Withoos v Nobes Motor Company Pty Ltd
[2024] VCC 521
•1 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04580
| BILL HENRY WITHOOS | Plaintiff |
| v | |
| NOBES MOTOR COMPANY PTY LTD (ABN 55 609 550 576) | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 April 2024 | |
DATE OF JUDGMENT: | 1 May 2024 | |
CASE MAY BE CITED AS: | Withoos v Nobes Motor Company Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 521 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the lower back – whether the pain and suffering consequences are “serious” under the Act – whether the plaintiff has satisfied the statutory test of loss of 40 per cent of income-earning capacity due to the injury – the plaintiff was under twenty-six years of age at the time of injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:State of New South Wales v Moss (254) NSWLR 536
Judgment: Leave is granted to the plaintiff to bring common law proceedings to recover damages for pain and suffering. The application by the plaintiff for leave to recover damages for loss of earning capacity arising out of the physical injury to his lower back in the course of his employment with Nobes Motor Company Pty Ltd is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Ms F Blair | Shine Lawyers Pty Ltd |
| For the Defendant | Mr M K Clarke | Russell Kennedy Lawyers |
HIS HONOUR:
1This is an application brought by Originating Motion, whereby the plaintiff applied for leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for injury suffered in the course of his employment with Nobes Motor Company Pty Ltd (“the defendant”) on 5 September 2019.
2At the commencement of the proceedings, Mr Clarke, counsel for the defendant, conceded that the plaintiff had been granted a certificate to recover damages for pain and suffering as a result of an injury to his lower back which occurred during the course of his work at his place of employment. This was a reasonable and appropriate concession to make by the defendant. It was conceded by the defendant that the plaintiff was under twenty-six years of age at the time of the injury to his lower back.
3Mr Ingram KC, Counsel for the plaintiff, abandoned any claim for serious injury arising from psychological, or psychiatric or mental disorder that the plaintiff has, or is, suffering as a result of his employment.
4Mr Clarke, on behalf of the defendant, identified the following issues in this application as follows:
(a) the plaintiff does not satisfy a loss of earning capacity greater than 40 per cent of his “without injury” earnings;
(b) the plaintiff has capacity to work full time in suitable employment.
5The following evidence was adduced in the course of the hearing:
· The plaintiff gave evidence and was cross-examined.
6The plaintiff tendered the following exhibits:
· Exhibit “A” ꟷ the Plaintiff’s Amended Court Book (“PCB”) pages 6 to 23, pages 111 and pages 125 to 133.
· Exhibit “B” ꟷ a bundle of invoices with the heading “page of Bill Withoos Invoice List by date” – (there were a total of five invoices).
· Exhibit “C” ꟷ Defendant’s Court Book (“DCB”) pages 145 to 190.
7The defendant tendered the following documentation:
· Exhibit 1 – Defendant’s Court Book, pages 16 to 50 and page 200.
8The plaintiff’s credibility was not in issue in this case. I found the plaintiff to be vague and on occasion forgetful, but at no stage did he exhibit any traits of being deceitful or attempting to mislead the Court.
The statutory scheme
9The legal principles and statutory provisions relating to applications for serious injury under the Act were well known to both parties and were not the subject of any direct submission or discussion. The main issue in this case was the fact that the plaintiff was under twenty-six years of age at the time of the injury. Following from that fact is the matters the Court is required to take into account when assessing whether or not the plaintiff has satisfied the statutory test for loss of earning capacity greater than 40 per cent.
10The statutory provisions of measuring the loss of earning capacity, as set out in ss325(f) to (g) of the Act are not relevant in this application for serious injury. The calculation for loss of earning capacity in this case is to be done in accordance with the common law principles enunciated by Heydon JA (as he then was) in the case of State of New South Wales v Moss.[1] A summary of those principles is as follows:
(a) The evidence of past economic loss is some, though not conclusive, evidence of a reduced earning capacity;
(b) It is generally desirable to have precise evidence of what the plaintiff would have been likely to have earned before the injury and what he is likely to earn after it;
(c) In a case where the plaintiff has suffered a significantly-disabling injury which affects the range and nature of work he can perform, the Court, without specific evidence of what other persons with this kind of disability can earn, makes a judgement and assessment on a percentage basis, or otherwise, of the value of loss of capacity;
(d) The compensable loss is not a loss of income, but the loss of capacity to earn income in a manner productive of a financial loss. It is an issue of calculating the damage to a capacity to carry out various careers. It is an exercise of possibilities, not proof of probabilities;
(e) The mere fact that the quantum of damages is difficult to assess does not mean the plaintiff is unentitled to a nominal sum;
(f) The task of the tryer of fact is to perform a discretionary judgement by reference to not-wholly determinative criteria within a fairly wide parameter.
