back symptoms came on as a result of heavy repetitive work. The defendant is a labour hire organisation, which places employees at particular work sites. It is alleged that the plaintiff suffered the back injury when placed by the defendant at the premises of Amcor, where he performed heavy work. This shall hereinafter be referred to as “the Amcor work”.
2 In this case, there is no argument but that the Amcor work caused the relevant symptoms of the plaintiff. His claim for statutory benefits was accepted and payments made in this regard – see Transcript (hereinafter referred to as “T”) 8.
3 Mr J Mighell QC with Mr E Makowski of Counsel appeared on behalf of the plaintiff. Mr A Moulds QC with Ms N Wolski of Counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits as being true and correct, and was cross-examined. The balance of the evidence, including surveillance video, was documentary in nature and was tendered either by consent or without objection.
Factual background
(a)The plaintiff’s background, training and employment prior to the Amcor work
4 The plaintiff is aged thirty-four years, he having been born on 24 September 1982. He is a single man, although he currently has a partner. Her name is Ms Eilis Kelly and she has provided an affidavit in support of the plaintiff’s application.
5 The plaintiff was educated to Year 11 level. His schooling seems to have been somewhat troubled, involving some expulsions. After leaving school, he became qualified as a fitter and turner. He holds certificates as a dogman and rigger. During the conduct of the case, it became apparent that he is a reasonably intelligent man. He is quite an accomplished pianist and cellist.
6 The plaintiff worked for some time as a machine operator with Ajax Fasteners, before commencing his apprenticeship as a fitter and turner there. After Ajax Fasteners closed, he then went to another company. After becoming a fully qualified fitter and turner, he worked for various labour hire organisations, before commencing employment with the defendant in 2010. The defendant sent him to work at the Amcor establishment in Alphington. He continued working there as a maintenance fitter and turner during all relevant periods. The plaintiff alleges that it was heavy work and that he was doing this when he first noted the onset of low back symptoms in approximately February 2012.
The plaintiff as a witness
7 The plaintiff impressed me as a credible, straightforward witness. I accept his evidence. Quite extensive video surveillance was shown. Most of it did no damage whatsoever to the plaintiff’s credit. I disagree with the submission of Mr Moulds that the film of the plaintiff taken at the zoo is of any particular impact. The plaintiff was seated for quite a considerable period and a bend that he performed also involved a bending of the knee. His walking, both at the zoo and generally, did not strike me as being of great significance. The plaintiff appears to have a somewhat unusual gait. At times he walked quite slowly and at times relatively briskly.
8 The only portion of the film that showed the plaintiff engaging in anything that had the potential to indicate a greater capacity than otherwise demonstrated was the use of a somewhat troublesome lawnmower. Essentially, he was operating this upon the nature strip apparently outside his house. However, that the plaintiff occasionally mows the lawn is not something that he denied. The supporting affidavit of his father, Mr Robert Watling, refers to the fact that the plaintiff can do some lawn mowing, but has difficulty doing anything for prolonged periods. I would also point out that it was admitted that there had been some 60 hours of surveillance carried out. On balance, I am not of the view that even this part of the surveillance does any great damage to the plaintiff. Apparently only a very small percentage of this was productive of film that was considered to be worthwhile showing and, as stated, a substantial portion of the film which was shown did no harm to the plaintiff’s credit.
9 I also note the point made by Mr Mighell in his closing address that the plaintiff has been examined by a number of doctors, including those organised by the defendant, and there is no medical practitioner that says that the plaintiff is in any way exaggerating or falsifying his symptoms.
10 In short, I find the plaintiff to be a witness of truth.
The state of the plaintiff’s health prior to the injury
11 The plaintiff had suffered various injuries prior to the Amcor work, but none of them appear to have any great relevance in relation to his present situation. He has suffered a fractured left elbow and a fractured clavicle. In approximately 2007 he was diagnosed with testicular cancer and underwent treatment for it. At times he has suffered from anxiety and at times has had problems with alcohol. There would appear to be no suggestion of any prior back injury.
