Sir v Victorian WorkCover Authority [2024] VCC 1604 (16 October 2024)

Last Updated: 18 October 2024

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-24-01289

CHAD SIR	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PURCELL
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2024
DATE OF JUDGMENT:	16 October 2024 (ex tempore)
CASE MAY BE CITED AS:	Sir v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2024] VCC 1604

REASONS FOR JUDGMENT
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Subject: WORKPLACE INJURY

Catchwords: Serious injury – injury to the wrist – psychiatric injury – pain and suffering consequences – pecuniary loss consequences – worker under 26 years of age – range

Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited: Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Jiwani v 7 Chefs Pty Ltd [2023] VCC 1127; Margriplis-Hampton v Spendwatt Pty Ltd [2022] VSCA 15

Judgment: Leave granted to the plaintiff to commence a proceeding for pain and suffering damages. Leave refused to commence a proceeding for pecuniary loss damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison KC	Slater + Gordon
	with Mr L Allan
For the Defendant	Mr L Howe	Wisewould Mahony

HIS HONOUR:

Introduction

1. The plaintiff in this proceeding is Mr Chad Sir. He is, in my world at least, a young man, born in June 1999.
2. It seems to me that he is almost the quintessential example of a young man well suited to physical work. As he explained to me in the witness box, his father had a background in logistics who took up employment as a personal trainer. He has a brother who is an electrician. He left school at a young age because, again accepting his evidence which I do, he did not enjoy the academic aspect of it as much. He then went on to obtain an apprenticeship as a carpenter.
3. He had a previous injury to the right little finger, noting that he is right hand dominant but, notwithstanding that, returned to work as a carpenter. I should say he struck me, having seen him in the witness box and having considered the whole of the evidence, as a likeable straight forward stoic young bloke who's done well upon leaving school to get himself into a trade and work at his trade.
4. Notwithstanding the submission on behalf of the defendant, at the outset I don't consider this to be a credit case. In any event, when he was 18 years of age he was working for a building company, Midacon Constructions, apparently mostly doing framing for domestic housing. There is no dispute that on 6 December 2017 he was involved in an incident which caused him to put his right hand through a pane of glass and suffer a very nasty laceration injury to the right hand and upper arm, described as a right ulnar nerve injury, a laceration to the ulnar nerve artery, and a right flexor carpi ulnaris tendon injury.
5. That, as I say, was a very nasty laceration which understandably required emergency treatment at hospital, including surgery to repair the laceration. Following that surgery, he then underwent several review attendances at the Footscray/Sunshine Hospital and had some hand therapy. That took its course by about March 2018, by which stage the plaintiff had returned to work. I note that he returned to work for a period of time with his pre-injury employer before then moving to an organisation called Rugalino Barnard Elite Constructions where he completed his apprenticeship, before going on again to work for Encore Projects and more recently with BGIS Technical Services as a maintenance carpenter.
6. The defendant raises an issue in this proceeding, the fact that the plaintiff has not had much treatment but the rhetorical question which I think is answered in his favour is, what treatment should he have had? First, I note that he was an 18-year old man, and I don't expect him to have a level of sophistication perhaps consistent with others in the court.
7. I accept his evidence that his approach and his family's approach was just to get on with life, and that indeed is entirely consistent with what he has done. I note in more recent times he has returned to see a general practitioner and has been prescribed medication for nerve pain, known in the trade as Lyrica, which he has now taken for several months. Whilst the evidence is limited, it seems that that is medication that he is going to require long-term to manage nocturnal symptoms and sleep.
8. Again, the rhetorical question is, what treatment would he have had with a greater level of sophistication so as to sort it at an earlier age? It seems the likely answer to that is the medication that he is now prescribed. When I get to the medico-legal evidence, I note that there is some discussion in the report from Dr Crock that there might be a procedure available to straighten the right little finger, but as Dr Crock notes, that will not improve the nerve damage and the symptoms caused by that. It may give him some improved cosmetic appearance and possibly some improved function of that finger, but equally I note that it is not an operation that Dr Crock says must be undertaken and I note the plaintiff in his affidavit material, in my view, reasonably says he is worried about having further surgery.