[1](2000) 54 NSWLR 536
11I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial on an action and, in doing so, disclose my pathway of reasoning in dealing with the evidence and the issues raised in this application. The above principles are to be complied with in the determination of whether or not the plaintiff has satisfied a loss of earning capacity of greater than 40 per cent as a result of the injury to his lower back.
The Plaintiff’s background
12At the time of the hearing, the plaintiff was twenty-five years of age, soon to turn twenty-six. At the time of the injury, he was twenty-one years old.[2]
[2]PCB 7
13The plaintiff completed his Year 11 education at Swan Hill College at the age of seventeen years.[3] The plaintiff then commenced work as an apprentice motor mechanic with the defendant in Swan Hill. The plaintiff completed his apprenticeship and was employed as a qualified mechanic technician from 22 July 2019.[4]
[3]PCB 7
[4]PCB 32
14The plaintiff lives in a de facto relationship. He has a stepchild and a child of his own that lives with him and his de facto partner, Chloe Robertson.
15The plaintiff returned to work on light duties for a short period of time, but ultimately his employment was terminated in September 2020. The plaintiff remained on weekly payments until October 2021.
16In November 2021, the plaintiff commenced work as a disability support worker.[5] The plaintiff has been working for Ongoing Support, which is a disability provider, from November 2021 until the present time. The pay records for the plaintiff were set out in Exhibit “C”.
[5]PCB 9
17The plaintiff was also engaged in assisting, or working with or for his father and uncle in fencing-type employment. In the course of the hearing, the plaintiff had tendered five invoices between 7 February 2024 and 8 March 2024 for work he had performed for either his father (T & H General Maintenance and Fencing) or his uncle (JW Home Maintenance). The plaintiff gave evidence that he had worked four days in the last week for his father in a fencing job. The plaintiff’s evidence was that he has been on paternity leave from the disability support worker role since January this year.
18The plaintiff stated he is not having any active medical treatment at the present time. His evidence is that he takes two or three Panadol Osteo on a daily basis. He no longer takes opioid medications, which he has taken in the past. His general practitioner, Dr Stewart Booth, unfortunately passed away in the early part of 2024 and the plaintiff has not sought out a further general practitioner.
19The plaintiff has received counselling from psychologists, but that is not part of this application.
20Under cross-examination, the plaintiff stated that he could probably work forty hours a week as a disability support work.[6]
[6]Transcript (“T”) 68, Lines (“L”) 18-20
The Plaintiff’s medical evidence
Radiological examinations
21The plaintiff underwent a CT scan of his lumbar spine on 12 September 2019. The conclusion from that examination was:
“Small posterior disc bulges at L4/5 and L5/S1 but no neural compression seen.”[7]
[7]PCB 33
22The plaintiff then underwent an MRI examination of the lumbar spine on 3 December 2019. The findings on that examination were as follows:
“1. There are small posterior disc protrusions with early disc desiccation at the lower three lumbar levels with an annular tear at L3/4. This may result in discogenic pain and clinical correlation is recommended.
2. Only minimal lower lumbar facet joint arthropathy with L5/S1 mild to moderate neural exit foraminal narrowing worse on the left. Exiting L5 nerve roots may be contacted but do not appear significantly compressed.
3. Allowing for congenitally short pedicles, there is no significant canal stenosis or evidence of traversing nerve root compression in the lumbar spine.”[8]
[8]PCB 36
Dr Stewart Booth, general practitioner
23The plaintiff has been treated by Dr Stewart Booth, who was his general practitioner. Dr Booth has prepared a total of four reports in respect of the plaintiff, dated 8 February 2020, 3 March 2020, 17 March 2022 and 23 July 2022. As previously stated, the plaintiff gave evidence that Dr Booth passed away in early 2024.
24In his report dated 23 July 2022, Dr Booth states, in respect of the plaintiff’s capacity for work, as follows:
“He is fit to engage in graduated work of a light, sedentary nature not involving repetitive standing, sitting, bending or climbing with additional restrictions on lifting.”[9]
[9]PCB 61
25Dr Booth then set out the limitations on the plaintiff’s abilities as follows:
“Limits on continual standing of 30 min’s
Limits on continual sitting of 60 min’s
Minimal climbing or bending or lifting
Limits on lifting of 5 Kg facing, and 2.5kg Side on.”[10]
[10]PCB 62
26In Dr Booth’s opinion, the plaintiff could have a graduated return to full-time work.
27In respect to the physical injuries, Dr Booth diagnosed the plaintiff has having multilevel lumbar back strain.