The injury, its treatment and diagnosis
12 The plaintiff performed heavy work from June 2011 until ceasing work on 19 March 2012. The onset of back symptoms seems to have first occurred in February 2012. However, the plaintiff attempted to continue on, until he felt forced to cease on 19 March. He first attended upon his usual general practitioner, Dr Tony Michaelson, on the following day, 20 March 2012. He was put off work. Ultimately, Dr Michaelson referred the plaintiff to Mr Peter Wilde, orthopaedic surgeon, who first saw him on 11 July 2012. It would appear from the history obtained by Mr Wilde that the plaintiff first developed back pain on 9 February 2012 after a very long and heavy day’s work. The pain became worse over the following week. The plaintiff attended the work physiotherapist and also a general practitioner, who seems to have been the “work’s doctor”. He also tried osteopathy. The pain worsened, with the plaintiff developing quite severe pain down his left leg. A CT scan had been performed on the lumbar spine on 13 February 2012. This would appear to have been organised by Dr O’Halloran, the work’s doctor. This revealed a minor broad based disc bulge at L4/5 with a slightly more prominent central component indenting the interior aspect of the thecal sac. At L5/S1, there was a moderate sized left posterolateral disc bulge, indenting the thecal sac and slightly displacing the left S1 nerve root. It would also appear that an epidural injection at L4/5 was performed at about this time, although it did not produce significant improvement.
13 When Mr Wilde saw the plaintiff on 11 July 2012, the plaintiff reported considerable back and buttock pain, with shooting sensations to the left calf and foot. He reported quite marked limitations in relation to walking, sleeping and the like. He was on Tramadol. He was drinking alcohol daily.
14 Mr Wilde also had available to him the report of an MRI scan, which had been carried out at the request of Dr Michaelson on 22 June 2012. The report of the radiologist was somewhat similar to what had been found on the CT scan. There was mild degenerative disc disease at L4/5 and L5/S1. At L4/5, there was a posterior transverse annular tear with disc bulging. Mild L5/S1 disc bulging was seen as well. There was no significant canal stenosis or obvious nerve root impingement.
15 Mr Wilde may well have viewed the actual film, as his comments differ slightly from the conclusions to be found in the radiologist’s report. In his report of 22 October 2013, Mr Wilde referred to the MRI scan as demonstrating a large annular tear at L4/5 and a second left para central tear at the lumbosacral level. He also referred to the fact that the left S1 nerve root, as it passed this tear, was slightly enlarged. These are observations which do not coincide entirely with the radiologist’s report, and suggest that Mr Wilde had seen the actual film and expressed his conclusions on the basis of that viewing. At the lumbosacral level, the left S1 nerve root, in the vicinity of the tear, was slightly enlarged and Mr Wilde was of the view that this would have been causing irritation. He considered the situation to be not one for surgery, even though the plaintiff inquired as to this. Because the plaintiff had a two-level problem, Mr Wilde was of the opinion that this was not easily managed by surgery, especially for a young man who was a manual worker. Mr Wilde recommended a trial of Lyrica and, if that was unsuccessful, referral to a rehabilitation specialist.
16 The plaintiff returned again to Mr Wilde for review on 24 September 2013. He had been under the care of Dr Hamza at the Spinal Management Clinics of Victoria. Physiotherapy had assisted. He was working 16 hours per week, performing light duties, involving the sticking of labels on boxes. Surgery was again discussed, but Mr Wilde again pointed out the problems associated with it. He recommended retraining.
17 The conclusion of Mr Wilde was that the plaintiff had a chronic lumbar spinal condition. He implicated employment. His diagnosis was of mechanical lumbar back pain secondary to annular tears of the lower lumbar discs. He considered the condition to be stabilised and the prognosis to be guarded. He regarded the plaintiff as being unable to return to his pre-injury work as a maintenance fitter or to other forms of physical or manual work. He recommended vocational retraining, but, given the plaintiff’s education, work skills and employment history, Mr Wilde thought it may well be difficult for the plaintiff to find appropriate work. He regarded the plaintiff as being unfit for work that involved significant bending, lifting or twisting. Mr Wilde’s comprehensive report effectively covers the situation up until the time of his review of the plaintiff on 24 September 2013.