Pain and suffering consequences

9. In any event, returning to the issues in this proceeding, the plaintiff's evidence, which I accept, is that he has returned to employment as a carpenter. As I noted, he was able to complete his apprenticeship. The plaintiff's evidence, which I also accept, is that he struggled with the heavier aspects of that carpentry work, and he was fortunate enough in April of 2022 to obtain employment as a maintenance carpenter.
10. His oral evidence, which I accept, is that he spends no more than one and a-half hours a day on the tools as it were, and some days, he doesn't spend any time on the tools. Indeed, it is the type of job that I think I can take judicial notice of that often is pursued by older workers because of the lighter nature of it. In any event, in that employment, he has been able to work full-time including overtime and he earned over $100,000 gross per annum, which is more than he was able to earn previously.
11. Notwithstanding that he has continued to work, I accept that he does have symptoms with heavy carpentry work. I accept that at times he does have difficulty with the heavier aspects of his current maintenance carpenter role. I accept his evidence that he has difficulty with dexterity, for example, even with simple activities such as brushing his teeth. I accept his evidence that it interfered with his ability to play football although equally it could be thought that that would be interfered with by being busy in employment and other activities.
12. Broadly, I accept the restrictions as set out in his affidavit material. Whilst he was challenged broadly in cross-examination, various histories given to doctors were put to him and he stuck to his guns. I accept the evidence in his affidavit that he doesn't like painkillers and avoids them.^[1] I accept his evidence that, at that stage, he thought there was nothing more that could be done with his condition and he was simply putting up with it.^[2]
13. I accept his evidence that he has ongoing pain, tingling, some decreased range of movement, some decreased range of strength and some limitations including for gripping. I accept his evidence that his hand locks. And I accept his evidence in cross-examination that when he was doing the heavier carpentry work he was suffering at night with increased pain such that he had trouble doing much at all.
14. I accept his affidavit evidence that even simple tasks and fine motor tasks are difficult. More recently in his affidavit sworn October this year, I accept that he now requires Pregabalin or Lyrica for pain, which has a drowsy effect on him such that he can't take it before work. I also accept his evidence that he requires regular Panadol.
15. In the often-quoted words of Appeal Justice Dodds-Streeton,^[3] the need for ongoing strong medication is often a relevant indicia towards “serious injury” although of course is not determinative of that issue.
16. I accept the evidence in his recent affidavit that the right hand is weaker than it used to be. And again, delicate or fine activities including brushing his teeth, grooming and the like are difficult.
17. The defendant refers to cases such as TTB SMS v Reading^[4] to highlight the proposition that the court must consider all range of possible impairments, not just those that come before the courts.
18. In final submission, counsel for the defendant accepted that there is some limited impact on right hand dexterity; some limited pain with activity; a need for Lyrica; and some modification for work as well as some loss of grip strength.
19. The submission on behalf of the defendant, at the risk of doing it an injustice, was that the condition was simply not “very considerable” as that phrase is well understood from the authorities.
20. At the risk of quoting my own authorities, I have said on several occasions in serious injury applications that there are some injuries that are clearly serious and some that are clearly not and some that sit more in the middle of range of possible impairments.^[5]
21. In my view, I consider this to be not such a case. I note the plaintiff is a very young man with an injury to his dominant right hand which impacts his dexterity and ability to undertake even simply day to day activity. I note that he has had to modify a range of simple day to day activity. I accept his evidence that for some aspects of things that are pleasurable for him, such as going to the gym, he has also had to modify.
22. In my view in the consideration of the possible range of impairments, the plaintiff's right-hand injury comfortably reaches the test of “very considerable” in respect to pain and suffering consequences.

Pecuniary loss consequences

23. As mentioned, the plaintiff is under 26 years of age and was under 26 years of age when he was injured. In this proceeding, the relevant legal principles are well-known and not in dispute. The plaintiff must demonstrate in accordance with ordinary common law principles that he has a loss of earning capacity of 40 per cent or more, which in accordance with s325(2)(e)(ii) of the Workplace Injury Rehabilitation and Compensation Act 2013 will be productive of ongoing financial loss of 40 per cent or more.
24. In final submission, his senior counsel candidly conceded that, based on his current earnings as a maintenance carpenter, the plaintiff would need to demonstrate that without injury, he would have the capacity to earn something around $175,000 to satisfy the test for economic loss. His senior counsel also noted candidly that, in the Flexi Personnel report, assuming the plaintiff had gone on to be a project builder and assuming that I accept his evidence that that is what he intended to do, then the median gross annual earnings for that job is $157,500, and so the plaintiff would fail to satisfy the test for pecuniary loss serious injury if that is what I took the “before injury” earning capacity to be.
25. A couple of things should be said. First, I accept that there is some merit in the submission by counsel for the defendant that the plaintiff has an evidentiary onus such as was discussed by the Court of Appeal in Margriplis-Hampton v Spendwatt Pty Ltd.^[6] That decision really stands for the proposition that even if a tradesperson had ambitions to go onto more highly-skilled and better paid trade-type employment, he still has an evidentiary onus to discharge as to what that means.
26. I note in this proceeding there is no lay affidavit evidence from the plaintiff's father, including relevant matters such as what the plaintiff could now earn as a personal trainer. I also note that there is no evidence from pre-injury employers or colleagues that he may have met through the building industry who could have given evidence as to his ability as a carpenter or builder and what his earning potential was.
27. Whilst I formed a positive view of him in respect of credit, I am not sure that his evidentiary onus is discharged by me simply forming a positive view of him and therefore assuming that he would have gone on to earn something like the high or experienced figure for a builder as set out in the Flexi Personnel report. In other words, I think there is an evidentiary onus which the plaintiff has failed to discharge. But leaving that to one side on the evidence before me, I see no reason why I should not accept as the best evidence the figure of $157,500 in the Flexi Personnel report. Accordingly, accepting that figure, then even on the slightly easier loss of earning capacity test for a person under the age of 26, the plaintiff fails to demonstrate the requisite loss.

Conclusion

28. Accordingly for the reasons expressed, I propose to grant leave to the plaintiff to commence a proceeding for pain and suffering damages. I refuse the application so far as it relates to pecuniary loss “serious injury”, and I shall hear from the parties as to relevant consequential orders.

Postscript

29. I have not gone to the medical evidence in any detail because I do not think I need to do so. It really is ad idem, as highlighted by the ten pages in the defendant's court book – which is a compliment, not a criticism. It seems to me, as I have said again in another case – at the risk of becoming in love with my own comments – that almost everything is agreed in this case, except the result.

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^[1] Plaintiff’s court book 13, paragraph [13]

^[2] Ibid

^[3] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267; (2007) 17 VR 592

^[4] [2020] VSCA 203

^[5] Jiwani v 7 Chefs Pty Ltd [2023] VCC 1127

^[6] [2022] VSCA 15