28In summary, Dr Booth’s opinion was that the plaintiff was fit to engage in graduated work of light sedentary employment not involving repetitive standing, sitting, bending or climbing, with additional restrictions on lifting.[11] Dr Booth had advised the plaintiff against returning to work as a motor mechanic.
[11]PCB 62
Dr David Fish, consultant occupational and environmental physician
29Dr Fish consulted with the plaintiff by way of Zoom on 2 November 2022. The report he prepared was for medico-legal purposes of this case. In Dr Fish’s opinion, the plaintiff was suffering from persistent lumbar discogenic pain with referred symptoms to his left leg.[12] Dr Fish noted that the present disc degeneration is largely a constitutional condition. Dr Fish’s opinion was that the plaintiff had no capacity to perform his full pre-injury employment as a motor mechanic on a consistent and reliable basis.[13]
[12]PCB 69
[13]PCB 69
30Dr Fish was asked to give an opinion on the plaintiff’s capacity to work as a policeman or protective services officer given the state of his lumbar spine. In Dr Fish’s opinion, the plaintiff could not perform those standards required of a policeman or protective services officer.
31Dr Fish was asked to give his opinion in respect of the plaintiff’s ability to perform the task of customer service representative, call centre and contact centre operator, delivery driver, truck driver and as a personal/disability transport service worker. In respect to the first four of those occupations, Dr Fish’s opinion was the plaintiff could not work as a truck driver. In respect of the other three jobs of customer service representative, call centre and contact centre operator and delivery driver, Dr Fish’s opinion was, as at November 2022, the plaintiff had a capacity to do that work for sixteen hours per week.
32In respect to the job of personal/disability transport service worker, Dr Fish noted that the plaintiff was working in that activity. He said he had a history from the plaintiff that he was barely managing with the task. In Dr Fish’s opinion, the plaintiff could increase his hours of work from sixteen to twenty hours per week in the capacity of a personal disability support role.[14] Dr Fish’s assessment is relevant for an assessment conducted in November 2022.
[14]PCB 71
Dr Hazem Akil, neurosurgeon
33The plaintiff was examined by Dr Akil for the purposes of medico-legal reporting. Dr Akil prepared two reports, dated 19 January 2023 and 21 March 2024. Mr Akil examined the plaintiff on the first occasion at a clinic in Bendigo on 19 January 2023. For his most recent report, Dr Akil had a teleconference by Zoom with the plaintiff on 21 March 2024. Dr Akil did not have a history from the plaintiff of his work with his father or uncle. Exhibit “B” covers the period of 7 February 2024 until 8 March 2024, which is the month immediately prior to the most recent examination by Dr Akil. Those invoices set out that the plaintiff was in fact assisting his father and uncle in the conduct of their fencing and/or house maintenance work. Dr Akil noted that the plaintiff was working as a casual support worker since 2021 and that, at the time of his assessment of the plaintiff in March 2024, he was on paternity leave.
34Dr Akil diagnosed the plaintiff as follows:
“I remain of the opinion that … [the plaintiff] has a discogenic pain caused primarily by an annular tear as it is my findings on the clinical examination and radiological investigations. I am of the opinion that repetitive lifting particularly contributed significantly to his current condition and the incident that occurred in September 2019 was the tipping point that resulted in worsening of his pain.”[15]
[15]PCB 81
35Dr Akil’s opinion was, in respect of the plaintiff’s work capacity, as follows:
“I remain of the opinion that his current job as a support worker doing between 15-20 hours a week is appropriate with the modification and the physical duties that are currently involved in his job.”[16]
[16]PCB 81
36It is unfortunate that Dr Akil was not apprised of the more recent working history by the plaintiff and his ability to do the work that he described in his evidence in respect of his uncle and his father’s business.
Erin Williams, employment consultant
37Ms Williams prepared a report dated 15 March 2024 for the purposes of this application. Mr Ingram KC, on behalf of the plaintiff, relied upon page 15 of that report, which appeared at page 111 of the Plaintiff’s Amended Court Book. In particular, from that report, Ms Williams stated that the medical opinion was unanimous and that the plaintiff could no longer work in the role of a motor mechanic. The defendant accepts that to be the case. The opinion of Ms Williams went on to state as follows:
“In my assessment, his residence is likely to be a barrier to employment since regional/rural Victoria naturally provides fewer job prospects within a reasonable commuting distance and provides a more limited and competitive labour market.”[17]
[17]PCB 111
38At the time of the report, the plaintiff was residing at Mystic Park, which is a small rural community between Kerang and Swan Hill in Northern Victoria. The plaintiff has subsequently moved to Coralie, which is over the Victorian/New South Wales border from Nyah. Both Mystic Park and Coralie are equidistant from Swan Hill. In this case, the plaintiff has been employed on a casual basis as a disability support worker by his partner’s mother.