18 Also placed in evidence was a detailed report from Mr Matthew Richards, physiotherapist, who would seem to have been part of the team, which also involved Dr Hamza, at Spinal Management Clinics of Victoria. In his report of 12 October 2014, Mr Richards set out a detailed history and results of his testing. His diagnosis was of moderately severe lumbar and left lower limb pain condition with neuropathic-type symptoms. He also referred to an adjustment disorder with symptoms of depression. The plaintiff attended at the clinic for a pain management program, until discharged on 3 June 2013. Mr Richards reported that the team managing the plaintiff, as at the time of his discharge on 3 June 2013, said that he had a working capacity of four hours per day, three days per week, with one day rest in between shifts. Quite marked restrictions were placed upon his ability to lift and there was to be no sustained or repeated forward bending or twisting. It was also recommended that the plaintiff sit in an appropriate chair, but for no longer than 30 minutes, and not stand or walk for longer than 30 minutes. It was also thought that his pain, disability and fear avoidance levels remained significant and were likely to impact on attempts to return to normal daily activity, including work, into the future.
19 The report of another treating physiotherapist, Mr Brad Turner, was also placed in evidence. A considerable part of this report deals with the early history of treatment of the plaintiff, referring to such things as regular hydrotherapy exercises, clinical Pilates and the like. The impression gained is that Mr Turner’s treatment largely ceased when the defendant stopped funding physiotherapy in approximately April or May of 2014. Mr Turner stated that he fully agreed with the work restrictions placed upon the plaintiff by Dr Michaelson.
20 Also before me are two more recent reports from Dr Michaelson. His report of 20 July 2015 records that the plaintiff was continuing to have daily low back pain and sciatica, which disturbed his sleep and limited his sitting to approximately 30 minutes. The plaintiff was walking every day, but only for about 30 minutes. No medication was being taken, as nothing seemed to help him. The plaintiff’s condition was considered to be stable.
21 Dr Michaelson reported again on 27 June 2016. He stated that there had been no change in the plaintiff’s condition since previous reports. Dr Michaelson was continuing to issue WorkCover certificates, placing restrictions upon the plaintiff’s employment potential. The restrictions continued to be that work be confined to four hours per day, three days per week, with no lifting, bending, twisting or pushing. There was also to be no sitting or standing for more than 30 minutes without a break, and this was to include the use of public transport. Dr Michaelson noted that the plaintiff was a talented cello and piano player, which had enabled him to take up teaching, but only part-time and in accordance with the restrictions set out above.
22 The plaintiff has also been seen for medico-legal purposes. At the request of his solicitors, the plaintiff was seen by Professor Richard Bittar on 15 April 2016. Amongst other things, Professor Bittar recorded in his history that the plaintiff at present does not take medications, as they interfere with his ability to play music. This was also something which the plaintiff mentioned in his evidence. Professor Bittar also noted another matter mentioned by the plaintiff in evidence, namely, that he no longer can play the cello because of the pain caused when holding the instrument. The diagnosis of Professor Bittar was that the plaintiff was suffering the aggravation of lumbar spondylosis, the most likely source of his pain being injury to the intervertebral lumbar discs at L5/S1 and/or L4/5. Professor Bittar regarded the prognosis as guarded. It was his opinion that the plaintiff’s partial incapacity for work was permanent. He thought that the plaintiff did have the capacity to teach music for up to 12 hours per week.
23 The defendant has also had the plaintiff examined. Dr Chris Baker, specialist in occupational medicine, reported to the defendant on a number of occasions in 2012 and 2013. In his initial report of 8 August 2012, the diagnosis of Dr Baker was that the plaintiff had degenerative disc changes at the lumbosacral level, resulting in left-sided disc bulge, with symptoms affecting the associated nerve roots on the left side. He implicated employment. He was of the view that the plaintiff could not return to his pre-injury duties, but did have a capacity for alternate duties with a different employer. Subsequently, the restrictions that he placed upon the plaintiff were that there should be no lifting, pushing or pulling of weights of more than 10 kg between floor and shoulder height, and also no repeated bending, lifting or working in a cramped or fixed posture for prolonged lengths of time. He advised that the plaintiff should move about and change his position at will. Subsequently Dr Baker took part in an on-site assessment. The plaintiff was not present. Dr Baker recommended that initially the plaintiff attend four hours per day on alternate days and that his work should be restricted to making data entries and the like. Of course, the plaintiff attempted a resumption of part-time light duties in 2013, before ceasing because of the severity of symptoms on 28 November 2013.
24 In a subsequent report of 10 December 2012, Dr Baker referred to certain non-work related components in relation to psychological issues. However, it seems to have been subsequent to this that the plaintiff in fact returned to work. That was still the position when Dr Baker examined the plaintiff on 15 March 2013. The purpose of this examination and report was, to a considerable extent, directed to the plaintiff’s treatment and a multidisciplinary pain management program. Dr Baker referred to the presence of some non-physical factors.
25 At the request of the defendant, the plaintiff was also seen by Dr Umberto Boffa, occupational physician. Dr Boffa first saw the plaintiff on 12 August 2013. At that time, the plaintiff had returned to work some three weeks earlier, doing four hour shifts, three days per week, during which he sorted small components whilst seated at a bench. Basically Dr Boffa approved certain aspects of a return to work plan. In another brief report of 27 October 2013, he described the plaintiff as having had chronic low back pain from February 2012. Essentially he was advising upon treatment such as Pilates and physiotherapy, effectively advising the defendant’s insurer that responsibility for the Pilates and physiotherapy should cease.
26 Dr Boffa saw the plaintiff again on 11 November 2013. By this time, the plaintiff was working 20 hours per week, sitting at a bench and repetitively sorting small components. Whilst he was still employed by the defendant, this work was not being done at Amcor. Dr Boffa found the plaintiff to have mechanical low back pain with left lower limb radiculopathy. He found the plaintiff to have a work capacity, with restrictions in relation to lifting, bending, twisting, pushing or pulling. At this time, the plaintiff was working 20 hours per week. Dr Boffa thought that further treatment might assist in this regard and recommended the reinstating of the physiotherapy, this representing something of a U-turn from his previous position. He reported again on 3 April 2014, but this appears to have been principally for the purpose of assessing whether Pilates represented an appropriate treatment. Dr Boffa considered 12 weeks of treatment to be reasonable.
27 Dr Boffa saw the plaintiff again on 2 June 2014. By this time, the plaintiff was not working. The plaintiff apparently told Dr Boffa that his employer was providing him with no work. He was only able to play the piano for half an hour at a time and, for that reason, had left the Heidelberg Symphony Orchestra. He had also ceased playing the cello, because he could not hold the instrument. Basically, Dr Boffa expressed the view that the plaintiff was able to work 20 hours per week, with all the restrictions that have previously been mentioned being in place. He thought that the teaching of music would be ideal work for the plaintiff, but did not express any particular opinion as to what restrictions might apply in that regard.
28 The defendant has also had the plaintiff seen by Dr Dominic Yong, specialist occupational physician. Dr Yong saw the plaintiff on 2 June 2016. Dr Yong took a detailed history. The plaintiff was complaining of pain in the low back around the mid-line and more on the left side. There were flare-ups, with pain that could last for a few days or up to three weeks, these flare-ups occurring one or two times per months. Dr Yong summarised the situation as being that the plaintiff was a man who had had an initial discal injury to his lumbar spine, but with no current features of radiculopathy. He felt that the plaintiff had a current capacity for work, but with much the same restrictions as had been expressed by Dr Baker in relation to bending, twisting, pushing, pulling, varying posture, lifting more than 5 kg on a repeated basis and the like. He also thought that there would have to be an initial reduction in working hours.
29 Dr Yong provided a supplementary report on 14 July 2016. He did not see the plaintiff again for the purposes of this report. In this report, he commented upon various suggestions of suitable employment contained in a Vocational Assessment Report of CoWork Pty Ltd. Essentially, he thought that suitable work for the plaintiff would be as a music teacher or that of an internal sales clerk, dealing with musical instruments. As far as a suggestion that the plaintiff could program and operate a Computer Numerically Controlled Machine, Dr Yong thought that the role would require individual assessment. The same could be said for the role of a process worker. He thought that the role of an Estimator was likely to comply with restrictions and would be considered suitable work. Dr Yong was also of the view that a graduated return to work program, commencing with four hour shifts, four days per week, would be necessary.