39In January this year, he re-activated his ABN and has given evidence that he invoices his uncle and father in the manner set out in Exhibit “B” for the work he does with them. He also gave evidence in the hearing that he was proposing to have his own clients, as he described them, in the disability support worker sector as an independent contractor. He gave evidence that his income would be $45 per hour as a disability support worker.[18]
[18] T58-T59
The Defendant’s medico-legal reports
Dr Joseph Slesenger, occupational physician
40Dr Slesenger prepared a report for medico-legal purposes on behalf of the defendant. The report is dated 15 October 2021. Dr Slesenger, in October 2021, examined the plaintiff and stated that he was able to work four hours per day, three days per week in a capacity with the following restrictions:
“● No push, pulling, carry or lift over 5 kg.
● No repetitive bending or twisting.
● No prolonged static postures.
● No exposure to whole body vibration.”[19]
[19]DCB 23
41Specifically, Dr Slesenger advised against the plaintiff returning to a role as a motor mechanic,[20] or the role of personal disability transport service job. Dr Slesenger was of the opinion the job demands lie outside the plaintiff’s capacity limits.[21]
[20] DCB 23
[21] DCB 24
42It is to be noted that the plaintiff, within one month of this report, was working as a disability support person for Ongoing Support, and continues in that employment.
The Medical Panel – Dr Eli Kotler and Dr Brendan Hayman, psychiatrists
43This Medical Panel opinion was related to the psychiatric examinations of the plaintiff. This report is irrelevant for the purposes of the determination of this application before the Court.
Dr Mary Wyatt, occupational physician
44Dr Wyatt examined the plaintiff on behalf of the defendant for the purposes of this litigation. Her report is dated 14 December 2023. Dr Wyatt noted a history from the plaintiff that he was taking Panadol Osteo three times a day and also using Mobic and Lyrica. The plaintiff’s evidence in the hearing was that he no longer used either Mobic or Lyrica for his pain. His evidence was that he continued to use Panadol Osteo.
45Dr Wyatt diagnosed the plaintiff as having chronic lower back pain with referred pain into his left leg. Dr Wyatt’s opinion was that returning to work as a motor mechanic would not be an appropriate way for the plaintiff to move forward. The risk of further injury to his back would be difficult. Her opinion was as follows:
“I think the disability support work he is doing is suitable. I note … [the plaintiff] said he is sore if he works more hours but the job is not physical, keeps him moving to some degree and I think it is appropriate for 30 to 40 hours a week of work.”[22]
[22]DCB 49
46I note, for completeness, that Dr Wyatt did not have a history from the plaintiff that he, on occasion, worked for his father and uncle.
Analysis
47Mr Ingram KC relied upon the evidence from Ms Williams to enliven the legal principles around workers who are living in remote regional rural areas and their capacity to obtain employment. In this case, the plaintiff has been able to obtain work with either his father or uncle on a casual basis and also with his partner’s mother on a casual basis. I do not accept the proposition that these are “protected” forms of employment. It is clear to me that the plaintiff has a capacity to undertake the work required by each of his “employers” (father and uncle) and Ongoing Support.
48The relevance of regional and rural Victoria in this case, is whether or not the plaintiff can secure, either directly, enough clients for his disability support work or, alternatively, that his employer, Ongoing Support, can obtain enough clients for him to service. There was no evidence before the Court about the number of NDIS recipients or the type of client that the plaintiff has the capacity to service as a disability support worker.
49In the examination of the records of Ongoing Support, which were Exhibit “C”, they reveal that the plaintiff’s hours of employment fluctuate between five hours per week and thirty-eight hours per week. On average, the plaintiff works as a disability support worker for approximately twenty hours per week. The payment records from Ongoing Support indicate that the plaintiff has a capacity to work a thirty-eight-hour week as a disability support person. In his own evidence, he says he could probably work forty hours per week as a disability support person. The Ongoing Support records do not assist in the proper determination of what the availability of work is for the plaintiff to perform.
50The accepted evidence is that the plaintiff’s gross income for the year ending 30 June 2023 was $28,903 from his work as a disability support worker. There is no evidence of income from his father or uncle for that same year. The gross income for the financial year ending June 2023, on the basis of an average of twenty hours per week as a disability support worker, is approximately 60 per cent of his “without injury” earnings ($49,000 annually). This figure does not include any work that the plaintiff now has a capacity to perform for his uncle or father, and the income derived from it, as set out in Exhibit “B”, while moderate, over a full month period, amounts to $2,273.70.