30 That concludes the summary of the medical material. I turn now to the issues of diagnosis, aggravation, psychiatric or psychological components and permanence.
31 Whilst there is no great difference between the various diagnoses, I prefer those of the treating medical practitioners and particularly that of Mr Wilde. The diagnosis of Mr Wilde was of mechanical lumbar back pain secondary to an annular tear of the lower lumbar discs. Dr Michaelson has simply referred to it as a lumbar disc injury. Professor Bittar, neurosurgeon and spinal surgeon, has diagnosed the injury as the aggravation of lumbar spondylosis, but with the most likely source of pain being injury to the intervertebral lumbar discs. I prefer these views to those of the occupational physicians who were, to a considerable extent, directing their investigations to matters of work capacity, rather than diagnosis. In any event, I accept that the plaintiff has suffered a discal injury to his lumbar spine.
32 To the extent that the injury may involve aggravation of a pre‑existing condition, and some diagnoses include this, only the consequences of such aggravation can be taken into account. However, I accept that, essentially, the plaintiff had suffered no prior lower back symptoms before performing the Amcor work. Accordingly, it seems to me that the consequences and symptoms from which the plaintiff suffers result directly from the relevant and accepted injury.
33 In relation to psychological and psychiatric consequences, pursuant to s134AB(38)(h) any psychological or psychiatric consequences of the physical injury cannot be taken into account. There are references in some of the reports, and particularly those of Dr Baker, to the existence of non-physical components. There are no reports before me from any psychologist or psychiatrist, either treating or medico-legal. The overall impression created by the reports from Dr Michaelson and Mr Wilde, who have treated the plaintiff, is that this is essentially a physical injury. In any event, in accordance with s134AB(38)(h), any psychological or psychiatric consequences of the physical injury will not be taken into account.
34 I am also satisfied that the relevant consequences of the injury are permanent within the meaning of the Act, in that they will persist for the foreseeable future. In his report of 22 October 2013, Mr Wilde described the plaintiff’s condition as stabilised and the prognosis as being guarded. Professor Bittar has stated that the restrictions on the plaintiff’s employability and his partial incapacity are permanent. He has also said that the plaintiff is likely to continue to suffer from significant pain and disability into the foreseeable future. The permanence of consequences was not an issue which received any great attention during the conduct of this case. It scarcely warranted a mention in the closing address of either counsel. That is no criticism of them. It is simply that this was not an issue upon which attention was focussed. In short, I am satisfied that the consequences of the plaintiff’s injury are permanent, in that they will persist for the foreseeable future.
Other developments since the injury
35 As has been stated, the plaintiff returned to employment with the defendant and was sent to a different place of work. This appears to have been at the Skilled Engineering site in Coburg. There he performed light, part-time duties, generally for 12 hours per week, although this briefly increased to 20 hours per week. The plaintiff ceased work on 28 November 2013. The defendant ultimately terminated his employment in approximately October 2014.
36 The only work which the plaintiff has done since has been his piano teaching. This commenced in approximately mid-2015. Originally, he was teaching one student for one hour per week and was paid $50 for this. Approximately a week before the commencement of this case, he obtained a second pupil, this student reaching him through an advertisement on an internet site. This new student is taught once a week for an hour and the plaintiff also receives $50 for it. In this regard, he has Grade 8 Piano qualification and is doing further studies. He is hoping ultimately to obtain an Associate Diploma in Music Performance, but that is apparently a difficult thing to get. This would probably enhance his teaching qualifications, but he described it as one of the “bare minimums” – see T24. He also gave evidence that he has difficulty playing the piano for more than limited periods, one of the problems being the position in which the arms have to be held.
37 The plaintiff also stated that he did not know of any full-time music teachers, as opposed to full-time teachers at schools. The plaintiff’s aim is to increase the number of students whom he is teaching to something in the vicinity of 10 per week. He believes he could cope with that, but obviously not on the one day – see T44. He also stated that he was only teaching Grade 1 and 2 Piano. He was not of the view that he could work full-time. He stated, “I know how much I can do before I am in excruciating pain” – see T51. He has been advertising his piano teaching for some two to three years and has only had the two responses. He believes that he could manage two hours a day, five days a week in relation to that teaching. He does not have a Diploma of Music, which seems to be the bare minimum for teaching in schools. In any event, as described, the teaching work in which he has engaged has involved only one student, one hour per week, until the recent acquisition of a second pupil.
Ruling
(a) Loss of earning capacity
38 I am satisfied that the plaintiff has discharged the burden of proof in relation to his application for leave to bring proceedings for pecuniary loss damages. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(i)As I observed earlier, the credit of a plaintiff in a case such as this is usually important. As was said by Brooking J in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi (1998) 4 VR 439 at 448:
“Moreover, in ‘serious injury’ applications the credit of the applicant is of great importance …”.
This observation has been referred to by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 and, more recently, in Haidar v Transport Accident Commission [2016] VSCA 182.
The present case is one in which credit and reliability are important. I regard the plaintiff as being a reliable witness.
(ii)It is obvious that the plaintiff has a capacity for work and to earn income, but, in my opinion, such capacity is limited to part-time work. I prefer and accept the opinion of the plaintiff’s treating general practitioner, Dr Michaelson, who has known the plaintiff for many years and prior to his suffering the injury the subject of this application. In recent times, Dr Michaelson has been of the opinion that the plaintiff is only capable of 12 hours’ work per week on the basis of four hours per day, three days per week, and with restrictions. He is aware of the plaintiff’s musical ability and his current part-time teaching. Professor Bittar has also seen the plaintiff recently. He is also aware of the plaintiff’s musical ability. He has expressed the view that the plaintiff has the capacity to teach music for up to 12 hours per week and that this situation is permanent. I would also point out that, when the plaintiff returned to work, it was on a part‑time basis performing restricted duties, and that he was forced to cease such work because of the severity of his symptoms – see his affidavit of 19 May 2015. In summary, I accept that part-time employment performing quite restricted duties, such as teaching the piano, is suitable employment for the plaintiff.
(iii)Given that the plaintiff has a capacity for employment, the provisions of s134AB(38)(e) and (f) require consideration. Of course, in addition the requirements of s134AB(38)(c) must be satisfied. I shall turn firstly to s134AB(38)(f) and the issue of what has been described as “without injury” earnings.
The evidence put before me indicates that the plaintiff’s total taxable income for the financial year ending 30 June 2012 was $85,046.00. It was argued by Mr Moulds that the full pattern, described as the plaintiff’s return on capital, should be examined. He referred me to the decision of the Court of Appeal in The Herald & Weekly Times & Anor v Jessop [2014] VSCA 292, effectively arguing that the present situation represented what could be described as “the other side of the coin” of the situation in that case. He argued that, if a plaintiff has earned income or had return on capital in a particular period or year, which is way beyond that which such income has ever been before, then that should be taken into account in fixing the figure that most fairly reflects the “without injury” earning capacity. Certainly the plaintiff’s 2012 earnings were more than double what he had earned in the previous financial year and more than treble what he had earned in the 2010 financial year.
However, I do not accept the argument advanced by Mr Moulds. In Jessop, the interpretation of s134AB(38)(f)(ii) was discussed. The Court of Appeal effectively said that there were four alternative scenarios which were qualified by the phrase “as most fairly reflects the worker’s earning capacity had the injury not occurred”. The first of these is the gross income (expressed at an annual rate) that the worker was earning from personal exertion. The Court of Appeal also quoted, with approval, what was said by J Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 as follows:
“In most cases, the inquiry will be relatively simple; the wages at [the] time of injury will be established (scenario (a)) and generally, as the Second Reading Speech makes clear, the only other question will be determining whether, pursuant to scenario (c), there has been an increase or decrease in wages and the prospects of promotion”.