51The hours worked by the plaintiff are not clear from his evidence, but he states on the days working for his father or uncle, he works three to four hours per day for them. That income, over that period from February to March 2024, adds a further $500 plus gross per week to his income-earning capacity. The evidence in this case is, of course, that the plaintiff was on paternity leave while earning that particular income with his uncle and father. However, if the plaintiff was working a twenty-hour week with Ongoing Support and supplemented that income with his work for his father and uncle, his income would be in excess of $50,000 per year gross.
52The alternative calculation is that the plaintiff could work the forty hours per week as a disability support worker, as stated in his evidence, at the rate of $30 per hour. The gross income of $1,200 per week for fifty-two weeks, equals an annual income of $62,400. That income is a greater income than the “without injury” earnings figure of $49,000 to $50,000. It is also a figure that is 80 per cent of the intermediate gross salary for a mechanic in the present time of $76,000 per annum.[23] The gross income of $62,400 is also approximately 80 per cent of the intermediate or median figure for a personal carer working full time.[24]
[23]PCB 125
[24]PCB 125
53I accept the plaintiff’s evidence that he probably could work forty hours per week as a domestic carer. I am supported in that conclusion by the opinion of Dr Mary Wyatt, where she states that the plaintiff’s role as a disability support worker is suitable for him. In her opinion, it was suitable for the plaintiff to work thirty to forty hours a week in that capacity. If the plaintiff worked in a full-time capacity as a personal domestic carer, he has clearly failed to prove that he has suffered a 40 per cent loss of income-earning capacity due to the injury to his lower back.
54In the alternative, if the plaintiff was working on a casual basis as a personal carer and on a casual basis with his uncle and father, the plaintiff’s income would also be in excess of 60 per cent of his “without injury” earnings and does not satisfy the test of a 40 per cent reduction in earning capacity.
55In this case, the plaintiff submitted that he had an ambition to be a policeman and cannot pursue that career due to the injury to his lower back. The gross pay level for a senior constable is $106,000 gross per annum.[25] It was submitted the gross income level would establish a 40 per cent loss of income earning capacity due to the work-related injury.
[25] DCB 133
56The plaintiff, in his affidavit dated 31 March 2023, stated:
“In the longer term, had I not been injured, I had ambitions to join the Victoria Police Force because I had an interest in that direction and I believe that my injuries would preclude me passing physical examinations to obtain entry into that career.”[26]
[26] PCB 10
57The plaintiff relies on an affidavit of his father, Henry Withoos, sworn on 9 April 2024 for support on the issue of an ambition to be a policeman. In his affidavit, Henry Withoos states:
“When Bill was growing up, I remember he used to tell me he wanted to be a policeman. Even after he left school and became a mechanic, he’d still talk to me about wanting to join the police force at some stage in the future. Now, as a result of his back injury, I can’t see him achieving that dream.”[27]
[27] PCB 130
58In his evidence, the plaintiff agreed he had not made or taken any steps to enter the police force.[28] The plaintiff did not give a history to the Medical Panel examiners that he had an ambition or hope to join the police force prior to his injury.[29]
[28] T18
[29] T33
59The plaintiff has lived in a de facto relationship with Ms Chloe Robertson since 2019.[30] Ms Robertson met the plaintiff in 2018. Ms Robertson has deposed to many and extensive issues arising from the injury to the plaintiff’s back in her affidavit affirmed 28 February 2024.[31] Ms Robertson does not give evidence of any mention by the plaintiff that he had a plan or ambition to join the Victoria Police either before or after the injury to his back.
[30] PCB 25
[31]PCB 24
60I do not accept that the plaintiff has lost an opportunity to be a policeman. There is no evidence before the Court that prior to his injury with the defendant, he would have been a successful applicant to be a policeman. The plaintiff made no applications to the police force after he obtained his qualification as a mechanic. The statements to his father outlining a desire to join the police force, without more, is not sufficient to establish a career in the police force was even a possibility for the plaintiff.
61In conclusion, the plaintiff’s application for leave to commence proceedings to recover damages for loss of earning capacity as a result of his injury during his employment is dismissed.
Orders
62The plaintiff is granted leave to issue proceedings to recover damages for pain and suffering arising out of, and in the course of, his employment, in particular, on 5 September 2019, as a result of an injury to his lower back.
63The plaintiff’s application for leave to bring proceedings to recover damages for loss of earning capacity in respect of the injury to his lower back on 5 September 2019 in the course of his employment is dismissed.
64I shall hear the parties on costs.
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