In the present case, the “relatively simple” inquiry described by J Forrest J in Acir seems to be applicable. That is particularly so when it is remembered that what is involved in s134AB(38)(f)(ii) is a comparison of what an injured worker had the capacity to earn in the three year periods prior to and following the accident. It is a measuring of capacity against capacity. Bearing this in mind, it seems comparatively clear to me that the plaintiff had demonstrated a capacity of earning a gross income of $85,046.00. His earlier earnings may have been less. However, I fail to see why the plaintiff’s actual gross income, expressed at an annual rate, cannot or should not be what he was actually earning in the financial year before his injury. It seems to me that this most fairly reflects his earning capacity had the injury not occurred.
Accordingly, I fix his “without injury” earnings at $85,046.00.
(iv)There is then the question of his “after injury” earning capacity. As stated, in this regard, I prefer and accept the opinions of Dr Michaelson and Professor Bittar that the plaintiff has a capacity for employment, but that it is limited to 12 hours work per week. It also seems to be consistent with the views and diagnoses of the treating physiotherapists and that of the plaintiff’s treating orthopaedic surgeon, Mr Wilde. If that be so, the plaintiff’s “after injury” earning capacity is based upon approximately 12 hours of employment, whether it be self-employment or external employment, per week. If the work were available, the occupation for which, on a part-time basis, the plaintiff seems to have the capacity is that of a piano teacher. Currently, he is only able to obtain two hours per week doing this work. However, if he could obtain work for, say, 12 hours per week in accordance with the opinions of Dr Michaelson and Professor Bittar, his earnings would be $600 per week or $31,200 per year. The report of CoWork Pty Ltd of 7 July 2016, and being a report organised by the defendant, puts the highest average hourly rate for a job for which the plaintiff is allegedly suitable at $48.24. Such potential employment, which is in the occupation of an Estimator, comes with the proviso that an Estimating Course is required to be completed. The plaintiff has had no such training. Even if he had, the average gross hourly rate is $48.24, which is a lower hourly rate than that of the $50 which the plaintiff is charging for his music teaching. As stated, employment for 12 hours per week in such an occupation would produce a gross annual income of $30,102. Sixty per cent of the plaintiff’s “without injury” gross annual income is $51,028. To reach that figure, by my calculations, the plaintiff would be required to work just over 20 hours per week. If, for example, the CoWork suggested position of an internal sales clerk was appropriate, the plaintiff, even if working full-time, would not reach an annual gross income that was 60 per cent of the “without injury” earnings. What these calculations establish is that, for 12 hours work per week, there is no suggested suitable employment that comes anywhere near to producing a gross annual income that is within 60 per cent of the plaintiff’s “without injury” earnings. In other words, on that basis, a gross financial loss well exceeding 40 per cent has been established.
(v)Thus, the requirements of s134AB(38)(e) and (f) have been satisfied. The plaintiff has established the required loss of earning capacity of 40 per cent or more. Those aspects of the statutory test have been satisfied.
(vi)I am also satisfied that the requirements of s134AB(38)(c) have been satisfied. When the required comparison is made, the plaintiff’s loss of earning capacity is fairly described as being more than significant or marked and as being at least very considerable. He is a thirty-four year old man who is now only able to work part-time and can no longer work as a dogman and rigger, being the occupations in which he could previously engage and for which he holds qualifications. He will suffer a very substantial financial loss each year for the foreseeable future.
(b) Pain and suffering
39 Given that the burden of proof has been discharged in relation to pecuniary loss damages, the plaintiff is also successful in relation to his application concerning pain and suffering damages. In this regard, I would refer to the decision of the Court of Appeal in Advanced Wire and Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 and to many decisions of this Court.
40 I might say that, were it necessary, I would be of the view that the plaintiff has discharged the burden of proof in relation to pain and suffering. He can no longer play the cello. He can only play the piano for limited periods. He is never free from back pain, the level of which fluctuates. He has restrictions in relation to everyday activities. There is interference with his sleep. He enjoyed the work in which he was engaged and which is now beyond his capacity.
41 As stated, whilst there is no necessity for me to rule in relation to leave enabling the plaintiff to pursue pain and suffering damages, it is an application to which I would have acceded in any event.
Conclusion
42 The plaintiff is successful. Leave is given to him to bring proceedings in relation to both pain and suffering and pecuniary loss. I shall hear the parties as to any ancillary orders that are required.
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